Many people wonder if they need to invest time and money in preparing certain legal documents. Often times, this question arises when they don’t understand what a particular document does for them. Here we are addressing one of those essential documents.
A medical power of attorney is one of several “additional documents” that are regularly drawn up with a will or trust as part of the estate plan. While the will or trust takes effect upon the death of a person, these other additional documents are effective during a person’s lifetime. The medical power of attorney, sometimes referred to as health care representation, is the legal document that gives your elected representative the power to make decisions about medical treatment on your behalf.
The agent under the medical power of attorney only has the right to make medical decisions for the client (i.e. the patient) if the client’s doctor attending to the client certifies in writing that the client is unable to make decisions based on his or her reasonable medical judgment make their own medical decisions. This requirement ensures that your agent cannot make health care decisions while you are still able to understand and communicate your condition.
In general, all competent adults should have a medical power of attorney. The presence of the document reduces the risk of treatment delay, as the appropriate substitute decider must be identified for a patient. Texas law provides that if someone does not have medical authority, medical decisions may be made by (in that order): the patient’s spouse or an adult child who has the waiver and consent of all of the patient’s adult children, or a majority of the patient’s adult children or the patient’s parents.
When an adult child lives near an older parent, it can be time consuming either to get all other adult children out of the way so that the child can make a decision further away, or to reach a consensus among all children for them medical treatment of their parents. Imagine the problem when one of the children is unavailable. What about the patient without adult children whose spouse is also hospitalized in a frequent accident? Then the hospital staff makes the patient’s medical decisions. That is certainly not ideal.
Also, consider whether the standard substitute decision maker is the appropriate person to help make your personal medical decisions. Often times there is one person in the family who knows and understands your personal beliefs better than others. Or maybe there is one person in the family who absolutely does not share your beliefs.
Without a medical certificate, you run the risk of empowering the wrong person to make decisions. The medical power of attorney is responsible for making healthcare decisions based on the client’s wishes, including the client’s religious and moral beliefs. If you can choose that person, you have a better chance of making decisions that you would make for yourself.
The document offers several other advantages. First, a school principal can empower his doctor to make end-of-life decisions for him when he is incapacitated. Of course, you will want to discuss with your agent how you feel about the use of life support and the circumstances in which you find it appropriate or undesirable. A substitute adjuster (not appointed under the Power of Attorney) has no authority to make a decision about withholding or withdrawing life support. Second, a medical certificate can often enable one to avoid the cost and difficulty of securing guardianship over a disabled relative to control medical decisions.
To obtain a medical authorization, Texas residents must use a form that is essentially similar to the one issued by Texas lawmakers. The “essentially similar” requirement ensures that the form is easily identifiable by healthcare professionals in an emergency. The form also contains information that, in the opinion of the legislator, every client should read and understand. It should be signed in front of a notary or two witnesses. And it is obvious that the document cannot be signed if the client’s capacity is questioned. So it has to be done before there is a problem with Alzheimer’s or any other mental illness or injury.
If necessary, seek assistance from an experienced attorney to properly assess the client’s capacity and prepare a medical power of attorney and other estate planning and ancillary documents.
Hammerle Finley lawyers are available for personal consultations, via Zoom, or by telephone to discuss your concerns and estate planning goals. Let us help you with this.
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