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Is the basic Medical Power of Attorney good enough?

Dear Mr. Premack: Are there flaws in the ʺrawʺ statutory Medical Power of Attorney in Texas? -MGH

The Texas legislature first passed a law allowing appointment of health care agents back in 1989. I wrote an article that was published in the Texas Bar Journal about that new law, highlighting for other attorneys the nature of the law and its limits. The legislature reconsidered the law in 1999 and passed a comprehensive overhaul entitled the Texas Advance Directives Act.

Despite the constant progress in medical science and passage of other laws affecting medical decisions, only minor changes to the Act have been passed in last 14 years. There have been no further comprehensive overhauls. Thus, I must answer your question, “Yes, there are flaws in the ‘raw’ statutory Medical Power of Attorney in Texas.”

What is the “raw” statutory Medical Power of Attorney? The 1999 Act says that any Medical Power of Attorney in Texas must “substantially” use the words specified in the Act. The law requires specific provisions, but does allow variations in, and intelligent improvements to, that “raw” statutory form. What are some defects, and how can they be cured?

  1. The raw statutory form requires a disclosure statement to be provided. The legislature wrote the exact wording for that disclosure. Then the legislature changed a different section of the Act (one of the minor changes since 1999) without adapting the disclosure’s wording to match the modified law. Thus, the disclosure no longer tells its reader the true legal requirements, essentially misleading the public. This flaw has not been corrected in the raw statutory form.

  2. The raw statutory form does not accommodate overriding changes to the law which were imposed by the federal HIPAA regulations. HIPAA legally forbids your medical providers to disclose your private health information (your medical records) without your written permission. The federal HIPAA regulations include a list of times your doctor can disclose your medical records – but the list does not include family members. Those regulations are vague on whether the Agent in your Medical Power of Attorney can view your medical records, or even hold a conversation with your doctor. Experienced attorneys include revisions to the raw statutory form to correct this fault.

  3. The raw statutory form suggests that you include the address and phone number of your Agent inside the form. But it then says that after you sign the form, any changes require that you sign a brand new form. This means that if your Agent – perhaps your son – gets a new cell phone number, you are legally banned from altering your Medical POA to change his phone number. Experienced Elder Law attorneys know how to lift this ban so you can stay up-to-date.

  4. The raw statutory form allows you to impose “limits” on your Agent, and then simply provides a few blank lines. Most people have no idea what to say, so they leave the lines empty. Experienced Elder Law attorneys know that these limits should include vital additions like: a) discussion of whether your Agent will have power to remove you from artificial life support, and b) guidance for your Agent on issues ranging from “do I want antibiotics?” to “would I want radiation therapy for cancer?”. The more guidance you can provide to your Agent, the more certain you are to receive the medical treatments you desire (and to avoid the treatments which you wanted to avoid) if you become too ill to make your own medical decisions.

Avoid the raw statutory form. If your doctor, hospital or inexperienced attorney offers the raw form to you, decline. Only use a Medical Power of Attorney that has been amended and personalized to correct the flaws in the raw form. The Medical Power of Attorney is vital to your health and longevity, and you need an experienced Elder Law attorney to assist in its preparation.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, March 15, 2013


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