Klenk Law

Medical Power of Attorney and the Primary Functions

Posted on Sat Jun 9, 2018, on Power of Attorney

Medical Power of Attorney and the Primary Functions.

          A Medical Power of Attorney is a document.  We call the signing person the principal.  A principal must be a competent adult. The document directs a person that the principal trusts to act as a medical agent to 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 signed by witnesses or notarized.  It will continue on indefinitely unless there is a specific termination date stated.

Medical Powers of Attorney Grant Powers.

        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 can 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.

Medical Powers of Attorney Revocation.

        The Medical Power of Attorney may be revoked by the principal. Either in writing or orally, simply notify the agent or physician. In some cases, this is unnecessary. For example, if the agent was the spouse of a principal, a divorce between the two revokes the Medical Power of Attorney.

Who Needs a Medical Power of Attorney?

        Obtaining a Medical Power of Attorney may not seem necessary to one who is young and healthy; however, accidents happen every day. Having an appointed agent allows this trusted person to make decisions. Decisions regarding critical 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.

Who Can Serve?

        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).

        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 document’s signing. Alternatively, 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.

What Must the Doctor Do?

        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 ethics or a medical committee reviews the physician’s decision. Here neither the physician whose decision is being reviewed nor the agent may attend. After the committee has decided the agent must be provided with an explanation. If the agent or the physician disagrees, the physician or provider must transfer the patient. Generally, to a physician willing to comply with the agent. Follow these procedures correctly and the healthcare provider and physicians are immune to disciplinary action. Further, there is no civil or criminal liability.

What if the Agent and Doctor Disagree?

        On the other hand, if the agent wishes to continue life-sustaining treatment and the physician does not, similar procedures exist.  There are a few minor differences. The Agent may attend the meeting of the ethics or medical committee. If the agent disagrees with the decision, he can transfer the patient to another physician. This new doctor will continue providing life-sustaining treatment. However, the agent has only ten days to wait.  If the agent has not made a transfer after ten days, the physician who decided that they did not want to continue life-sustaining treatment is not obligated to continue it. Under this circumstance, 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. An Agent also executes the release required to receive this information. Further, the Agent can 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.

Can’t I Sign a Medical Power of Attorney At the Hospital?

        It is important to obtain a Medical Power of Attorney before you have entered the hospital and need one. This will prevent added stress when you are already struggling. This document is easy to obtain.  Further, it allows you to have the peace-of-mind in knowing that your wishes are honored.  Even if you are unable to make decisions for yourself. You can contact the Brandy Austin Law Firm to schedule your free consultation.  Let’s 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 the medical power of attorney and the primary functions.

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