1-1 By: Moncrief S.B. No. 414
1-2 (In the Senate - Filed February 3, 1997; February 5, 1997,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; March 24, 1997, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 11, Nays 0;
1-6 March 24, 1997, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 414 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to certain advance directives for medical treatment.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 ARTICLE 1. ADVANCE DIRECTIVES
1-13 SECTION 1.01. Subtitle H, Title 2, Health and Safety Code,
1-14 is amended by adding a chapter heading for Chapter 166 to read as
1-15 follows:
1-16 CHAPTER 166. ADVANCE DIRECTIVES
1-17 SECTION 1.02. Subtitle H, Title 2, Health and Safety Code,
1-18 is amended by adding Subchapter A, Chapter 166, to read as follows:
1-19 SUBCHAPTER A. GENERAL PROVISIONS
1-20 Sec. 166.001. SHORT TITLE. This chapter may be cited as the
1-21 Advance Directives Act.
1-22 Sec. 166.002. DEFINITIONS. In this chapter:
1-23 (1) "Advance directive" means:
1-24 (A) a directive, as that term is defined by
1-25 Section 166.031; or
1-26 (B) an out-of-hospital DNR order, as that term
1-27 is defined by Section 166.081.
1-28 (2) "Attending physician" means a physician selected
1-29 by or assigned to a patient who has primary responsibility for a
1-30 patient's treatment and care.
1-31 (3) "Competent" means possessing the ability, based on
1-32 reasonable medical judgment, to understand and appreciate the
1-33 nature and consequences of a treatment decision, including the
1-34 significant benefits and harms of and reasonable alternatives to a
1-35 proposed treatment decision.
1-36 (4) "Declarant" means a person who has executed or
1-37 issued a directive under this chapter.
1-38 (5) "Durable power of attorney for health care" means
1-39 a durable power of attorney for health care executed or issued
1-40 under Subchapter D.
1-41 (6) "Incompetent" means lacking the ability, based on
1-42 reasonable medical judgment, to understand and appreciate the
1-43 nature and consequences of a treatment decision, including the
1-44 significant benefits and harms of and reasonable alternatives to a
1-45 proposed treatment decision.
1-46 (7) "Life-sustaining procedure" means a medical
1-47 procedure, treatment, or intervention that uses mechanical or other
1-48 artificial means to sustain, restore, or supplant a vital function
1-49 and, when applied to a person in a terminal condition, serves only
1-50 to prolong the process of dying. The term does not include the
1-51 administration of medication or the performance of a medical
1-52 procedure considered to be necessary to provide comfort or care or
1-53 to alleviate pain.
1-54 (8) "Physician" means:
1-55 (A) a physician licensed by the Texas State
1-56 Board of Medical Examiners; or
1-57 (B) a properly credentialed physician who holds
1-58 a commission in the uniformed services of the United States and who
1-59 is serving on active duty in this state.
1-60 (9) "Terminal condition" means an incurable or
1-61 irreversible condition caused by injury, disease, or illness that
1-62 would produce death without the application of life-sustaining
1-63 procedures, according to reasonable medical judgment, and in which
1-64 the application of life-sustaining procedures serves only to
2-1 postpone the moment of the patient's death. A patient who has been
2-2 admitted to a program under which the person receives hospice
2-3 services provided by a home and community support services agency
2-4 licensed under Chapter 142 is presumed to have a terminal condition
2-5 for purposes of this chapter.
2-6 (10) "Witness" means a person who may serve as a
2-7 witness under Section 166.003.
2-8 Sec. 166.003. WITNESSES. (a) In any circumstance in which
2-9 this chapter requires the execution of an advance directive or the
2-10 issuance of a nonwritten advance directive to be witnessed, a
2-11 witness may not be:
2-12 (1) related to the declarant by blood or marriage;
2-13 (2) entitled to any part of the declarant's estate
2-14 after the declarant's death under a will or codicil executed by the
2-15 declarant or by operation of law;
2-16 (3) the attending physician;
2-17 (4) an employee of the attending physician;
2-18 (5) a patient in a health care facility in which the
2-19 declarant is a patient;
2-20 (6) a person who, at the time the directive is
2-21 executed or the nonwritten directive is issued, has a claim against
2-22 any part of the declarant's estate after the declarant's death; or
2-23 (7) an employee of a health care facility in which the
2-24 declarant is a patient if the employee is providing direct patient
2-25 care or is directly involved in the financial affairs of the
2-26 facility.
2-27 (b) For purposes of Subsection (a)(7), a person is directly
2-28 involved in the financial affairs of a health care facility if the
2-29 person serves as an officer, director, partner, or business office
2-30 employee of the health care facility or of any parent organization
2-31 of the health care facility.
2-32 SECTION 1.03. Chapter 672, Health and Safety Code, is
2-33 transferred to Subtitle H, Title 2, Health and Safety Code, is
2-34 redesignated as Subchapter B, Chapter 166, Health and Safety Code,
2-35 and is amended to read as follows:
2-36 SUBCHAPTER B [CHAPTER 672]. NATURAL DEATH [ACT]
2-37 [Sec. 672.001. SHORT TITLE. This chapter may be cited as
2-38 the Natural Death Act.]
2-39 Sec. 166.031 [672.002]. DEFINITIONS. In this subchapter
2-40 [chapter]:
2-41 (1) ["Attending physician" means the physician who has
2-42 primary responsibility for a patient's treatment and care.]
2-43 [(2) "Competent" means possessing the ability, based
2-44 on reasonable medical judgment, to understand and appreciate the
2-45 nature and consequences of a treatment decision, including the
2-46 significant benefits and harms of and reasonable alternatives to a
2-47 proposed treatment decision.]
2-48 [(3) "Declarant" means a person who has executed or
2-49 issued a directive under this chapter.]
2-50 [(4)] "Directive" means an instruction made under
2-51 Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]
2-52 to withhold or withdraw life-sustaining procedures in the event of
2-53 a terminal condition.
2-54 (2) [(5) "Incompetent" means lacking the ability,
2-55 based on reasonable medical judgment, to understand and appreciate
2-56 the nature and consequences of a treatment decision, including the
2-57 significant benefits and harms of and reasonable alternatives to a
2-58 proposed treatment decision.]
2-59 [(6) "Life-sustaining procedure" means a medical
2-60 procedure or intervention that uses mechanical or other artificial
2-61 means to sustain, restore, or supplant a vital function, and only
2-62 artificially postpones the moment of death of a patient in a
2-63 terminal condition whose death is imminent or will result within a
2-64 relatively short time without the application of the procedure.
2-65 The term does not include the administration of medication or the
2-66 performance of a medical procedure considered to be necessary to
2-67 provide comfort or care or to alleviate pain.]
2-68 [(7) "Physician" means a physician licensed by the
2-69 Texas State Board of Medical Examiners or a properly credentialed
3-1 physician who holds a commission in the uniformed services of the
3-2 United States and who is serving on active duty in this state.]
3-3 [(8)] "Qualified patient" means a patient with a
3-4 terminal condition that has been diagnosed and certified in writing
3-5 by the attending physician and one other physician who have
3-6 personally examined the patient.
3-7 [(9) "Terminal condition" means an incurable or
3-8 irreversible condition caused by injury, disease, or illness that
3-9 would produce death without the application of life-sustaining
3-10 procedures, according to reasonable medical judgment, and in which
3-11 the application of life-sustaining procedures serves only to
3-12 postpone the moment of the patient's death.]
3-13 Sec. 166.032 [672.003]. WRITTEN DIRECTIVE BY COMPETENT
3-14 ADULT; NOTICE TO PHYSICIAN. (a) A competent adult may at any time
3-15 execute a written directive.
3-16 (b) The declarant must sign the directive in the presence of
3-17 two witnesses, and those witnesses must sign the directive.
3-18 (c) [A witness may not be:]
3-19 [(1) related to the declarant by blood or marriage;]
3-20 [(2) entitled to any part of the declarant's estate
3-21 after the declarant's death under a will or codicil executed by the
3-22 declarant or by operation of law;]
3-23 [(3) the attending physician;]
3-24 [(4) an employee of the attending physician;]
3-25 [(5) an employee of a health care facility in which
3-26 the declarant is a patient if the employee is providing direct
3-27 patient care to the declarant or is directly involved in the
3-28 financial affairs of the facility;]
3-29 [(6) a patient in a health care facility in which the
3-30 declarant is a patient; or]
3-31 [(7) a person who, at the time the directive is
3-32 executed, has a claim against any part of the declarant's estate
3-33 after the declarant's death.]
3-34 [(d)] A declarant may include in a directive directions
3-35 other than those provided by Section 166.033 [672.004] and may
3-36 designate in a directive a person to make a treatment decision for
3-37 the declarant in the event the declarant becomes comatose,
3-38 incompetent, or otherwise mentally or physically incapable of
3-39 communication.
3-40 (d) [(e)] A declarant shall notify the attending physician
3-41 of the existence of a written directive. If the declarant is
3-42 comatose, incompetent, or otherwise mentally or physically
3-43 incapable of communication, another person may notify the attending
3-44 physician of the existence of the written directive. The attending
3-45 physician shall make the directive a part of the declarant's
3-46 medical record.
