Klenk Law

Medical Power of Attorney and the Primary Functions

Posted on Sat Jun 9, 2018, on Uncategorized

A Medical Power of Attorney is a document that is signed by a principal, a competent adult, that directs a person that the principal trusts to act as an agent and make healthcare decisions on the principal’s behalf should the principal be unable to make them for themselves, as an estate planning lawyer Arlington, TX trusts. This document is effective immediately once it is signed by witnesses or notarized, and it will continue on indefinitely unless there is a specific termination date stated.

        The Medical Power of Attorney allows for the agent to make healthcare decisions for the principal only if the healthcare provider/ physician states in writing that the principal is incompetent and unable to make decisions on their own. The agent is able to make decisions on a wide array of issues except for the principal’s commitment to a mental institution, convulsive treatment, psychosurgery, abortion, or the neglect of comfort care.

        The Medical Power of Attorney may be revoked by the principal by notifying the agent or physician either orally or in writing. In some cases, this does not need to be done. For example, if the agent was the spouse of a principal, a divorce between the two would revoke the Medical Power of Attorney.

        Obtaining a Medical Power of Attorney may not seem necessary to one who is young and healthy, however, it could become necessary of one was to be involved in an accident and become seriously injured. Having an appointed agent allows this trusted person to make decisions regarding important medical issues for you if you become seriously injured, ill, or unable to make the decisions for yourself. It is important that the agent be someone who shares values, and knows your basic medical history. There is also an option to have an alternate agent, however, it is not required.

        Anyone can be an agent except for the principal’s physician or healthcare provider, an employee of the physician/provider (unless they are family), residential care provider, or an employee of a residential care provider (unless they are family).

        In order to obtain a Medical Power of Attorney one can contact: the Texas Department of Aging and Disability Services, local hospital, long-term care facility, physician, attorney, or any other state health organization. There must be two witnesses present at the time of the signing of the document, or the principal may sign it and have it notarized by a public notary. At least one of the witnesses cannot be the agent designated, a spouse or relative by blood, attending physician, entitled to the principal’s estate, or an employee at the place where the principal is a patient/ a person providing direct care to the patient.

        The principal’s physician and their employees must follow the directive of the agent to the consistency of the desires of the principal, law, and Medical Power of Attorney. If the physician does not wish to follow an agent’s decision, the physician must inform the agent as soon as possible, which allows for the agent to select another physician who is willing to follow the directives of the agent.

        In the instance that a physician does not want to remove life-sustaining treatment to a principal, but the agent wishes to remove the treatment, there is a specific procedure that is followed. First, the physician’s decision will be reviewed by ethics or a medical committee in which neither the physician whose decision is being reviewed nor the agent may attend. After a decision is made by the ethics or medical committee, the agent must be provided with an explanation of the decision. If the agent or the physician disagrees with the decision, the physician or provider must transfer the patient to a physician who is willing to comply with the agent. If these procedures are correctly followed, the healthcare provider and physicians are immune to disciplinary action, civil liability, and criminal liability.

        On the other hand, if the agent wishes to continue life-sustaining treatment and the physician does not, similar procedures will be followed except for a few minor differences. During the meeting of the ethics or medical committee, the agent may attend. Once the decision is made, if the agent disagrees, the patient may be transferred to another physician who will continue providing life sustaining treatment. However, after the 10th day has passed of the agent being notified of this decision, and the agent has not transferred the patient to a different physician, the physician who decided that they did not want to continue life-sustaining treatment is not obligated to continue it. If this procedure is correctly followed, the hospital and its physicians cannot receive disciplinary action, civil liability, or criminal liability.

        If the decision is not reviewed by an ethics or medical committee, the physician and hospital are not granted immunity. Agents can also review and receive information about the principal’s mental and physical condition, execute release required to receive this information, and consent to the disclosure of information. An agent will not be held liable criminally to any of the decisions made under Medical Power of Attorney as long as the agent is acting under good faith.

        It is important to obtain a Medical Power of Attorney before you have entered the hospital and are in need of one. This will prevent added stress when it you are already struggling. This document is easy to obtain and allows for you to have the peace-of-mind in knowing that you will be taken care of properly, even if you are unable to make decisions for yourself. You can contact the Brandy Austin Law Firm to schedule your free consultation to discuss your Estate Plan and the necessary documents needed to provide you peace of mind.


Thanks to our friends and contributors from Brandy Austin Law Firm, PLLC for their insight into medical power of attorney and the primary functions.

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