What the rule says
Texas separates the legal frameworks for financial decisions and health care decisions during incapacity. The Medical Power of Attorney, governed by the Texas Advance Directives Act at Texas Health & Safety Code § 166.151 et seq., addresses health care decisions specifically. The financial durable POA under the Texas Estates Code does not cover health care.
A Texas Medical Power of Attorney designates an agent (called a "health care agent" or "attorney-in-fact for health care") who has authority to make health care decisions on the principal's behalf when the principal lacks capacity. The agent's authority can include:
- Consenting to or refusing medical treatment - Choosing or changing health care providers and facilities - Accessing medical records - Making decisions about life-sustaining treatment - Making decisions about pain management - Other health care decisions the principal could have made if capable
The Medical POA becomes effective when a physician determines that the principal cannot make health care decisions. The agent's authority continues for as long as the principal lacks capacity.
The statutory form
Texas Health & Safety Code § 166.164 provides a statutory form for the Medical Power of Attorney. The form includes:
- Designation of a primary health care agent - Designation of one or more alternate agents - Optional limitations or instructions - Required statements about the document's nature and effect - Disclosure statements that the principal must read before signing - Witnessing or notarization requirements
The statutory form is designed to be completed without an attorney. Hospital admissions departments, primary care physicians' offices, and Texas estate planning attorneys typically have copies available.
Key requirements for execution:
- Signed by the principal (or by another person at the principal's direction in the principal's presence if the principal cannot sign) - Witnessed by two qualified witnesses, one of whom must not be the principal's health care provider, an employee of the provider, the agent named in the document, or a beneficiary of the principal's estate. Alternatively, the document can be acknowledged before a notary public. - Disclosure statement. The principal must acknowledge having read or been read the disclosure statement contained in the form.
What happens without a medical POA
If a Texas patient lacks capacity and has no Medical Power of Attorney, Texas law applies a surrogate-decision-maker hierarchy under Texas Health & Safety Code § 313:
1. The patient's spouse 2. An adult child of the patient who has the consent of all other qualified adult children 3. A majority of the patient's reasonably available adult children 4. The patient's parents 5. The individual clearly identified to act for the patient by the patient before the patient became incapacitated 6. The patient's nearest living relative 7. A member of the clergy
The surrogate-decision-maker hierarchy provides a default but has limitations:
- Disputes among potential surrogates. When family members disagree, no clear rule resolves the conflict. The hospital may need to seek court guidance. - The surrogate's authority is more limited than an agent's. Particularly for end-of-life decisions, surrogates lack clear evidence of the patient's preferences. Some hospitals decline to honor surrogate decisions on withdrawal of life-sustaining treatment without clearer guidance. - Out-of-state family or non-traditional family. Surrogates from outside Texas, or chosen family not recognized in the statutory hierarchy, may face barriers to making decisions. - Time delays during medical crises. Identifying the appropriate surrogate, documenting their authority, and obtaining hospital acceptance of their decisions takes time. In emergencies, every hour matters.
An executed Medical POA avoids these problems by giving the agent clear, documented authority and aligning decision-making with the patient's chosen agent.
How this works with other Texas advance directives
The Texas Advance Directives Act covers three related but distinct documents:
- Medical Power of Attorney (§ 166.151 et seq.): Designates an agent for health care decisions during incapacity. Does not address specific end-of-life preferences. - Directive to Physicians (Living Will) (§ 166.031 et seq.): States the principal's preferences for life-sustaining treatment in cases of terminal or irreversible conditions. - Out-of-Hospital Do-Not-Resuscitate Order (§ 166.081 et seq.): Directs that CPR not be administered in out-of-hospital settings.
These documents work together. Many Texans execute all three at the same time as a coordinated set of advance directives.
What you can do about it
For Texas residents:
- Execute a Medical Power of Attorney using the statutory form under Texas Health & Safety Code § 166.164. - Designate a primary agent and at least one alternate. A single agent who is unavailable at the moment of need leaves the document without an effective decision-maker. - Discuss preferences with the agent. A written document is more effective when the agent has had explicit conversations about the principal's values and wishes. - Provide copies to the agent, primary physician, and key family members. A document locked in a file cabinet is not useful at a hospital. - Coordinate with a Directive to Physicians. A medical POA designates who decides; a Directive to Physicians states what the principal wants in specific circumstances. Both together provide more complete guidance. - Update periodically. Marriage, divorce, the death of a named agent, and major health changes all warrant review.
Who this affects most
The Medical Power of Attorney is most consequential for:
- Texas adults who have not executed any medical advance directive and rely on default surrogate authority - Patients facing major medical decisions where family members are divided about treatment - Out-of-state family or chosen family who may not be recognized in the statutory hierarchy - LGBTQ+ individuals or others whose chosen family may not match the surrogate hierarchy - Anyone with strong preferences about end-of-life care that may differ from default treatment patterns
The Medical POA is among the most personal and consequential estate planning documents. It directly affects medical decisions during health care crises, often making the difference between care that aligns with the patient's values and care that does not.