3-47 Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A
3-48 written directive may be in the following form:
3-49 "DIRECTIVE
3-50 TO PHYSICIANS
3-51 "Directive made this __________ day of __________ (month,
3-52 year).
3-53 "I __________, being of sound mind, wilfully and voluntarily
3-54 make known my desire that my life shall not be artificially
3-55 prolonged under the circumstances set forth in this directive.
3-56 "1. If at any time I should have an incurable or
3-57 irreversible condition caused by injury, disease, or illness
3-58 certified to be a terminal condition by two physicians, and if the
3-59 application of life-sustaining procedures would serve only to
3-60 artificially postpone the moment of my death, and if my attending
3-61 physician determines that my death is imminent or will result
3-62 within a relatively short time without the application of
3-63 life-sustaining procedures, I direct that those procedures be
3-64 withheld or withdrawn, and that I be permitted to die naturally.
3-65 "2. In the absence of my ability to give directions
3-66 regarding the use of those life-sustaining procedures, it is my
3-67 intention that this directive be honored by my family and
3-68 physicians as the final expression of my legal right to refuse
3-69 medical or surgical treatment and accept the consequences from that
4-1 refusal.
4-2 "3. If I have been diagnosed as pregnant and that diagnosis
4-3 is known to my physician, this directive has no effect during my
4-4 pregnancy.
4-5 "4. This directive is in effect until it is revoked.
4-6 "5. I understand the full import of this directive and I am
4-7 emotionally and mentally competent to make this directive.
4-8 "6. I understand that I may revoke this directive at any
4-9 time.
4-10 "Signed ______________
4-11 (City, County, and State of
4-12 Residence)
4-13 I am not related to the declarant by blood or marriage. I
4-14 would not be entitled to any portion of the declarant's estate on
4-15 the declarant's death. I am not the attending physician of the
4-16 declarant or an employee of the attending physician. I am not a
4-17 patient in the health care facility in which the declarant is a
4-18 patient. I have no claim against any portion of the declarant's
4-19 estate on the declarant's death. Furthermore, if I am an employee
4-20 of a health care facility in which the declarant is a patient, I am
4-21 not involved in providing direct patient care to the declarant and
4-22 am not an officer, director, partner, or business office employee
4-23 of the health care facility or of any parent organization of
4-24 the health care [directly involved in the financial affairs of the
4-25 health] facility.
4-26 "Witness_________
4-27 "Witness_________"
4-28 Sec. 166.034 [672.005]. ISSUANCE OF NONWRITTEN DIRECTIVE BY
4-29 COMPETENT ADULT QUALIFIED PATIENT. (a) A competent qualified
4-30 patient who is an adult may issue a directive by a nonwritten means
4-31 of communication.
4-32 (b) A declarant must issue the nonwritten directive in the
4-33 presence of the attending physician and two witnesses. [The
4-34 witnesses must possess the same qualifications as are required by
4-35 Section 672.003(c).]
4-36 (c) The physician shall make the fact of the existence of
4-37 the directive a part of the declarant's medical record and the
4-38 witnesses shall sign the entry in the medical record.
4-39 Sec. 166.035 [672.006]. EXECUTION OF DIRECTIVE ON BEHALF OF
4-40 PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may
4-41 execute a directive on behalf of a qualified patient who is younger
4-42 than 18 years of age:
4-43 (1) the patient's spouse, if the spouse is an adult;
4-44 (2) the patient's parents; or
4-45 (3) the patient's legal guardian.
4-46 Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT
4-47 OF SPECIFIC FORM PROHIBITED. (a) A written directive executed
4-48 under Section 166.033 or 166.035 is effective without regard to
4-49 whether the document has been notarized.
4-50 (b) A physician, health care facility, or health care
4-51 professional may not require that:
4-52 (1) a directive be notarized; or
4-53 (2) a person use a form provided by the physician,
4-54 health care facility, or health care professional.
4-55 Sec. 166.037 [672.007]. PATIENT DESIRE SUPERSEDES DIRECTIVE.
4-56 The desire of a competent qualified patient, including a competent
4-57 qualified patient younger than 18 years of age, supersedes the
4-58 effect of a directive.
4-59 Sec. 166.038 [672.008]. PROCEDURE WHEN DECLARANT IS
4-60 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
4-61 applies when an adult qualified patient has executed or issued a
4-62 directive and is comatose, incompetent, or otherwise mentally or
4-63 physically incapable of communication.
4-64 (b) If the adult qualified patient has designated a person
4-65 to make a treatment decision as authorized by Section 166.032(c)
4-66 [672.003(d)], the attending physician and the designated person may
4-67 make a treatment decision to withhold or withdraw life-sustaining
4-68 procedures from the patient.
4-69 (c) If the adult qualified patient has not designated a
5-1 person to make a treatment decision, the attending physician shall
5-2 comply with the directive unless the physician believes that the
5-3 directive does not reflect the patient's present desire.
5-4 Sec. 166.039 [672.009]. PROCEDURE WHEN PERSON HAS NOT
5-5 EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
5-6 COMMUNICATION. (a) If an adult qualified patient has not executed
5-7 or issued a directive and is comatose, incompetent, or otherwise
5-8 mentally or physically incapable of communication, the attending
5-9 physician and the patient's legal guardian or an agent under a
5-10 durable power of attorney for health care may make a treatment
5-11 decision that may include a decision to withhold or withdraw
5-12 life-sustaining procedures from the patient.
5-13 (b) If the patient does not have a legal guardian or an
5-14 agent under a durable power of attorney for health care, the
5-15 attending physician and one person from one [at least two persons,
5-16 if available,] of the following categories, in the following
5-17 priority, may make a treatment decision that may include a decision
5-18 to withhold or withdraw life-sustaining procedures:
5-19 (1) the patient's spouse;
5-20 (2) [a majority of] the patient's reasonably available
5-21 adult children;
5-22 (3) the patient's parents; or
5-23 (4) the patient's nearest living relative.
5-24 (c) A treatment decision made under Subsection (a) or (b)
5-25 must be based on knowledge of what the patient would desire, if
5-26 known.
5-27 (d) A treatment decision made under Subsection (b) must be
5-28 made in the presence of at least two witnesses who possess the same
5-29 qualifications and are subject to the same restrictions as provided
5-30 [as are required] by Section 166.003 [672.003(c)].
5-31 (e) The fact that an adult qualified patient has not
5-32 executed or issued a directive does not create a presumption that
5-33 the patient does not want a treatment decision to be made to
5-34 withhold or withdraw life-sustaining procedures.
5-35 Sec. 166.040 [672.010]. PATIENT CERTIFICATION AND
5-36 PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending
5-37 physician who has been notified of the existence of a directive
5-38 shall provide for the declarant's certification as a qualified
5-39 patient on diagnosis of a terminal condition.
5-40 (b) Before withholding or withdrawing life-sustaining
5-41 procedures from a qualified patient under this subchapter
5-42 [chapter], the attending physician must:
5-43 (1) determine that the patient's death is imminent or
5-44 will result within a relatively short time without application of
5-45 those procedures;
5-46 (2) note that determination in the patient's medical
5-47 record; and
5-48 (3) determine that the steps proposed to be taken are
5-49 in accord with this subchapter [chapter] and the patient's existing
5-50 desires.
5-51 Sec. 166.041 [672.011]. DURATION OF DIRECTIVE. A directive
5-52 is effective until it is revoked as prescribed by Section 166.042
5-53 [672.012].
5-54 Sec. 166.042 [672.012]. REVOCATION OF DIRECTIVE. (a) A
5-55 declarant may revoke a directive at any time without regard to the
5-56 declarant's mental state or competency. A directive may be revoked
5-57 by:
5-58 (1) the declarant or someone in the declarant's
5-59 presence and at the declarant's direction canceling, defacing,
5-60 obliterating, burning, tearing, or otherwise destroying the
5-61 directive;
5-62 (2) the declarant signing and dating a written
5-63 revocation that expresses the declarant's intent to revoke the
5-64 directive; or
5-65 (3) the declarant orally stating the declarant's
5-66 intent to revoke the directive.
5-67 (b) A written revocation executed as prescribed by
5-68 Subsection (a)(2) takes effect only when the declarant or a person
5-69 acting on behalf of the declarant notifies the attending physician
6-1 of its existence or mails the revocation to the attending
6-2 physician. The attending physician or the physician's designee
6-3 shall record in the patient's medical record the time and date when
6-4 the physician received notice of the written revocation and shall
6-5 enter the word "VOID" on each page of the copy of the directive in
6-6 the patient's medical record.
6-7 (c) An oral revocation issued as prescribed by Subsection
6-8 (a)(3) takes effect only when the declarant or a person acting on
6-9 behalf of the declarant notifies the attending physician of the
6-10 revocation. The attending physician or the physician's designee
6-11 shall record in the patient's medical record the time, date, and
6-12 place of the revocation, and, if different, the time, date, and
6-13 place that the physician received notice of the revocation. The
6-14 attending physician or the physician's designees shall also enter
6-15 the word "VOID" on each page of the copy of the directive in the
6-16 patient's medical record.
