Who Makes Medical Decisions Without Power of Attorney in Texas?

When a Texas patient becomes incapacitated without a Medical Power of Attorney, state law assigns a surrogate decision-maker from the patient’s family in a fixed order of priority. Chapter 313 of the Texas Health and Safety Code, known as the Consent to Medical Treatment Act, tells hospitals exactly whom to approach so that care can move forward even when the patient never signed any advance planning documents.¹

The Priority Order Texas Uses

The law works top-down. If someone higher on the list is available and willing to act, no one below them has authority. The order is:

The patient’s legal spouse.
The patient’s adult children. A majority of those reasonably available must agree, or one adult child can act alone if every other adult child signs a written waiver.
The patient’s parents.
A person the patient clearly identified before losing capacity, even informally, to make these decisions.
A member of the clergy.
The patient’s nearest living relative.

“Reasonably available” is doing a lot of work in that list. It means the person can be reached with a genuine effort and can respond in time given the patient’s medical situation. A sibling overseas who can’t be contacted within hours may not qualify; a parent two towns over who answers the phone does.¹

What Has to Happen Before a Surrogate Can Act

Surrogate authority doesn’t switch on just because a patient seems confused or disoriented. The attending physician has to make a formal determination, based on reasonable medical judgment, that the patient cannot understand and appreciate the nature and consequences of a treatment decision, including the benefits, harms, and alternatives. That finding goes into the chart along with a description of the proposed treatment.²

From there, the physician must make a reasonably diligent effort to contact eligible surrogates in order, documenting each attempt and its result. That paper trail matters. If a dispute surfaces later, the record is what shows whether the hospital tried hard enough to reach higher-priority family members before turning to someone further down the list.²

What a Surrogate Can and Cannot Authorize

A surrogate can consent to treatment, refuse treatment, or withdraw treatment on the patient’s behalf. Texas law treats that consent as if the patient had given it personally. The surrogate is expected to decide based on what the patient would have wanted, drawing on known values and prior statements. When the patient’s wishes are truly unknown, the surrogate should act in the patient’s best interest.

Three things fall outside a surrogate’s authority, however. A surrogate cannot consent to voluntary inpatient mental health services, cannot authorize electroconvulsive treatment, and cannot appoint a different surrogate decision-maker. Those decisions require either the patient’s own consent or a court-appointed guardian.¹

When Family Members at the Same Level Disagree

The hardest situations involve several people at the same priority level who can’t come to agreement. Adult children splitting over a parent’s care is the common one. The statute gives two ways out: one child acts alone with written waivers from every sibling, or a majority of the reasonably available children decides.¹

An even split is a real problem. Two siblings who disagree, or four who break two-and-two, produce a deadlock the statute does not resolve. In that case, the entire class is effectively disqualified from making the decision, and any dispute over the right to act as surrogate has to be resolved in court.

Most hospitals offer an ethics committee consultation before anything reaches a courtroom. Ethics committees have no legal power to override a surrogate, but they can facilitate the conversation, identify what the disagreement is really about, and push family members to focus on the patient’s own expressed values. They work best when the family actually wants to reach agreement and poorly when the conflict is really about something else.

Emergencies Don’t Wait for a Surrogate

Families sometimes worry a patient will go untreated while the hospital works through the list. In a true emergency, that worry is misplaced. Texas law does not require consent for emergency care when a person is unconscious or otherwise unable to communicate and appears to be suffering a life-threatening injury or illness. Physicians treat first and work out surrogate consent after.³

That exception covers only care needed to address an immediate threat to life or limb. Once the patient is stable, ongoing or non-urgent decisions go back through the surrogate process. Emergency surgery after a car accident proceeds without permission; a decision about rehabilitation or an elective follow-up procedure waits for a surrogate.

When No One on the List Is Available

Some patients have no family, no friends, and no one who fits anywhere on the statutory list. Hospitals sometimes describe these patients as “unbefriended.” When no surrogate can be identified, the treating physician often makes care decisions by default, particularly in intensive care settings, and the hospital may bring in its ethics committee for oversight on major decisions or ask a court to appoint a guardian.

Texas Health and Human Services also runs a Surrogate Decision-Making Program for certain people receiving state services who have no guardian or family. That program carries its own exclusions: surrogates appointed through it cannot authorize abortion, sterilization, experimental research, or electroconvulsive therapy. Decisions outside the program’s scope require full guardianship.⁴

When Guardianship Is the Only Path Left

Guardianship becomes necessary when no one on the statutory list is available, when eligible surrogates refuse to act, when surrogates at the same level are deadlocked, or when the decision at hand (such as inpatient mental health treatment) is one a surrogate has no power to authorize.

A guardianship petition is filed in a Texas probate court. The petition identifies the proposed ward, describes the imminent danger to the person or their property, and names a proposed guardian. The court appoints an attorney ad litem to represent the proposed ward’s interests, and a judge decides who will serve.⁵

Full guardianship takes weeks or months. For urgent situations, Texas allows a temporary guardianship on a faster track. The court must find substantial evidence that the person is incapacitated and probable cause that immediate appointment is necessary to prevent serious harm. A hearing has to be held within 10 days of filing, though the proposed ward or their attorney can agree to postpone it up to 30 days. The judge limits the temporary guardian’s powers to whatever the specific circumstances actually require.⁶

Guardianship is expensive. Filing fees run a few hundred dollars, court-approved hourly rates for guardianship attorneys in Texas run roughly $250 to $600, and uncontested cases often land between $3,000 and $8,000 in total legal costs. Contested cases cost significantly more. There are also ongoing obligations: a guardian must file annual reports with the court on the ward’s condition and major decisions. Courts and advocacy organizations describe guardianship as a last resort for good reason.

How to Keep This From Happening to Your Family

Every path above is the backup plan. The simpler route is to sign a Medical Power of Attorney while you still have capacity. Under Chapter 166 of the Texas Health and Safety Code, you can designate any adult as your agent for health care decisions. The document has to be signed by you and witnessed by two qualified witnesses. It does not require a lawyer, and the Texas Health and Human Services website offers a free, fillable form.⁷

A Medical Power of Attorney lets you pick who speaks for you rather than leaving the choice to a statutory list that may not match your real relationships. It also sidesteps the disagreement problem entirely, because your named agent has sole authority. Pairing it with a written directive to physicians (often called a living will) spelling out your preferences on life-sustaining treatment gives your agent both the authority to decide and the guidance to decide the way you’d want.⁸

Both documents only take effect when a physician certifies you can no longer make your own decisions, so signing them changes nothing about your care today. Given that the alternative is a statutory checklist, possible family conflict, and the risk of an expensive guardianship, 15 minutes with the forms is one of the simplest pieces of planning you can do.

1
State of Texas. Texas Code Health and Safety Code – Consent for Medical Treatment
2
State of Texas. Texas Code Health and Safety Code Chapter 313 – Consent to Medical Treatment Act
3
State of Texas. Texas Code Health and Safety Code Chapter 773 – Emergency Health Care
4
Texas Health and Human Services. Surrogate Decision-Making Program
5
State of Texas. Texas Code Estates Code Chapter 1102 – Court-Initiated Procedure to Appoint Guardian
6
State of Texas. Texas Code Estates Code Chapter 1251 – Temporary Guardianships
7
State of Texas. Texas Code Health and Safety Code Chapter 166 – Advance Directives
8
Elder Justice Initiative (EJI). Guardianship: Less Restrictive Options