The Common Law

Texas law recognizes medical power of attorney, which is a kind of Advance Directive used to help a person express their wishes about medical care. The medical power of attorney allows a person to name someone to make medical decisions in the event that the person is unable to make these decisions for themselves. A medical power of attorney is especially important if a medical or health problem arises that was not anticipated or addressed in a living will.

The person selected to be the medical power of attorney is called the agent. The agent is given the authority to make any and all health care decisions on behalf of the incompetent person that the agent believes the person would have made if competent. The agent must know what the wishes are of the person entering into the medical power of attorney and must be ready to act on these wishes. A physician is required to follow the agent's instructions.

That's a lot of responsibility, so someone who considers acting as an agent should be prepared to make tough decisions. For example, the person creating the medical power of attorney may not want to be placed on life support. Knowing this information, the agent would be charged with making the final decision to withhold life support. In this example, anyone who is not comfortable making the decision to withhold life-sustaining treatment should not be an agent. A person who does act as an agent will not be subject to criminal or civil liability as long as their decisions are made in good faith.

As with other Advance Directives, a health care provider or attorney should be able to provide additional information about creating a medical power of attorney. The exact language that must be included in the medical power of attorney can be found in Section 166.163 of the Texas Health & Safety Code (www.capitol.state.tx.us/statutes/hs.toc.htm). Once executed, a medical power of attorney can be easily revoked by an oral or written notification to the agent.