6-17 (d) Except as otherwise provided by this subchapter
6-18 [chapter], a person is not civilly or criminally liable for failure
6-19 to act on a revocation made under this section unless the person
6-20 has actual knowledge of the revocation.
6-21 Sec. 166.043 [672.013]. REEXECUTION OF DIRECTIVE. A
6-22 declarant may at any time reexecute a directive in accordance with
6-23 the procedures prescribed by Section 166.032 [672.003], including
6-24 reexecution after the declarant is diagnosed as having a terminal
6-25 condition.
6-26 Sec. 166.044 [672.014]. EFFECT OF DIRECTIVE ON INSURANCE
6-27 POLICY AND PREMIUMS. (a) The fact that a person has executed or
6-28 issued a directive under this subchapter [chapter] does not:
6-29 (1) restrict, inhibit, or impair in any manner the
6-30 sale, procurement, or issuance of a life insurance policy to that
6-31 person; or
6-32 (2) modify the terms of an existing life insurance
6-33 policy.
6-34 (b) Notwithstanding the terms of any life insurance policy,
6-35 the fact that life-sustaining procedures are withheld or withdrawn
6-36 from an insured qualified patient under this subchapter [chapter]
6-37 does not legally impair or invalidate that person's life insurance
6-38 policy.
6-39 (c) A physician, health facility, health provider, insurer,
6-40 or health care service plan may not require a person to execute or
6-41 issue a directive as a condition for obtaining insurance for health
6-42 care services or receiving health care services.
6-43 (d) The fact that a person has executed or issued or failed
6-44 to execute or issue a directive under this subchapter [chapter] may
6-45 not be considered in any way in establishing insurance premiums.
6-46 Sec. 166.045 [672.015]. LIMITATION OF LIABILITY FOR
6-47 WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A
6-48 physician or health facility that, in good faith, causes
6-49 life-sustaining procedures to be withheld or withdrawn from a
6-50 qualified patient in accordance with this subchapter [chapter] is
6-51 not civilly liable for that action [unless negligent].
6-52 (b) A health professional, acting under the direction of a
6-53 physician, who participates, in good faith, in withholding or
6-54 withdrawing life-sustaining procedures from a qualified patient in
6-55 accordance with this subchapter [chapter] is not civilly liable for
6-56 that action [unless negligent].
6-57 (c) A physician, or a health professional acting under the
6-58 direction of a physician, who participates, in good faith, in
6-59 withholding or withdrawing life-sustaining procedures from a
6-60 qualified patient in accordance with this subchapter [chapter] is
6-61 not criminally liable or guilty of unprofessional conduct as a
6-62 result of that action [unless negligent].
6-63 Sec. 166.046 [672.016]. LIMITATION OF LIABILITY FOR FAILURE
6-64 TO EFFECTUATE DIRECTIVE. (a) A physician, health care facility,
6-65 or health care professional who has no knowledge of a directive is
6-66 not civilly or criminally liable for failing to act in accordance
6-67 with the directive.
6-68 (b) A physician, or a health professional acting under the
6-69 direction of a physician, is not civilly or criminally liable for
7-1 failing to effectuate a qualified patient's directive.
7-2 (c) If an attending physician refuses to comply with a
7-3 directive or treatment decision, the physician shall make a
7-4 reasonable effort to transfer the patient to another physician.
7-5 Sec. 166.047 [672.017]. HONORING DIRECTIVE DOES NOT
7-6 CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an
7-7 offense under Section 22.08, Penal Code, by withholding or
7-8 withdrawing life-sustaining procedures from a qualified patient in
7-9 accordance with this subchapter [chapter].
7-10 Sec. 166.048 [672.018]. CRIMINAL PENALTY; PROSECUTION.
7-11 (a) A person commits an offense if the person intentionally
7-12 conceals, cancels, defaces, obliterates, or damages another
7-13 person's directive without that person's consent. An offense under
7-14 this subsection is a Class A misdemeanor.
7-15 (b) A person is subject to prosecution for criminal homicide
7-16 under Chapter 19, Penal Code, if the person, with the intent to
7-17 cause life-sustaining procedures to be withheld or withdrawn from
7-18 another person contrary to the other person's desires, falsifies or
7-19 forges a directive or intentionally conceals or withholds personal
7-20 knowledge of a revocation and thereby directly causes
7-21 life-sustaining procedures to be withheld or withdrawn from the
7-22 other person with the result that the other person's death is
7-23 hastened.
7-24 Sec. 166.049 [672.019]. PREGNANT PATIENTS. A person may not
7-25 withdraw or withhold life-sustaining procedures under this
7-26 subchapter [chapter] from a pregnant patient.
7-27 Sec. 166.050 [672.020]. MERCY KILLING NOT CONDONED. This
7-28 subchapter [chapter] does not condone, authorize, or approve mercy
7-29 killing or permit an affirmative or deliberate act or omission to
7-30 end life except to permit the natural process of dying as provided
7-31 by this subchapter [chapter].
7-32 Sec. 166.051 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT
7-33 AFFECTED. This subchapter [chapter] does not impair or supersede
7-34 any legal right or responsibility a person may have to effect the
7-35 withholding or withdrawal of life-sustaining procedures in a lawful
7-36 manner.
7-37 SECTION 1.04. Chapter 674, Health and Safety Code, is
7-38 transferred to Subtitle H, Title 2, Health and Safety Code, is
7-39 redesignated as Subchapter C, Chapter 166, Health and Safety Code,
7-40 and is amended to read as follows:
7-41 SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
7-42 DO-NOT-RESUSCITATE ORDERS
7-43 Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter
7-44 [chapter]:
7-45 (1) ["Attending physician" means the physician who has
7-46 primary responsibility for a person's treatment and care.]
7-47 [(2) "Board" means the Texas Board of Health.]
7-48 [(3)] "Cardiopulmonary resuscitation" includes a
7-49 component of cardiopulmonary resuscitation.
7-50 (2) [(4) "Competent" means possessing the ability,
7-51 based on reasonable medical judgment, to understand and appreciate
7-52 the nature and consequences of a treatment decision, including the
7-53 significant benefits and harms of, and reasonable alternatives to,
7-54 a proposed treatment decision.]
7-55 [(5) "Declarant" means a person who has executed or
7-56 issued an out-of-hospital do-not-resuscitate order under this
7-57 chapter.]
7-58 [(6) "Department" means the Texas Department of
7-59 Health.]
7-60 [(7)] "DNR identification device" means an
7-61 identification device specified by the board under Section 166.103
7-62 [674.023] that is worn for the purpose of identifying a person who
7-63 has executed or issued an out-of-hospital DNR order or on whose
7-64 behalf an out-of-hospital DNR order has been executed or issued
7-65 under this subchapter [chapter].
7-66 (3) [(8) "Durable power of attorney for health care"
7-67 means a document delegating to an agent the authority to make
7-68 health care decisions for a person in accordance with Chapter 135,
7-69 Civil Practice and Remedies Code.]
8-1 [(9)] "Emergency medical services" has the meaning
8-2 assigned by Section 773.003.
8-3 (4) [(10)] "Emergency medical services personnel" has
8-4 the meaning assigned by Section 773.003.
8-5 (5) [(11)] "Health care professionals" means
8-6 physicians, nurses, and emergency medical services personnel and,
8-7 unless the context requires otherwise, includes hospital emergency
8-8 personnel.
8-9 (6) [(12) "Incompetent" means lacking the ability,
8-10 based on reasonable medical judgment, to understand and appreciate
8-11 the nature and consequences of a treatment decision, including the
8-12 significant benefits and harms of, and reasonable alternatives to,
8-13 a proposed treatment decision.]
8-14 [(13) "Life-sustaining procedure" means a medical
8-15 procedure, treatment, or intervention that uses mechanical or other
8-16 artificial means to sustain, restore, or supplant a spontaneous
8-17 vital function and, when applied to a person in a terminal
8-18 condition, serves only to prolong the process of dying. The term
8-19 does not include the administration of medication or the
8-20 performance of a medical procedure considered to be necessary to
8-21 provide comfort or care or to alleviate pain or the provision of
8-22 water or nutrition.]
8-23 [(14)] "Out-of-hospital DNR order":
8-24 (A) means a legally binding out-of-hospital
8-25 do-not-resuscitate order, in the form specified by the board under
8-26 Section 166.083 [674.003], prepared and signed by the attending
8-27 physician of a person who has been diagnosed as having a terminal
8-28 condition, that documents the instructions of a person or the
8-29 person's legally authorized representative and directs health care
8-30 professionals acting in an out-of-hospital setting not to initiate
8-31 or continue the following life-sustaining procedures:
8-32 (i) cardiopulmonary resuscitation;
8-33 (ii) endotracheal intubation or other
8-34 means of advanced airway management;
8-35 (iii) artificial ventilation;
8-36 (iv) defibrillation;
8-37 (v) transcutaneous cardiac pacing;
8-38 (vi) the administration of cardiac
8-39 resuscitation medications; and
8-40 (vii) other life-sustaining procedures
8-41 specified by the board under Section 166.103(a) [674.023(a)]; and
8-42 (B) does not include authorization to withhold
8-43 medical interventions or therapies considered necessary to provide
8-44 comfort or care or to alleviate pain or to provide water or
8-45 nutrition.
