Who Makes Your Health Care Decisions if You Can’t?

In the event of an unfortunate health emergency, you may become incapacitated. If you are incapacitated, you will not be able to make the decisions needed to consent to and direct your own medical care. The law provides for a plan in this unfortunate event. But the law’s provisions may not be sufficient to ensure your plans are executed according to your wishes. Advance directives can help.

If you do not have any advance directives in place, someone may still be available to make health care decisions for you. If you are incapacitated in Texas, the following can still make decisions and consent to treatment for you: your spouse, your adult child or children (either a majority or one designated to make such choices by your other children), your parents, a person you identified to make decisions for you before you lost capacity, or a nearest living family member or clergy member. The priority goes in order from first to last. If relevant parties disagree, the judge of a Texas probate court will make that decision.

Types of Advance Directives

If this priority-ranked system sounds stressful and you’re worried your wishes will not be accurately carried out, consider putting advance directives in place. Some advance directives allow you to outline your care without the need to name a third party to make decisions for you. These include directives to physicians and family or surrogates, or living wills, out-of-hospital do-not-resuscitates (DNRs), and declarations for mental health treatment. In Texas, living wills lay out your requirements for life-sustaining measures in the event you have a condition certified by two physicians as terminal. DNRs give emergency medical professionals, who cannot follow living wills, instructions not to resuscitate you. And declarations for mental health treatment help you make advance decisions about the type of mental health treatment you would like to receive in a mental health emergency, such as medication and therapy, in the event a court declares you incapacitated.

Two other advance directives under Texas law require you to name a third party, or agent, who will be responsible for making decisions for you. This includes a durable power of attorney and a medical power of attorney. A durable power of attorney does not empower your agent to make medical decisions for you—it only gives power over financial decisions. For health care needs, you’ll need a medical power of attorney. This allows a trusted third party to make decisions for you if you are unable to make them yourself. If you recover enough to regain capacity, however, you will be able to regain the power to make your own decisions.

Contact a Houston Estate Planning Attorney

For help preparing these documents and figuring out which ones you should include in your estate plans, call a Houston estate planning attorney with knowledge of incapacity planning. The Houston-based team at McCulloch Miller, PLLC has the experience needed to help families come up with specially crafted plans for their own unique circumstances. Contact our office at 713-936-9073 to schedule a consultation with an attorney on our team.

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