Will Planning

Medical Directives in Texas

A Medical Directive in Texas is a document that helps you communicate your end-of-life wishes while you are still competent and able to make such decisions.  During my practice, many individuals have stated that while they were comfortable making medical decisions for their loved ones under the loved one’s medical power of attorney, they were very thankful that when the time came to make decisions about whether or not to allow their loved one to live the rest of their life with artificial measures, such decision had already been made by their loved one via their Texas Medical Directive document.

When completing a Medical Directive in Texas, you are given certain scenarios wherein you are to decide if you want life sustaining treatment withheld and to be left to die peacefully or if you want life sustaining treatment administered.  The Texas legislature has provided certain definitions of which you need to be aware in order for you to make informed decisions about your end-of-life wishes.  Generally, it is a good idea to speak with an estate planning attorney about such language and definitions before signing such documentation as you want to make sure that your decisions are ones that are based upon your full knowledge and understanding of the medical terms used in such documents.

A Medical Directive in Texas is not only signed by you, but is also required to be notarized and signed before two witnesses that are not in anyway employed or connected to your treating physician or hospital facility.

Having a Medical Directive is not only wise in that you are being able to make sure that your end-of-life wishes are being carried out when you are unable to communicate such wishes yourself, it gives your loved ones peace of mind that they were not the ones that had to make such a gut-wrenching decision on your behalf.

What is a Durable Power of Attorney in Texas?

This question is one that is frequently asked in estate planning.  A durable power of attorney in Texas is a signed paper that allows you to give your right to make business and final decisions, either temporarily or permanently, for yourself, to another person if you are unable to make such decisions at that time either due to illness, disability or some sort of incapacity.  Such document will include, among other things, the name of the individual whom you are appointing as your agent, an alternate for such position, as well as a listing of what powers you are wanting to give your agent.  The durable power of attorney document requires your signature before a notary or someone else who is lawfully authorized to administer oaths.

One of the most important decisions when executing a durable power of attorney is determining whether or not the power of attorney is going to be effective immediately when executed or if the power of attorney is going to become effective on your disability or incapacity. In most instances in which someone picks the latter, a doctor of physician would have to certify you as disabled or incapacitated before your power of attorney could be used on your behalf.

Another important decision when executing your durable power of attorney is determining how broad or narrow the powers that are given to your agent should be.  Generally, giving broad powers is preferable as you never know what issues the power of attorney may have to deal with once they are working as your agent. However, should you give broad powers to your agent, you need to make sure that you have designated someone that you genuinely trust will make decisions in your best interest.  In my practice, I have encountered several individuals who mistakenly believe that because they have their mother or father’s durable power of attorney, thereby giving them access to their parents’ bank accounts, they can use such funds in the accounts for their own benefit.  Such beliefs are inaccurate and can subject the agent to potential criminal charges for such behavior in certain circumstances.

Once you have chosen your power of attorney and executed your Texas durable power of attorney document, it is a good idea to review your documents from time-to-time to make sure that you still believe that the person or persons you have chosen for such role(s) is still the best person for the job.  Durable powers of attorney should always be a part of an effective and well thought out estate plan.

Why should I have a Medical Power of Attorney in Texas?

This question is one that is frequently asked in estate planning.  A medical power of attorney in Texas is a signed paper that allows you to assign your right to make medical decisions for yourself to another person if you are unable to make such decisions at that time.  There are many such circumstances wherein you may not be able to make such important medical decisions, such as a critical illness or injury that leaves you unable to communicate or make relevant medical decisions for yourself.  Without such documentation, a hospital or physician may not know which loved one or relative you would have wanted to make your important medical decisions when you could not do so yourself. That is why having a medical power of attorney is so important in your estate planning process.

Needless to say, the person to whom you give your medical power of attorney should be someone you can fully trust and will make the best medical decisions in your interest.  Further, after executing such medical power of attorney it is critical that you speak with the person and or persons you have designated as your power of attorney so that they will know your wishes concerning your medical care should that individual ever have to act under such document.  Unlike a statutory durable power of attorney, a medical power of attorney only goes into effect once a physician has determined that you are unable to make medical decisions for yourself.  Further, once an individual has suffered a major illness or injury and is unable to make medical decisions for herself, that individual no longer has capacity to execute a power of attorney;   therefore, executing your medical power of attorney in a timely manner is critical.

For those that do not want to incur the minimal cost of obtaining their medical power of attorney paperwork, it should be made clear that if no medical power of attorney exists and members of a family, and/or loved ones, cannot agree on the care to provide to a injured or sick loved one, an expensive guardianship will be the only method for appointing someone as the person responsible to make such important decisions.  Obtaining a guardianship from the Court, is a time-consuming and expensive endeavor that can be easily avoided by making sure that your estate planning consists of a valid Texas medical power of attorney.