8-46 (7) [(15)] "Out-of-hospital setting" means any setting
8-47 outside of a licensed acute care hospital in which health care
8-48 professionals are called for assistance, including long-term care
8-49 facilities, in-patient hospice facilities, private homes, and
8-50 vehicles during transport.
8-51 (8) [(16) "Physician" means a physician licensed by
8-52 the Texas State Board of Medical Examiners or a properly
8-53 credentialed physician who holds a commission in the uniformed
8-54 services of the United States and who is serving on active duty in
8-55 this state.]
8-56 [(17)] "Proxy" means a person designated and
8-57 authorized by a directive executed or issued in accordance with
8-58 Subchapter B [Chapter 672] to make a treatment decision for another
8-59 person in the event the other person becomes comatose, incompetent,
8-60 or otherwise mentally or physically incapable of communication.
8-61 (9) [(18)] "Qualified relatives" means those persons
8-62 authorized to execute or issue an out-of-hospital DNR order on
8-63 behalf of a person who is comatose, incompetent, or otherwise
8-64 mentally or physically incapable of communication under Section
8-65 166.088 [674.008].
8-66 (10) [(19)] "Statewide out-of-hospital DNR protocol"
8-67 means a set of statewide standardized procedures adopted by the
8-68 board under Section 166.103 [674.023] for withholding
8-69 cardiopulmonary resuscitation and certain other life-sustaining
9-1 procedures by health care professionals acting in out-of-hospital
9-2 settings.
9-3 [(20) "Terminal condition" means an incurable or
9-4 irreversible condition caused by injury, disease, or illness that
9-5 would produce death without the application of life-sustaining
9-6 procedures, according to reasonable medical judgment, and in which
9-7 the application of life-sustaining procedures serves only to
9-8 postpone the moment of the person's death.]
9-9 Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
9-10 TO PHYSICIANS. (a) A competent person who has been diagnosed by a
9-11 physician as having a terminal condition may at any time execute a
9-12 written out-of-hospital DNR order directing health care
9-13 professionals acting in an out-of-hospital setting to withhold
9-14 cardiopulmonary resuscitation and certain other life-sustaining
9-15 procedures designated by the board.
9-16 (b) The declarant must sign the out-of-hospital DNR order in
9-17 the presence of two witnesses, and those witnesses must sign the
9-18 order. The attending physician of the declarant must sign the
9-19 order and shall make the fact of the existence of the order and the
9-20 reasons for execution of the order a part of the declarant's
9-21 medical record.
9-22 (c) [A witness must have the same qualifications as those
9-23 provided by Section 672.003(c).]
9-24 [(d)] If the person is incompetent but previously executed
9-25 or issued a directive to physicians in accordance with Subchapter B
9-26 [Chapter 672], the physician may rely on the directive as the
9-27 person's instructions to issue an out-of-hospital DNR order and
9-28 shall place a copy of the directive in the person's medical record.
9-29 The physician shall sign the order in lieu of the person signing
9-30 under Subsection (b).
9-31 (d) [(e)] If the person is incompetent but previously
9-32 executed or issued a directive to physicians in accordance with
9-33 Subchapter B [Chapter 672] designating a proxy, the proxy may make
9-34 any decisions required of the designating person as to an
9-35 out-of-hospital DNR order and shall sign the order in lieu of the
9-36 person signing under Subsection (b).
9-37 (e) [(f)] If the person is now incompetent but previously
9-38 executed or issued a durable power of attorney for health care [in
9-39 accordance with Chapter 135, Civil Practice and Remedies Code],
9-40 designating an agent, the agent may make any decisions required of
9-41 the designating person as to an out-of-hospital DNR order and shall
9-42 sign the order in lieu of the person signing under Subsection (b).
9-43 (f) [(g)] The board, on the recommendation of the
9-44 department, shall by rule adopt procedures for the disposition and
9-45 maintenance of records of an original out-of-hospital DNR order and
9-46 any copies of the order.
9-47 (g) [(h)] An out-of-hospital DNR order is effective on its
9-48 execution.
9-49 Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER.
9-50 (a) A written out-of-hospital DNR order shall be in the standard
9-51 form specified by board rule as recommended by the department.
9-52 (b) The standard form of an out-of-hospital DNR order
9-53 specified by the board must, at a minimum, contain the following:
9-54 (1) a distinctive single-page format that readily
9-55 identifies the document as an out-of-hospital DNR order;
9-56 (2) a title that readily identifies the document as an
9-57 out-of-hospital DNR order;
9-58 (3) the printed or typed name of the person;
9-59 (4) a statement that the physician signing the
9-60 document is the attending physician of the person, that the
9-61 physician has diagnosed the person as having a terminal condition,
9-62 and that the physician is directing health care professionals
9-63 acting in out-of-hospital settings not to initiate or continue
9-64 certain life-sustaining procedures on behalf of the person, and a
9-65 listing of those procedures not to be initiated or continued;
9-66 (5) a statement that the person understands that the
9-67 person may revoke the out-of-hospital DNR order at any time by
9-68 destroying the order and removing the DNR identification device, if
9-69 any, or by communicating to health care professionals at the scene
10-1 the person's desire to revoke the out-of-hospital DNR order;
10-2 (6) places for the printed names and signatures of the
10-3 witnesses and attending physician of the person and the medical
10-4 license number of the attending physician;
10-5 (7) a separate section for execution of the document
10-6 by the legal guardian of the person, the person's proxy, an agent
10-7 of the person having a durable power of attorney for health care,
10-8 or the attending physician attesting to the issuance of an
10-9 out-of-hospital DNR order by nonwritten means of communication or
10-10 acting in accordance with a previously executed or previously
10-11 issued directive to physicians under Section 166.082(c)
10-12 [674.002(d)] that includes the following:
10-13 (A) a statement that the legal guardian, the
10-14 proxy, the agent, the person by nonwritten means of communication,
10-15 or the physician directs that the listed life-sustaining procedures
10-16 should not be initiated or continued in behalf of the person; and
10-17 (B) places for the printed names and signatures
10-18 of the witnesses and, as applicable, the legal guardian, proxy,
10-19 agent, or physician;
10-20 (8) a separate section for execution of the document
10-21 by at least two qualified relatives of the person when the person
10-22 does not have a legal guardian, proxy, or agent having a durable
10-23 power of attorney for health care and is comatose, incompetent, or
10-24 otherwise mentally or physically incapable of communication,
10-25 including:
10-26 (A) a statement that the relatives of the person
10-27 are qualified to make a treatment decision to withhold
10-28 cardiopulmonary resuscitation and certain other designated
10-29 life-sustaining procedures under Section 166.088 [674.008] and,
10-30 based on the known desires of the person or a determination of the
10-31 best interest of the person, direct that the listed life-sustaining
10-32 procedures should not be initiated or continued in behalf of the
10-33 person; and
10-34 (B) places for the printed names and signatures
10-35 of the witnesses and qualified relatives of the person;
10-36 (9) a place for entry of the date of execution of the
10-37 document;
10-38 (10) a statement that the document is in effect on the
10-39 date of its execution and remains in effect until the death of the
10-40 person or until the document is revoked;
10-41 (11) a statement that the document must accompany the
10-42 person during transport;
10-43 (12) a statement regarding the proper disposition of
10-44 the document or copies of the document, as the board determines
10-45 appropriate; and
10-46 (13) a statement at the bottom of the document, with
10-47 places for the signature of each person executing the document,
10-48 that the document has been properly completed.
10-49 (c) The board may, by rule and as recommended by the
10-50 department, modify the standard form of the out-of-hospital DNR
10-51 order described by Subsection (b) in order to accomplish the
10-52 purposes of this subchapter [chapter].
10-53 Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR
10-54 ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is
10-55 an adult may issue an out-of-hospital DNR order by nonwritten
10-56 communication.
10-57 (b) A declarant must issue the nonwritten out-of-hospital
10-58 DNR order in the presence of the attending physician and two
10-59 witnesses. [The witnesses must possess the same qualifications as
10-60 those provided by Section 672.003(c).]
10-61 (c) The attending physician and witnesses shall sign the
10-62 out-of-hospital DNR order in the [that] place of the document
10-63 provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
10-64 physician shall sign the document in the place required by Section
10-65 166.083(b)(13) [674.003(b)(13)]. The physician shall make the fact
10-66 of the existence of the out-of-hospital DNR order a part of the
10-67 declarant's medical record and the witnesses shall sign that entry
10-68 in the medical record.
10-69 (d) An out-of-hospital DNR order issued in the manner
11-1 provided by this section is valid and shall be honored by
11-2 responding health care professionals as if executed in the manner
11-3 provided by Section 166.082 [674.002].
11-4 Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR
11-5 ORDER ON BEHALF OF A MINOR. The following persons may execute an
11-6 out-of-hospital DNR order on behalf of a minor:
11-7 (1) the minor's parents;
11-8 (2) the minor's legal guardian; or
11-9 (3) the minor's managing conservator.
