No Capacity, No Medical Power Of Attorney – No Problem?

No Capacity, No Medical Power Of Attorney – No Problem?

A medical power of attorney should be part of even the most basic estate planning documents that every adult (assuming mental capacity) should have. This is a document whereby you chose whom you want to act as your agent and any alternate if you lack mental capacity to make medical decisions for you if you lack capacity. You would need sufficient mental capacity to sign this document. Health care providers can rely on the named agent’s decision as to the health decision to be made. Powers of attorney terminate on the death of the principal.

At our August workshop, one of the questions was about a relative who lacked mental capacity and had no medical power of attorney. The hospital advised her that no medical decision could be made without a medical power of attorney. However, this is not accurate under Texas law. If an adult patient of a hospital, nursing home, or of a home and community support agency or if the person is in jail and is comatose, incapacitated or otherwise mentally or physically incapable of communication, an adult surrogate (in order of a list of priority) who has decision-making capacity and is willing to consent to medical treatment on behalf of the patient can make a medical decision for the one who is incapable of making the decision and has no medical power of attorney.

The priority list as to who can act as a surrogate for the patient is as follows:

  1. the patient’s spouse;
  2. an adult child of the patient who has the waiver of all other adult children of the patient;
  3. a majority of the patient’s reasonably available adult children;
  4. the patient’s parents;
  5. an individual clearly identified to act by the patient to act before the patient became incapacitated, the patient’s nearest living relative or a member of the clergy.

However, no agent or surrogate can consent to voluntary impatient mental health services, electro-convulsive treatment or the appointment of another surrogate decision-maker.

The attending doctor would have to describe to the surrogate the lack of capacity of the patient and the proposed medical treatment as a prerequisite to consent by the surrogate.

Initially one might conclude the pecking order by law is what you might want – so why do you need a medical power of attorney? However, there are numerous scenarios where you may want a different order of individuals to make medical decisions for you if you lack capacity. For example:

  1. What if you have a significant other or if you are engaged? You might prefer that person rather than the priority list of the State.
  2. What if you have a bad relationship or become estranged from your spouse, parent or child?
  3. What if you think others are more likely to make the decision you would have made?
  4. What if your want more than one person to be the decision-maker?
  5. What if the one on the priority list has no idea of what you would want?

Additional problems of using a surrogate decision-maker is sometimes having to make a diligent search for a potential surrogate with the law. Furthermore, additional requirements of the attending doctor may delay a quick health-care decision being made.

Bottom line – you should make your own decisions on whom you want to serve as your agent by having a medical power of attorney.

If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.

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