Some individuals seeking to update their Texas wills and other estate planning documents wonder about their medical powers of attorney. Specifically, are Texas Medical Powers of Attorney valid if they are not notarized? Who needs a medical power of attorney and what does it accomplish? This article provides an overview of medical powers of attorney in Texas. If after reading this article you have questions, please contact a Texas estate planning attorney or our office in The Woodlands, for specific advice.
What Is a Texas Medical Power of Attorney?
Texas law allows you to appoint an individual to make medical decisions on your behalf. Typically, individuals create a medical power of attorney in advance of a major surgery or before becoming incapacitated. In other words, a Texas medical power of attorney allows you to plan ahead and ensures that someone can make decisions if you become incapable of making those decisions yourself.
What Makes a Medical Power of Attorney Valid in Texas?
Under Texas law, a medical power of attorney can be, but doesn’t have to be notarized. To be valid in Texas, your medical power of attorney must be:
- signed by you in the presence of two witnesses (the witnesses must also sign the document); or
- signed by you in the presence of a notary public. See TX Health & Safety Code Sec. 166.154 (2019).
This means that you have the option to use a notary or two witnesses – either way is equally valid. One caveat if you are using witnesses is that the witnesses can’t be interested parties. For example, you shouldn’t use your doctor and your spouse as your only witnesses. Texas law requires that at least one witness is not:
- related to you by blood or marriage
- your doctor
- your doctor’s employee
- a beneficiary of your estate
- an individual with a claim on your estate
- an employee of a health care facility where you reside, or
- your agent under a health care directive or durable power of attorney. See TX Health & Safety Code Sec. 166.003 (2019).
Do I Need a Medical Power of Attorney?
If you like to be prepared for the unknown, having a medical power of attorney is always a good idea. Many individuals and couples create medical powers of attorney as part of a Texas estate planning package. These documents can be drafted with the help of your lawyer. Alternatively, you can access some basic forms through the Texas Health and Human Services website.
This article provides an overview of the role of medical powers of attorney in a Texas estate plan. This article should not be construed as legal advice and does not establish an attorney-client relationship. If you have specific questions, please contact us.