11-10 Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES
11-11 OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person,
11-12 including a competent minor, supersedes the effect of an
11-13 out-of-hospital DNR order executed or issued by or on behalf of the
11-14 person when the desire is communicated to responding health care
11-15 professionals as provided by this subchapter [chapter].
11-16 Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS
11-17 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
11-18 applies when a person 18 years of age or older has executed or
11-19 issued an out-of-hospital DNR order and subsequently becomes
11-20 comatose, incompetent, or otherwise mentally or physically
11-21 incapable of communication.
11-22 (b) If the adult person has designated a person to make a
11-23 treatment decision as authorized by Section 166.032(c)
11-24 [672.003(d)], the attending physician and the designated person
11-25 shall comply with the out-of-hospital DNR order.
11-26 (c) If the adult person has not designated a person to make
11-27 a treatment decision as authorized by Section 166.032(c)
11-28 [672.003(d)], the attending physician shall comply with the
11-29 out-of-hospital DNR order unless the physician believes that the
11-30 order does not reflect the person's present desire.
11-31 Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT
11-32 EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
11-33 INCAPABLE OF COMMUNICATION. (a) If an adult person has not
11-34 executed or issued an out-of-hospital DNR order and is comatose,
11-35 incompetent, or otherwise mentally or physically incapable of
11-36 communication, the attending physician and the person's legal
11-37 guardian, proxy, or agent having a durable power of attorney for
11-38 health care may execute an out-of-hospital DNR order on behalf of
11-39 the person.
11-40 (b) If the person does not have a legal guardian, proxy, or
11-41 agent, the attending physician and at least two qualified relatives
11-42 may execute an out-of-hospital DNR order in the same manner as a
11-43 treatment decision made under Section 166.039(b) [672.009(b)].
11-44 (c) A decision to execute an out-of-hospital DNR order made
11-45 under Subsection (a) or (b) must be based on knowledge of what the
11-46 person would desire, if known.
11-47 (d) An out-of-hospital DNR order executed under Subsection
11-48 (b) must be made in the presence of at least two witnesses [who
11-49 possess the same qualifications that are required by Section
11-50 672.003(c)].
11-51 (e) The fact that an adult person has not executed or issued
11-52 an out-of-hospital DNR order does not create a presumption that the
11-53 person does not want a treatment decision made to withhold
11-54 cardiopulmonary resuscitation and certain other designated
11-55 life-sustaining procedures designated by the board.
11-56 Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR
11-57 ORDER. (a) When responding to a call for assistance, health care
11-58 professionals shall honor an out-of-hospital DNR order in
11-59 accordance with the statewide out-of-hospital DNR protocol and,
11-60 where applicable, locally adopted out-of-hospital DNR protocols not
11-61 in conflict with the statewide protocol if:
11-62 (1) the responding health care professionals discover
11-63 an executed or issued out-of-hospital DNR order form on their
11-64 arrival at the scene; and
11-65 (2) the responding health care professionals comply
11-66 with this section.
11-67 (b) If the person is wearing a DNR identification device,
11-68 the responding health care professionals must comply with Section
11-69 166.090 [674.010].
12-1 (c) The responding health care professionals must establish
12-2 the identity of the person as the person who executed or issued the
12-3 out-of-hospital DNR order or for whom the out-of-hospital DNR order
12-4 was executed or issued.
12-5 (d) The responding health care professionals must determine
12-6 that the out-of-hospital DNR order form appears to be valid in that
12-7 it includes:
12-8 (1) written responses in the places designated on the
12-9 form for the names, signatures, and other information required of
12-10 persons executing or issuing, or witnessing the execution or
12-11 issuance of, the order;
12-12 (2) a date in the place designated on the form for the
12-13 date the order was executed or issued; and
12-14 (3) the signature of the declarant or persons
12-15 executing or issuing the order and the attending physician in the
12-16 appropriate places designated on the form for indicating that the
12-17 order form has been properly completed.
12-18 (e) If the conditions prescribed by Subsections (a) through
12-19 (d) are not determined to apply by the responding health care
12-20 professionals at the scene, the out-of-hospital DNR order may not
12-21 be honored and life-sustaining procedures otherwise required by law
12-22 or local emergency medical services protocols shall be initiated or
12-23 continued. Health care professionals acting in out-of-hospital
12-24 settings are not required to accept or interpret an out-of-hospital
12-25 DNR order that does not meet the requirements of this subchapter
12-26 [chapter].
12-27 (f) The out-of-hospital DNR order form, when available, must
12-28 accompany the person during transport.
12-29 (g) A record shall be made and maintained of the
12-30 circumstances of each emergency medical services response in which
12-31 an out-of-hospital DNR order or DNR identification device is
12-32 encountered, in accordance with the statewide out-of-hospital DNR
12-33 protocol and any applicable local out-of-hospital DNR protocol not
12-34 in conflict with the statewide protocol.
12-35 (h) An out-of-hospital DNR order executed or issued and
12-36 documented or evidenced in the manner prescribed by this subchapter
12-37 [chapter] is valid and shall be honored by responding health care
12-38 professionals unless the person or persons found at the scene:
12-39 (1) identify themselves as the declarant or as the
12-40 attending physician, legal guardian, qualified relative, or agent
12-41 of the person having a durable power of attorney for health care
12-42 who executed or issued the out-of-hospital DNR order on behalf of
12-43 the person; and
12-44 (2) request that cardiopulmonary resuscitation or
12-45 certain other life-sustaining procedures designated by the board be
12-46 initiated or continued.
12-47 (i) If the policies of a health care facility preclude
12-48 compliance with the out-of-hospital DNR order of a person or an
12-49 out-of-hospital DNR order issued by an attending physician on
12-50 behalf of a person who is admitted to or a resident of the
12-51 facility, or if the facility is unwilling to accept DNR
12-52 identification devices as evidence of the existence of an
12-53 out-of-hospital DNR order, that facility shall take all reasonable
12-54 steps to notify the person or, if the person is incompetent, the
12-55 person's guardian or the person or persons having authority to make
12-56 health care treatment decisions on behalf of the person, of the
12-57 facility's policy and shall take all reasonable steps to effect the
12-58 transfer of the person to the person's home or to a facility where
12-59 the provisions of this subchapter [chapter] can be carried out.
12-60 Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A
12-61 person who has a valid out-of-hospital DNR order under this
12-62 subchapter [chapter] may wear a DNR identification device around
12-63 the neck or on the wrist as prescribed by board rule adopted under
12-64 Section 166.103 [674.023].
12-65 (b) The presence of a DNR identification device on the body
12-66 of a person is conclusive evidence that the person has executed or
12-67 issued a valid out-of-hospital DNR order or has a valid
12-68 out-of-hospital DNR order executed or issued on the person's
12-69 behalf. Responding health care professionals shall honor the DNR
13-1 identification device as if a valid out-of-hospital DNR order form
13-2 executed or issued by the person were found in the possession of
13-3 the person.
13-4 Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR
13-5 ORDER. An out-of-hospital DNR order is effective until it is
13-6 revoked as prescribed by Section 166.092 [674.012].
13-7 Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR
13-8 ORDER. (a) A declarant may revoke an out-of-hospital DNR order at
13-9 any time without regard to the declarant's mental state or
13-10 competency. An order may be revoked by:
13-11 (1) the declarant or someone in the declarant's
13-12 presence and at the declarant's direction destroying the order form
13-13 and removing the DNR identification device, if any;
13-14 (2) a person who identifies himself or herself as the
13-15 legal guardian, as a qualified relative, or as the agent of the
13-16 declarant having a durable power of attorney for health care who
13-17 executed the out-of-hospital DNR order or another person in the
13-18 person's presence and at the person's direction destroying the
13-19 order form and removing the DNR identification device, if any;
13-20 (3) the declarant communicating the declarant's intent
13-21 to revoke the order; or
13-22 (4) a person who identifies himself or herself as the
13-23 legal guardian, a qualified relative, or the agent of the declarant
13-24 having a durable power of attorney for health care who executed the
13-25 out-of-hospital DNR order orally stating the person's intent to
13-26 revoke the order.
13-27 (b) An oral revocation under Subsection (a)(3) or (a)(4)
13-28 takes effect only when the declarant or a person who identifies
13-29 himself or herself as the legal guardian, a qualified relative, or
13-30 the agent of the declarant having a durable power of attorney for
13-31 health care who executed the out-of-hospital DNR order communicates
13-32 the intent to revoke the order to the responding health care
13-33 professionals or the attending physician at the scene. The
13-34 responding health care professionals shall record the time, date,
13-35 and place of the revocation in accordance with the statewide
13-36 out-of-hospital DNR protocol and rules adopted by the board and any
13-37 applicable local out-of-hospital DNR protocol. The attending
13-38 physician or the physician's designee shall record in the person's
13-39 medical record the time, date, and place of the revocation and, if
13-40 different, the time, date, and place that the physician received
13-41 notice of the revocation. The attending physician or the
13-42 physician's designee shall also enter the word "VOID" on each page
13-43 of the copy of the order in the person's medical record.
