Cecily Zamora
In Texas, a common-law spouse can make medical decisions for their partner if they have been designated as an agent in a Medical Power of Attorney. This legal document allows an individual, in this case, a common-law spouse, to make healthcare decisions on behalf of their spouse when they are unable to do so themselves. Without a Medical Power of Attorney, Texas law dictates a prioritized list of individuals, including adult children, parents, or the nearest living relative, who can act as an adult surrogate and make medical decisions. In the case of a common-law marriage, where no legal marriage certificate exists, the spouse may need to provide proof of their marital status to be recognized as the legal decision-maker.
| Characteristics | Values |
|---|---|
| Common law spouse's authority to make medical decisions | If a common law spouse has been named as an agent in a Medical Power of Attorney, they have the authority to make medical decisions for their spouse if they lose capacity. |
| Medical Power of Attorney | A Medical Power of Attorney is a type of "advance directive" that allows an individual to name someone they trust (an agent) to make healthcare decisions on their behalf if they are unable to do so. |
| Texas Consent to Medical Treatment Act (CMTA) | Under the CMTA, the first authorized decision-maker is the spouse. If no one challenges the spouse's status, a doctor may accept their assertion. If challenged, proof of marital status may be required. |
| Priority of decision-makers without Medical Power of Attorney | In the absence of a Medical Power of Attorney, Texas law dictates a prioritized list of individuals who can make medical decisions. This includes an adult child, a majority of adult children, the nearest living relative, or a member of the clergy. |
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What You'll Learn
Common-law marriage in Texas
In Texas, common-law marriage, also known as "marriage without formalities" or informal marriage, is a valid and legal way for a couple to marry. To be considered a common-law marriage, the couple must live together, agree that they are married, and present themselves to others as a married couple. It is a misconception that a couple will be considered common-law married simply by living together for a certain period. While it is not a requirement, couples can register their common-law marriage by filing a declaration with the county clerk.
If a couple chooses not to declare their common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage. If no declaration was filed and there is a dispute as to whether a common-law marriage existed, it may be necessary to go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings. If no action is taken during those two years, the law presumes there was no marriage.
In the context of medical decision-making, a common-law spouse without a Medical Power of Attorney does not inherently have the right to make medical decisions for their incapacitated spouse. The first modern legal solution is the Medical Power of Attorney, which allows someone to grant another person (the "agent") the right to make medical decisions on their behalf if they become incapacitated. The second modern legal solution is the Texas Consent to Medical Treatment Act (CMTA). Under the CMTA, the first authorized decision-maker is the spouse. However, if the doctor certifies that the patient is capable of understanding the risks and benefits of a proposed treatment, the CMTA is not invoked, and the patient retains the right to make their own medical decisions.
In summary, while a common-law spouse in Texas may be able to make medical decisions for their spouse in certain circumstances, it is not a given right and depends on various factors, including the presence of a Medical Power of Attorney, the patient's mental capacity, and the ability to prove the existence of a common-law marriage.
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Medical Power of Attorney
In Texas, a common-law spouse without a Medical Power of Attorney does not automatically have the right to make medical decisions for their incapacitated spouse. The traditional approach in such cases was to have a judge appoint a guardian to make medical decisions. However, Texas has added two modern legal solutions: the Medical Power of Attorney and the Texas Consent to Medical Treatment Act (CMTA).
A Medical Power of Attorney is a type of "advance directive" that allows an individual, also known as the "principal", to designate someone they trust, known as an "agent", to make healthcare decisions on their behalf if they become seriously injured, ill, or otherwise unable to make decisions about their health. The agent's decisions cannot override the principal's objections, even if the principal is incompetent.
The Medical Power of Attorney goes into effect immediately upon signing but can only be utilised when the principal is unable to make decisions for themselves. Once the principal regains competency, the agent's authority is revoked.
It is important to note that marriage is not a requirement for an agent, and one may choose to name someone other than their spouse as their agent. Additionally, divorce does not automatically remove the spouse as an agent unless specifically stated in the Medical Power of Attorney.
Texas Consent to Medical Treatment Act (CMTA)
The CMTA states that certain people have automatic legal authority to make medical decisions when a patient is incapacitated and in a hospital or other limited care setting. Under the CMTA, the first authorised decision-maker is the spouse. However, if the patient's mental state is in question, a physician will examine and determine their capacity to understand the risks and benefits of a proposed treatment. If the doctor certifies that the patient is incapable, the CMTA is invoked.
In summary, while a common-law spouse may have the right to make medical decisions for their incapacitated spouse in Texas, it is dependent on specific circumstances and the presence of legal documents such as a Medical Power of Attorney or the invocation of the CMTA.
