In the case of a disagreement, whichcontrols: anadvanced directive or medical power of attorney?

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In the case of a disagreement, whichcontrols: anadvanced directive or medical power of attorney?

Say a person has an advanced directive that states they wish for life-sustaining treatments to be withheld in the case of a terminal illness; they are no longer competent to make decisions. They have a medical power of attorney who decides that they would like to go against the advanced directive and give life-sustaining treatments. Does the physician follow the advanced directive or the wishes of the medical power of attorney?

Asked on September 22, 2011 under Estate Planning, Texas

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The answer to this question may indeed turn on the law in the state of Texas and the court's interpretation of the documents involved.  Technically a person appointed as your Medical Power of Attorney has the right to make medical decisions for you in the event that you are not able to do so.  They shouldcarry out your wishes as expressed in your advance directive (DNR - do not resuscitate order, etc.) but if they have to follow them is another story.  I think that you may have to seek an answer in the law in Texas.  I could see the argument being that the medical POA has breached their fiduciary duty to the person for whom the POA was enacted by going against the medical directive.  But unless and until some one challenges it legally the medical POA has the right to make those decisions on the spot.  Good luck.


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