13-44 (c) Except as otherwise provided by this subchapter
13-45 [chapter], a person is not civilly or criminally liable for failure
13-46 to act on a revocation made under this section unless the person
13-47 has actual knowledge of the revocation.
13-48 Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR
13-49 ORDER. A declarant may at any time reexecute or reissue an
13-50 out-of-hospital DNR order in accordance with the procedures
13-51 prescribed by Section 166.082 [674.002], including reexecution or
13-52 reissuance after the declarant is diagnosed as having a terminal
13-53 condition.
13-54 Sec. 166.094 [674.014]. CONFLICT WITH NATURAL DEATH LAW
13-55 [ACT] OR DURABLE POWER OF ATTORNEY FOR HEALTH CARE. To the extent
13-56 that an out-of-hospital DNR order conflicts with a directive or
13-57 treatment decision executed or issued under Subchapter B [Chapter
13-58 672] or a durable power of attorney for health care [executed or
13-59 issued in accordance with Chapter 135, Civil Practice and Remedies
13-60 Code], the instrument executed later in time controls.
13-61 Sec. 166.095 [674.015]. EFFECT OF OUT-OF-HOSPITAL DNR ORDER
13-62 ON INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has
13-63 executed or issued an out-of-hospital DNR order under this
13-64 subchapter [chapter] does not:
13-65 (1) restrict, inhibit, or impair in any manner the
13-66 sale, procurement, or issuance of a life insurance policy to that
13-67 person; or
13-68 (2) modify the terms of an existing life insurance
13-69 policy.
14-1 (b) Notwithstanding the terms of any life insurance policy,
14-2 the fact that cardiopulmonary resuscitation or certain other
14-3 life-sustaining procedures designated by the board are withheld
14-4 from an insured person under this subchapter [chapter] does not
14-5 legally impair or invalidate that person's life insurance policy
14-6 and may not be a factor for the purpose of determining the
14-7 payability of benefits or the cause of death under the life
14-8 insurance policy.
14-9 (c) A physician, health facility, health care provider,
14-10 insurer, or health care service plan may not require a person to
14-11 execute or issue an out-of-hospital DNR order as a condition for
14-12 obtaining insurance for health care services or receiving health
14-13 care services.
14-14 (d) The fact that a person has executed or issued or failed
14-15 to execute or issue an out-of-hospital DNR order under this
14-16 subchapter [chapter] may not be considered in any way in
14-17 establishing insurance premiums.
14-18 Sec. 166.096 [674.016]. LIMITATION ON LIABILITY FOR
14-19 WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
14-20 LIFE-SUSTAINING PROCEDURES. (a) A health care professional or
14-21 health care facility or entity that in good faith causes
14-22 cardiopulmonary resuscitation or certain other life-sustaining
14-23 procedures designated by the board to be withheld from a person in
14-24 accordance with this subchapter [chapter] is not civilly liable for
14-25 that action.
14-26 (b) A health care professional or health care facility or
14-27 entity that in good faith participates in withholding
14-28 cardiopulmonary resuscitation or certain other life-sustaining
14-29 procedures designated by the board from a person in accordance with
14-30 this subchapter [chapter] is not civilly liable for that action.
14-31 (c) A health care professional or health care facility or
14-32 entity that in good faith participates in withholding
14-33 cardiopulmonary resuscitation or certain other life-sustaining
14-34 procedures designated by the board from a person in accordance with
14-35 this subchapter [chapter] is not criminally liable or guilty of
14-36 unprofessional conduct as a result of that action.
14-37 (d) A health care professional or health care facility or
14-38 entity that in good faith causes or participates in withholding
14-39 cardiopulmonary resuscitation or certain other life-sustaining
14-40 procedures designated by the board from a person in accordance with
14-41 this subchapter [chapter] and rules adopted under this subchapter
14-42 [chapter] is not in violation of any other licensing or regulatory
14-43 laws or rules of this state and is not subject to any disciplinary
14-44 action or sanction by any licensing or regulatory agency of this
14-45 state as a result of that action.
14-46 Sec. 166.097 [674.017]. LIMITATION ON LIABILITY FOR FAILURE
14-47 TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care
14-48 professional or health care facility or entity that has no actual
14-49 knowledge of an out-of-hospital DNR order is not civilly or
14-50 criminally liable for failing to act in accordance with the order.
14-51 (b) A health care professional or health care facility or
14-52 entity is not civilly or criminally liable for failing to
14-53 effectuate an out-of-hospital DNR order.
14-54 (c) If an attending physician refuses to execute or comply
14-55 with an out-of-hospital DNR order, the physician shall inform the
14-56 person, the legal guardian or qualified relatives of the person, or
14-57 the agent of the person having a durable power of attorney for
14-58 health care and, if the person or another authorized to act on
14-59 behalf of the person so directs, shall make a reasonable effort to
14-60 transfer the person to another physician who is willing to execute
14-61 or comply with an out-of-hospital DNR order.
14-62 Sec. 166.098 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER
14-63 DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not
14-64 commit an offense under Section 22.08, Penal Code, by withholding
14-65 cardiopulmonary resuscitation or certain other life-sustaining
14-66 procedures designated by the board from a person in accordance with
14-67 this subchapter [chapter].
14-68 Sec. 166.099 [674.019]. CRIMINAL PENALTY; PROSECUTION.
14-69 (a) A person commits an offense if the person intentionally
15-1 conceals, cancels, defaces, obliterates, or damages another
15-2 person's out-of-hospital DNR order or DNR identification device
15-3 without that person's consent or the consent of the person or
15-4 persons authorized to execute or issue an out-of-hospital DNR order
15-5 on behalf of the person under this subchapter [chapter]. An
15-6 offense under this subsection is a Class A misdemeanor.
15-7 (b) A person is subject to prosecution for criminal homicide
15-8 under Chapter 19, Penal Code, if the person, with the intent to
15-9 cause cardiopulmonary resuscitation or certain other
15-10 life-sustaining procedures designated by the board to be withheld
15-11 from another person contrary to the other person's desires,
15-12 falsifies or forges an out-of-hospital DNR order or intentionally
15-13 conceals or withholds personal knowledge of a revocation and
15-14 thereby directly causes cardiopulmonary resuscitation and certain
15-15 other life-sustaining procedures designated by the board to be
15-16 withheld from the other person with the result that the other
15-17 person's death is hastened.
15-18 Sec. 166.100 [674.020]. PREGNANT PERSONS. A person may not
15-19 withhold cardiopulmonary resuscitation or certain other
15-20 life-sustaining procedures designated by the board under this
15-21 subchapter [chapter] from a person known by the responding health
15-22 care professionals to be pregnant.
15-23 Sec. 166.101 [674.021]. MERCY KILLING NOT CONDONED. This
15-24 subchapter [chapter] does not condone, authorize, or approve mercy
15-25 killing or permit an affirmative or deliberate act or omission to
15-26 end life except to permit the natural process of dying as provided
15-27 by this subchapter [chapter].
15-28 Sec. 166.102 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT
15-29 AFFECTED. This subchapter [chapter] does not impair or supersede
15-30 any legal right or responsibility a person may have under a
15-31 constitution, other statute, regulation, or court decision to
15-32 effect the withholding of cardiopulmonary resuscitation or certain
15-33 other life-sustaining procedures designated by the board.
15-34 Sec. 166.103 [674.023]. DUTIES OF DEPARTMENT AND BOARD.
15-35 (a) The board shall, on the recommendation of the department,
15-36 adopt all reasonable and necessary rules to carry out the purposes
15-37 of this subchapter [chapter], including rules:
15-38 (1) adopting a statewide out-of-hospital DNR order
15-39 protocol that sets out standard procedures for the withholding of
15-40 cardiopulmonary resuscitation and certain other life-sustaining
15-41 procedures by health care professionals acting in out-of-hospital
15-42 settings;
15-43 (2) designating life-sustaining procedures that may be
15-44 included in an out-of-hospital DNR order, including all procedures
15-45 listed in Sections 166.081(6)(A)(i) through (vi) [Section
15-46 674.001(14)(A)(i) through (vi)]; and
15-47 (3) governing recordkeeping in circumstances in which
15-48 an out-of-hospital DNR order or DNR identification device is
15-49 encountered by responding health care professionals.
15-50 (b) The rules adopted by the board under Subsection (a) are
15-51 not effective until approved by the Texas State Board of Medical
15-52 Examiners.
15-53 (c) Local emergency medical services authorities may adopt
15-54 local out-of-hospital DNR order protocols if the local protocols do
15-55 not conflict with the statewide out-of-hospital DNR order protocol
15-56 adopted by the board.
15-57 (d) The board by rule shall specify a distinctive standard
15-58 design for a necklace and a bracelet DNR identification device that
15-59 signifies, when worn by a person, that the possessor has executed
15-60 or issued a valid out-of-hospital DNR order under this subchapter
15-61 [chapter] or is a person for whom a valid out-of-hospital DNR order
15-62 has been executed or issued.
15-63 (e) The department shall report to the board from time to
15-64 time regarding issues identified in emergency medical services
15-65 responses in which an out-of-hospital DNR order or DNR
15-66 identification device is encountered. The report may contain
15-67 recommendations to the board for necessary modifications to the
15-68 form of the standard out-of-hospital DNR order or the designated
15-69 life-sustaining procedures listed in the standard out-of-hospital
16-1 DNR order, the statewide out-of-hospital DNR order protocol, or the
16-2 DNR identification devices.
