Can Relatives Override a Medical Power of Attorney to Put an Elder in a Nursing Home?
Full Question:
Answer:
It is possible that an appointment of an agent under a medical power of attorney may be revoked by the court if a petition for guardianship has been filed or if it is alleged to have been signed under duress or while not competent. Please see the following TX statutes to determine applicability:
§ 166.152 HEALTH & SAFETY Scope and Duration of Authority
(a) Subject to this subchapter or any express limitation on the authority of the agent contained in the medical power of attorney, the agent may make any health care decision on the principal's behalf that the principal could make if the principal were competent.
(b) An agent may exercise authority only if the principal's attending physician certifies in writing and files the certification in the principal's medical record that, based on the attending physician's reasonable medical judgment, the principal is incompetent.
(c) Notwithstanding any other provisions of this subchapter, treatment may not be given to or withheld from the principal if the principal objects regardless of whether, at the time of the objection:
(1) a medical power of attorney is in effect; or
(2) the principal is competent.
(d) The principal's attending physician shall make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing an agent's advance directive.
(e) After consultation with the attending physician and other health care providers, the agent shall make a health care decision:
(1) according to the agent's knowledge of the principal's wishes, including the principal's religious and moral beliefs; or
(2) if the agent does not know the principal's wishes, according to the agent's assessment of the principal's best interests.
(f) Notwithstanding any other provision of this subchapter, an agent may not consent to:
(1) voluntary inpatient mental health services;
(2) convulsive treatment;
(3) psychosurgery;
(4) abortion; or
(5) neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal.
(g) The power of attorney is effective indefinitely on execution as provided by this subchapter and delivery of the document to the agent, unless it is revoked as provided by this subchapter or the principal becomes competent. If the medical power of attorney includes an expiration date and on that date the principal is incompetent, the power of attorney continues to be effective until the principal becomes competent unless it is revoked as provided by this subchapter.
§ 166.156 HEALTH & SAFETY Appointment of Guardian
(a) On motion filed in connection with a petition for appointment of a guardian or, if a guardian has been appointed, on petition of the guardian, a probate court shall determine whether to suspend or revoke the authority of the agent.
(b) The court shall consider the preferences of the principal as expressed in the medical power of attorney.
(c) During the pendency of the court's determination under Subsection (a), the guardian has the sole authority to make any health care decisions unless the court orders otherwise. If a guardian has not been appointed, the agent has the authority to make any health care decisions unless the court orders otherwise.
(d) A person, including any attending physician or health or residential care provider, who does not have actual knowledge of the appointment of a guardian or an order of the court granting authority to someone other than the agent to make health care decisions is not subject to criminal or civil liability and has not engaged in unprofessional conduct for implementing an agent's health care decision.
§ 166.165 HEALTH & SAFETY Civil Action
(a) A person who is a near relative of the principal or a responsible adult who is directly interested in the principal, including a guardian, social worker, physician, or clergyman, may bring an action in district court to request that the medical power of attorney be revoked because the principal, at the time the medical power of attorney was signed:
(1) was not competent; or
(2) was under duress, fraud, or undue influence.
(b) The action may be brought in the county of the principal's residence or the residence of the person bringing the action.
(c) During the pendency of the action, the authority of the agent to make health care decisions continues in effect unless the district court orders otherwise.