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Texas Consent to Medical Treatment Act (CMTA)
In Texas, the Consent to Medical Treatment Act (CMTA) gives certain people the automatic legal authority to make medical decisions when a patient is incapacitated. The first authorized decision-maker is the spouse. However, common-law marriages are considered "informal marriages" in Texas, and the existence of the marriage must be proven in several ways. If no one challenges the status of the common-law spouse, a doctor may simply accept the assertion and treat them as the spouse. However, if someone does challenge the status, the doctor may ask for proof of the marital status.
The CMTA is invoked when a patient is in a hospital or other limited care setting and is deemed incapacitated by a physician. The physician must examine the patient's mental state and determine whether they are legally capable of making their own medical decisions. If the doctor certifies in the patient's medical record that they are incapable of understanding the risks and benefits of a proposed treatment, the CMTA is invoked.
The CMTA outlines the prerequisites for consent, including that the patient is comatose, incapacitated, or otherwise mentally or physically incapable of communication. The attending physician must describe the patient's condition and the proposed medical treatment in the patient's medical record. The physician must also make a reasonably diligent effort to contact the persons eligible to serve as surrogate decision-makers, and these efforts must be recorded in detail in the patient's medical record.
It's important to note that a Medical Power of Attorney takes precedence over the CMTA. A Medical Power of Attorney is a type of advance directive that allows an individual to name a trusted agent to make healthcare decisions on their behalf when they are unable to do so. This can be a spouse or someone else, and it goes into effect immediately upon signing.
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Proving common-law marriage
In Texas, a common-law marriage, also known as an "informal marriage", is a valid and legal way for a couple to marry. To prove a common-law marriage, the couple must show evidence that they:
- Lived together
- Agreed that they were married
- Held themselves out to others as a married couple
Documents such as lease agreements, tax returns, and insurance policies may be requested to prove a common-law marriage. If there is a dispute about the existence of a common-law marriage, it may be necessary to go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings. If no action is taken within two years of separation, the law presumes there was no marriage.
In the context of medical decision-making, a common-law spouse without a Medical Power of Attorney does not automatically have the right to make medical decisions for their incapacitated spouse. The Texas Consent to Medical Treatment Act (CMTA) states that when a person is incapacitated, certain people have automatic legal authority to make medical decisions on their behalf, with the spouse being the first authorised decision-maker. If the common-law spouse is challenged, they may be asked to provide proof of their marital status.
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Priority of decision-makers
In Texas, a common-law spouse without a Medical Power of Attorney does not have the automatic right to make medical decisions for their incapacitated spouse. The traditional legal approach in such cases is to have a judge make a formal ruling of incapacity and appoint a guardian to make medical decisions. However, Texas has added two more modern legal solutions: the Medical Power of Attorney and the Texas Consent to Medical Treatment Act (CMTA).
Under the CMTA, the first authorised decision-maker is the spouse. If you are in a common-law marriage and your spouse is incapacitated, your claim to that status may be questioned. If no one challenges your status, the doctor may simply accept your assertion and treat you as the spouse. However, if someone does challenge your status, the doctor may ask for proof of your marital status. Common-law marriages in Texas are officially called "informal marriages," and the existence of the marriage can be proved in several ways. If you can prove your marriage and the court finds your spouse legally incapacitated, you, as the spouse, have the highest legal priority to become their guardian, and your authority to make medical decisions cannot be further challenged.
If you have a medical power of attorney in place, it will dictate who has the right to make medical decisions for you. This is a type of advance directive that provides a simple way to name someone you trust (an agent) to speak to your healthcare providers and make healthcare decisions for you when you cannot. The agent's decisions will not override the principal's objection, even if the principal is incompetent.
If you do not have a medical power of attorney, Texas law dictates that an adult or group of adults may make those decisions for you, in the following order of priority:
- An adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker.
- A majority of the patient's reasonably available adult children.
- An individual clearly identified by the patient before they became incapacitated, the patient's nearest living relative, or a member of the clergy.
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Frequently asked questions
A common-law spouse can make medical decisions in Texas if they are named as an agent in a Medical Power of Attorney. This gives them clear legal authority to make medical decisions on behalf of their spouse if they are incapacitated.
A Medical Power of Attorney is a type of "advance directive" that allows someone to name an agent to make healthcare decisions for them if they are unable to do so themselves.
Anyone can be an agent as long as the principal, the person who the medical decisions will be made for, trusts them to make those decisions.
Yes, you can name your common-law spouse as your agent. However, if you get divorced, they will no longer be your agent unless you specifically state that you want them to remain your agent after a divorce.
If you do not have a Medical Power of Attorney, Texas law dictates that an adult or group of adults may make medical decisions for you. The priority list includes your spouse, adult children, parents, or an individual you identified to act for you before you became incapacitated.