16-3 Sec. 166.104 [674.024]. RECOGNITION OF OUT-OF-HOSPITAL DNR
16-4 ORDER EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR
16-5 order executed, issued, or authorized in another state or a
16-6 territory or possession of the United States in compliance with the
16-7 law of that jurisdiction is effective for purposes of this
16-8 subchapter [chapter].
16-9 SECTION 1.05. Chapter 135, Civil Practice and Remedies Code,
16-10 is transferred to Subtitle H, Title 2, Health and Safety Code, is
16-11 redesignated as Subchapter D, Chapter 166, Health and Safety Code,
16-12 and is amended to read as follows:
16-13 SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR
16-14 HEALTH CARE
16-15 Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter
16-16 [chapter]:
16-17 (1) "Adult" means a person 18 years of age or older or
16-18 a person under 18 years of age who has had the disabilities of
16-19 minority removed.
16-20 (2) "Agent" means an adult to whom authority to make
16-21 health care decisions is delegated under a durable power of
16-22 attorney for health care.
16-23 (3) ["Attending physician" means the physician,
16-24 selected by or assigned to a patient, who has primary
16-25 responsibility for the treatment and care of the patient.]
16-26 [(4) "Capacity to make health care decisions" means
16-27 the ability to understand and appreciate the nature and
16-28 consequences of a health care decision, including the significant
16-29 benefits and harms of and reasonable alternatives to any proposed
16-30 health care.]
16-31 [(5) "Durable power of attorney for health care" means
16-32 a document delegating to an agent the authority to make health care
16-33 decisions as provided by this chapter.]
16-34 [(6) "Health care decision" means consent, refusal to
16-35 consent, or withdrawal of consent to health care, treatment,
16-36 service, or procedure to maintain, diagnose, or treat an
16-37 individual's physical or mental condition.]
16-38 [(7)] "Health care provider" means an individual or
16-39 facility licensed, certified, or otherwise authorized to administer
16-40 health care, for profit or otherwise, in the ordinary course of
16-41 business or professional practice and includes a physician.
16-42 (4) [(8) "Physician" means:]
16-43 [(A) a physician licensed by the Texas State
16-44 Board of Medical Examiners; or]
16-45 [(B) a physician with proper credentials who
16-46 holds a commission in a branch of the armed services of the United
16-47 States and who is serving on active duty in this state.]
16-48 [(9)] "Principal" means an adult who has executed a
16-49 durable power of attorney for health care.
16-50 (5) [(10)] "Residential care provider" means an
16-51 individual or facility licensed, certified, or otherwise authorized
16-52 to operate, for profit or otherwise, a residential care home.
16-53 Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY.
16-54 (a) Subject to this subchapter [chapter] or any express limitation
16-55 on the authority of the agent contained in the durable power of
16-56 attorney for health care, the agent may make any health care
16-57 decision on the principal's behalf that the principal could make if
16-58 the principal were competent [but for the principal's lack of
16-59 capacity to make health care decisions].
16-60 (b) An agent may exercise authority only if the principal's
16-61 attending physician certifies in writing and files the
16-62 certification in the principal's medical record that, based on the
16-63 attending physician's reasonable medical judgment, the principal is
16-64 incompetent [lacks capacity to make health care decisions].
16-65 (c) Notwithstanding any other provisions of this subchapter
16-66 [chapter], treatment may not be given to or withheld from the
16-67 principal if the principal objects regardless of whether, at the
16-68 time of the objection:
16-69 (1) a durable power of attorney for health care is in
17-1 effect; or
17-2 (2) the principal is competent [has the capacity to
17-3 make health care decisions].
17-4 (d) The principal's attending physician shall make
17-5 reasonable efforts to inform the principal of any proposed
17-6 treatment or of any proposal to withdraw or withhold treatment
17-7 before implementing an agent's directive.
17-8 (e) After consultation with the attending physician and
17-9 other health care providers, the agent shall make a health care
17-10 decision:
17-11 (1) according to the agent's knowledge of the
17-12 principal's wishes, including the principal's religious and moral
17-13 beliefs; or
17-14 (2) if the agent does not know the principal's wishes,
17-15 according to the agent's assessment of the principal's best
17-16 interests.
17-17 (f) Notwithstanding any other provision of this subchapter
17-18 [chapter], an agent may not consent to:
17-19 (1) voluntary inpatient mental health services;
17-20 (2) convulsive treatment;
17-21 (3) psychosurgery;
17-22 (4) abortion; or
17-23 (5) neglect of the principal through the omission of
17-24 care primarily intended to provide for the comfort of the
17-25 principal.
17-26 (g) The power of attorney is effective indefinitely on
17-27 execution as provided by this subchapter [chapter] and delivery of
17-28 the document to the agent, unless it is revoked as provided by this
17-29 subchapter [chapter] or the principal becomes competent [regains
17-30 the capacity to make health care decisions]. If the durable power
17-31 of attorney includes an expiration date and on that date the
17-32 principal becomes incompetent [lacks the capacity to make health
17-33 care decisions], the power of attorney continues to be effective
17-34 until the principal becomes competent [regains the capacity to make
17-35 health care decisions] unless it is revoked as provided by this
17-36 subchapter [chapter].
17-37 Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE
17-38 AUTHORITY OF AGENT. A person may not exercise the authority of an
17-39 agent while the person serves as:
17-40 (1) the principal's health care provider;
17-41 (2) an employee of the principal's health care
17-42 provider unless the person is a relative of the principal;
17-43 (3) the principal's residential care provider; or
17-44 (4) an employee of the principal's residential care
17-45 provider unless the person is a relative of the principal.
17-46 Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The
17-47 durable power of attorney for health care must be signed by the
17-48 principal in the presence of at least two [or more] subscribing
17-49 witnesses.
17-50 (b) A witness must possess the qualifications and be subject
17-51 to the restrictions provided by Section 166.003. In addition, a
17-52 witness may not, at the time of execution, be[:]
17-53 [(1)] the agent[;]
17-54 [(2) the principal's health or residential care
17-55 provider or the provider's employee;]
17-56 [(3) the principal's spouse or heir;]
17-57 [(4) a person entitled to any part of the estate of
17-58 the principal on the death of the principal under a will or deed in
17-59 existence or by operation of law; or]
17-60 [(5) any other person who has any claim against the
17-61 estate] of the principal.
17-62 (c) The witnesses shall affirm that, at the time the durable
17-63 power of attorney for health care was signed, the principal:
17-64 (1) appeared to be competent [of sound mind to make a
17-65 health care decision];
17-66 (2) stated in the witness's presence that the
17-67 principal was aware of the nature of the durable power of attorney
17-68 for health care and that the principal was signing the document
17-69 voluntarily and free from any duress; and
18-1 (3) requested that the witness serve as a witness to
18-2 the principal's execution of the document.
18-3 (d) If the principal is physically unable to sign, another
18-4 person may sign the durable power of attorney for health care with
18-5 the principal's name in the principal's presence and at the
18-6 principal's express direction.
18-7 Sec. 166.155 [135.005]. REVOCATION. (a) A durable power of
18-8 attorney for health care is revoked by:
18-9 (1) oral or written notification at any time by the
18-10 principal to the agent or a licensed or certified health or
18-11 residential care provider or by any other act evidencing a specific
18-12 intent to revoke the power, without regard to whether the principal
18-13 is competent or the principal's mental state[, competency, or
18-14 capacity to make health care decisions];
18-15 (2) execution by the principal of a subsequent durable
18-16 power of attorney for health care; or
18-17 (3) the divorce of the principal and spouse, if the
18-18 spouse is the principal's agent.
18-19 (b) A principal's licensed or certified health or
18-20 residential care provider who is informed of or provided with a
18-21 revocation of a durable power of attorney for health care shall
18-22 immediately record the revocation in the principal's medical record
18-23 and give notice of the revocation to the agent and any known health
18-24 and residential care providers currently responsible for the
18-25 principal's care.
18-26 Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On
18-27 motion filed in connection with a petition for appointment of a
18-28 guardian or, if a guardian has been appointed, on petition of the
18-29 guardian, a probate court shall determine whether to suspend or
18-30 revoke the authority of the agent.
18-31 (b) The court shall consider the preferences of the
18-32 principal as expressed in the durable power of attorney for health
18-33 care.
18-34 (c) During the pendency of the court's determination under
18-35 Subsection (a), the guardian has the sole authority to make any
18-36 health care decisions unless the court orders otherwise. If a
18-37 guardian has not been appointed, the agent has the authority to
18-38 make any health care decisions unless the court orders otherwise.
18-39 (d) A person, including any attending physician or health or
18-40 residential care provider, who does not have actual knowledge of
18-41 the appointment of a guardian or an order of the court granting
18-42 authority to someone other than the agent to make health care
18-43 decisions is not subject to criminal or civil liability and has not
18-44 engaged in unprofessional conduct for implementing an agent's
18-45 health care decision.
