Who can make medical decisions for an incapacitated adult if there is no health care power of attorney? Section 313.004 of the Texas Health and Safety Code provides a prioritized list of persons who may consent to treatment for an incapacitated adult patient. The list includes (in order of priority), the patient’s spouse, adult children, and parents.
There are however, limits to the treatments for which a Section 313 surrogate decision maker can give consent. Specifically, a surrogate cannot consent to voluntary inpatient mental health services or electro-convulsive treatments. A statutory surrogate is also prohibited from appointing another surrogate to act for the patient.
Because of these limitations in Texas Health and Safety Code Section 313.004 it is important to execute a Health Care Power of Attorney while there is still legal capacity to do so. In most cases, clients have some preference as to who should (and who should not) be making medical decisions for them when they cannot make medical decisions for themselves. The best way to make sure your wishes are recognized is to execute a health care power of attorney. Having a specific, appointed agent will also limit confusion, disputes and delays that may otherwise arise if the question of “who makes the decision” ever comes up.