Can a common law spouse make medical decisions in Texas?

Dear Mr. Premack: Does a common law spouse (husband) without Medical Power of Attorney have the right to make medical decisions for an incoherent common law spouse (wife) in the state of Texas? – DO

To understand the law of medical consent, we must begin with legal principals established a century ago. In 1914, Judge Benjamin Cardozo (who eventually sat on the U.S. Supreme Court) wrote that, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” We each have the right to direct our own medical destiny.

The traditional legal approach when a person became of unsound mind was to have a Judge make a formal ruling of incapacity and to appoint a Guardian to make the medical decisions. Texas still has that system, but has also added two more layers.

The first modern legal solution is the Medical Power of Attorney to which you referred. If your common law wife had created one which named you as Agent, you would have clear legal authority to make her medical decisions if she lost that capacity. Your status as spouse would not matter; rather, your status as Agent would give you legal authority.

The second modern legal solution is the Texas Consent to Medical Treatment Act (CMTA). It states that when a person is in the hospital or other limited care settings, certain people have automatic legal authority to make medical decisions when the patient is incapacitated.

You are saying that your common law spouse is “incoherent” but under the law it would be her physician who would examine her mental state to determine whether she is legally capable of making her own medical decisions. If the doctor certifies in her medical record that she is incapable of understanding the risks and benefits of a proposed treatment, the CMTA is invoked.

Under the CMTA, the first authorized decision maker is the “spouse.” You claim to be her common law husband. Your claim to that status may put the doctor in a bind: If no one challenges your status, the doctor may simply accept your assertion and treat you as the spouse. But if someone does challenge your status – say one of her adult children who wants to make the medical decisions – then the doctor may ask for proof of your marital status.

Under Texas law, common law marriage is officially called “informal marriage.” The existence of the marriage can be proved in several ways. First, the couple may have signed a “declaration of informal marriage” under rules laid out in the Texas Family Code. Second, the couple may have resided together while agreeing they are married and telling others they are married. But there is a catch: if the parties ever separate, either party has only two years to go to court to prove the marriage existed. If no action is taken during those two years, the law presumes there was no marriage.

Ultimately, you and she are in a fragile position. Your legal authority could be in question, and she needs medical care. As I said, if no one objects then the doctor might accept your assertion that you are her spouse. If someone does object, or if the doctor asks for proof of your marriage, then either: 1) you’ll have to prove the marriage by showing the declaration of informal marriage, or if that does not exist, then 2) you’ll have to file to become her court appointed Guardian. In court you will have to prove your marriage exists to be recognized as her spouse (otherwise someone else may have priority to be appointed). If you prove your marriage and if the court finds she is legally incapacitated, then as spouse you have highest legal priority to become Guardian. With that status, your authority to make her medical decisions cannot be further challenged.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, June 4, 2010

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Paul Premack served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack has since 1989 written the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.


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