Medical power of attorney in Texas: how it works, how to sign
The short answer
A Texas medical power of attorney names an agent to make health care decisions when a physician certifies you can't. You sign before two qualified witnesses, one of them disinterested, or before a notary. If you name nobody, Texas law turns to your spouse, adult children, parents, then nearest relative. A close friend is not on that list.
The question most people really want answered is simple. If I can't speak for myself, who talks to the doctor? In Texas, the answer is whoever you name in a medical power of attorney. If you name nobody, the law picks from your family, in a fixed order.
This page covers how the Texas document works, how to sign it, the directive to physicians that often goes with it, and the default list. It is part of our state guides to estate planning. Money matters are covered separately in the Texas financial power of attorney guide.
What does a Texas medical power of attorney do?
A power of attorney names someone to act for you. A medical one is limited to health care. The person you name is your agent, and they act as a fiduciary: legally required to act in your interest and follow what you wrote.
The Texas statutory form says it takes effect when a physician certifies in writing that you can't make health care decisions (Health and Safety Code 166.164). Until then, you make your own decisions. Our national page on what a medical power of attorney is explains the role in more depth.
How do I sign one in Texas?
You have two choices. You can sign in front of two witnesses who also sign. Or you can sign and have your signature acknowledged before a notary instead (Health and Safety Code 166.154). You don't need both.
If you use witnesses, each must be a competent adult. At least one of them must not be any of these people (Health and Safety Code 166.003):
- The agent you are naming.
- A relative by blood or marriage.
- Someone who would inherit part of your estate, by will or by law.
- Your attending physician, or someone who works for your physician.
- Certain staff of a health care facility caring for you: direct-care staff, or its officers, directors, partners or business office employees.
- A creditor of your estate.
The wording of the form matters too. Texas law says the document must be "in substantially the following form," and then sets out the statutory form (Health and Safety Code 166.164). Digital or electronic signatures are allowed (Health and Safety Code 166.011).
| Signing checklist | Done? |
|---|---|
| Document follows the Texas statutory form in substance | |
| Agent named, plus a backup | |
| Signed before two witnesses (one disinterested) or a notary | |
| Copies to your agent, your backup and your doctor |
Who can't be my agent?
Most adults you trust can serve. Texas bars one group. Your health care provider or residential care provider, or their employee, can't act as your agent while serving in that role, unless the employee is a relative (Health and Safety Code 166.153).
One more rule to know. If you name your spouse and later divorce, or the marriage is annulled, your spouse's authority ends, unless the document says otherwise (Health and Safety Code 166.155). If that happens, sign a new one.
What is the Texas directive to physicians?
The medical power of attorney names a person. A living will records your wishes. In Texas, the statutory living will is titled the Directive to Physicians and Family or Surrogates (Health and Safety Code 166.033).
The signing rules match: two qualified witnesses, at least one disinterested, or a notary acknowledgment instead (Health and Safety Code 166.032). The form is optional, and the directive may also name a person to make treatment decisions.
You, or someone on your behalf if you can't communicate, must tell your attending physician the directive exists. So hand your doctor a copy. Our page on a health care power of attorney vs a living will explains why most people want both, and the advance directive guide lists wishes worth writing down.
Who decides if I haven't named anyone?
Texas has a default list for ordinary treatment decisions. It applies when an adult patient in a hospital, nursing home or home health agency can't communicate and has no guardian or medical power of attorney agent reasonably available (Health and Safety Code 313.004). The order is:
- Your spouse.
- Your adult children.
- Your parents.
- Your nearest living relative.
The person must have decision-making capacity, be reasonably available after a diligent search, and be willing to serve. Decisions are based on what you would want, if known.
A close friend is not on the list. Neither is a neighbor, however devoted. If nobody on the list is available, another physician not involved in your treatment may agree to the treatment instead.
A family member deciding this way also has limits. They can't consent to voluntary inpatient mental health services or electroconvulsive treatment, and they can't appoint someone else. Disputes go only to a court with probate jurisdiction. Our page on medical decisions without a power of attorney compares this to other states, and the 50-state default decision-maker guide has the full picture.
What about life-sustaining treatment?
That list does not cover withholding or withdrawing life-sustaining treatment. A separate statute handles those decisions (Health and Safety Code 166.039).
It uses the same family order: spouse, reasonably available adult children, parents, then nearest living relative, acting together with your attending physician. If nobody on that list is available, a second physician or a representative of the ethics committee must agree with the decision.
Naming an agent in a medical power of attorney avoids both lists. The person you trust is the one at the bedside.
How do I choose my agent?
Think about who will actually pick up the phone at two in the morning, and who will follow your wishes even if they would choose differently. Our page on how to choose a medical power of attorney has questions to ask, and naming a backup in every role explains why a second name helps.
Here is a typical case, a composite. Ruth is 74, widowed, and lives in Houston. Her daughter lives in Denver. Ruth names her friend of thirty years, who lives ten minutes away, as her agent, and her daughter as backup. Under the default list her friend would have had no say. With the document, she is the one the surgeon calls.
Some people prefer a professional standing by, first or behind a friend. A Kinly membership includes a medical power of attorney written for your state, and Trella Trust Company, a Washington State chartered trust company, can be named in the role, first or as backup.
Common questions
Does a Texas medical power of attorney need to be notarized?
Not necessarily. You can sign before two qualified witnesses, at least one of them disinterested, or have your signature acknowledged before a notary. Either way is valid.
When does a Texas medical power of attorney take effect?
The statutory form says it takes effect when a physician certifies in writing that you can't make health care decisions. Until then, you make your own.
Who makes medical decisions in Texas if there is no medical power of attorney?
For ordinary treatment, Texas looks to your spouse, then adult children, then parents, then your nearest living relative. If nobody on that list is available, another physician not involved in your care may agree to the treatment. Life-sustaining treatment decisions follow a separate statute with the same family order.
Can a close friend make medical decisions for me in Texas?
Not under the default list, which stops at your nearest living relative. A friend can decide for you only if you name them as your agent in a medical power of attorney.
Is a directive to physicians the same as a medical power of attorney?
No. The directive records your wishes about treatment, and the medical power of attorney names the person who decides. The signing rules are the same, and many people sign both.
Sources
This page is general information, not legal or financial advice. Laws vary by state.