18-46 Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION.
18-47 Subject to any limitations in the durable power of attorney for
18-48 health care, an agent may, for the purpose of making a health care
18-49 decision:
18-50 (1) request, review, and receive any information, oral
18-51 or written, regarding the principal's physical or mental health,
18-52 including medical and hospital records;
18-53 (2) execute a release or other document required to
18-54 obtain the information; and
18-55 (3) consent to the disclosure of the information.
18-56 Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE
18-57 PROVIDER. (a) A principal's health or residential care provider
18-58 and an employee of the provider who knows of the existence of the
18-59 principal's durable power of attorney for health care shall follow
18-60 a directive of the principal's agent to the extent it is consistent
18-61 with the desires of the principal, this subchapter [chapter], and
18-62 the durable power of attorney for health care.
18-63 (b) The attending physician does not have a duty to verify
18-64 that the agent's directive is consistent with the principal's
18-65 wishes or religious or moral beliefs.
18-66 (c) A principal's health or residential care provider who
18-67 finds it impossible to follow a directive by the agent because of a
18-68 conflict with this subchapter [chapter] or the durable power of
18-69 attorney for health care shall inform the agent as soon as is
19-1 reasonably possible. The agent may select another attending
19-2 physician.
19-3 (d) This subchapter [chapter] may not be construed to
19-4 require a health or residential care provider who is not a
19-5 physician to act in a manner contrary to a physician's order.
19-6 Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION
19-7 OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. A health or
19-8 residential care provider, health care service plan, insurer
19-9 issuing disability insurance, self-insured employee benefit plan,
19-10 or nonprofit hospital service plan may not:
19-11 (1) charge a person a different rate solely because
19-12 the person has executed a durable power of attorney for health
19-13 care;
19-14 (2) require a person to execute a durable power of
19-15 attorney for health care before:
19-16 (A) admitting the person to a hospital, nursing
19-17 home, or residential care home;
19-18 (B) insuring the person; or
19-19 (C) allowing the person to receive health or
19-20 residential care; or
19-21 (3) refuse health or residential care to a person
19-22 solely because the person has executed a durable power of attorney
19-23 for health care.
19-24 Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An
19-25 agent is not subject to criminal or civil liability for a health
19-26 care decision if the decision is made in good faith under the terms
19-27 of the durable power of attorney for health care and the provisions
19-28 of this subchapter [chapter].
19-29 (b) An attending physician, health or residential care
19-30 provider, or a person acting as an agent for or under the
19-31 physician's or provider's control is not subject to criminal or
19-32 civil liability and has not engaged in unprofessional conduct for
19-33 an act or omission if the act or omission:
19-34 (1) is done in good faith under the terms of the
19-35 durable power of attorney for health care, the directives of the
19-36 agent, and the provisions of this subchapter [chapter]; and
19-37 (2) does not constitute a failure to exercise due care
19-38 in the provision of health care services.
19-39 (c) An attending physician, health or residential care
19-40 provider, or person acting as an agent for or under the physician's
19-41 or provider's control has not engaged in unprofessional conduct
19-42 for:
19-43 (1) failure to act as required by the directive of an
19-44 agent or a durable power of attorney for health care if the
19-45 physician, provider, or person was not provided with a copy of the
19-46 durable power of attorney for health care or had no knowledge of a
19-47 directive; or
19-48 (2) acting as required by an agent's directive if the
19-49 durable power of attorney for health care has expired or been
19-50 revoked but the physician, provider, or person does not have
19-51 knowledge of the expiration or revocation.
19-52 Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS.
19-53 Liability for the cost of health care provided as a result of the
19-54 agent's decision is the same as if the health care were provided as
19-55 a result of the principal's decision.
19-56 Sec. 166.162 [135.012]. NATURAL DEATH LAW [ACT]. To the
19-57 extent that a durable power of attorney for health care conflicts
19-58 with a directive or treatment decision executed under Subchapter B
19-59 [the Natural Death Act (Chapter 672, Health and Safety Code)], the
19-60 instrument executed later in time controls. A physician who
19-61 withholds or withdraws life-sustaining procedures from a principal
19-62 with a terminal condition as required by an agent's directive is
19-63 not required to comply with Subchapter B [the Natural Death Act].
19-64 Sec. 166.163 [135.013]. ENFORCEABILITY OF DURABLE POWER OF
19-65 ATTORNEY EXECUTED IN ANOTHER JURISDICTION. This subchapter
19-66 [chapter] does not limit the enforceability of a durable power of
19-67 attorney for health care or similar instrument executed in another
19-68 state or jurisdiction if the instrument complies with the law of
19-69 the state or jurisdiction.
20-1 Sec. 166.164 [135.014]. DISCLOSURE STATEMENT. A durable
20-2 power of attorney for health care is not effective unless the
20-3 principal, before executing the durable power of attorney for
20-4 health care, signs a statement that the principal has received a
20-5 disclosure statement and has read and understood its contents.
20-6 Sec. 166.165 [135.015]. FORM OF DISCLOSURE STATEMENT. The
20-7 disclosure statement must be in substantially the following form:
20-8 INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR
20-9 HEALTH CARE
20-10 THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING
20-11 THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
20-12 Except to the extent you state otherwise, this
20-13 document gives the person you name as your agent the
20-14 authority to make any and all health care decisions for
20-15 you in accordance with your wishes, including your
20-16 religious and moral beliefs, when you are no longer
20-17 capable of making them yourself. Because "health care"
20-18 means any treatment, service, or procedure to maintain,
20-19 diagnose, or treat your physical or mental condition,
20-20 your agent has the power to make a broad range of
20-21 health care decisions for you. Your agent may consent,
20-22 refuse to consent, or withdraw consent to medical
20-23 treatment and may make decisions about withdrawing or
20-24 withholding life-sustaining treatment. Your agent may
20-25 not consent to voluntary inpatient mental health
20-26 services, convulsive treatment, psychosurgery, or
20-27 abortion. A physician must comply with your agent's
20-28 instructions or allow you to be transferred to another
20-29 physician.
20-30 Your agent's authority begins when your doctor
20-31 certifies that you lack the capacity to make health
20-32 care decisions.
20-33 Your agent is obligated to follow your
20-34 instructions when making decisions on your behalf.
20-35 Unless you state otherwise, your agent has the same
20-36 authority to make decisions about your health care as
20-37 you would have had.
20-38 It is important that you discuss this document
20-39 with your physician or other health care provider
20-40 before you sign it to make sure that you understand the
20-41 nature and range of decisions that may be made on your
20-42 behalf. If you do not have a physician, you should
20-43 talk with someone else who is knowledgeable about these
20-44 issues and can answer your questions. You do not need
20-45 a lawyer's assistance to complete this document, but if
20-46 there is anything in this document that you do not
20-47 understand, you should ask a lawyer to explain it to
20-48 you.
20-49 The person you appoint as agent should be someone
20-50 you know and trust. The person must be 18 years of age
20-51 or older or a person under 18 years of age who has had
20-52 the disabilities of minority removed. If you appoint
20-53 your health or residential care provider (e.g., your
20-54 physician or an employee of a home health agency,
20-55 hospital, nursing home, or residential care home, other
20-56 than a relative), that person has to choose between
20-57 acting as your agent or as your health or residential
20-58 care provider; the law does not permit a person to do
20-59 both at the same time.
20-60 You should inform the person you appoint that you
20-61 want the person to be your health care agent. You
20-62 should discuss this document with your agent and your
20-63 physician and give each a signed copy. You should
20-64 indicate on the document itself the people and
20-65 institutions who have signed copies. Your agent is not
20-66 liable for health care decisions made in good faith on
20-67 your behalf.
20-68 Even after you have signed this document, you
20-69 have the right to make health care decisions for
21-1 yourself as long as you are able to do so and treatment
21-2 cannot be given to you or stopped over your objection.
21-3 You have the right to revoke the authority granted to
21-4 your agent by informing your agent or your health or
21-5 residential care provider orally or in writing or by
21-6 your execution of a subsequent durable power of
21-7 attorney for health care. Unless you state otherwise,
21-8 your appointment of a spouse dissolves on divorce.
21-9 This document may not be changed or modified. If
21-10 you want to make changes in the document, you must make
21-11 an entirely new one.
21-12 You may wish to designate an alternate agent in
21-13 the event that your agent is unwilling, unable, or
21-14 ineligible to act as your agent. Any alternate agent
21-15 you designate has the same authority to make health
21-16 care decisions for you.
21-17 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED
21-18 IN THE PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES.
21-19 THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:
21-20 (1) the person you have designated as your
21-21 agent;
21-22 (2) a person related to you by blood or
21-23 marriage [your health or residential care provider or
21-24 an employee of your health or residential care
21-25 provider];
21-26 (3) a person entitled to any part of your
21-27 estate after your death under a will or codicil
21-28 executed by you or by operation of law [your spouse];
21-29 (4) your attending physician [lawful
21-30 heirs or beneficiaries named in your will or a deed];
21-31 [or]
21-32 (5) an employee of the attending
21-33 physician;
21-34 (6) an employee of a health care facility
21-35 in which you are a patient if the employee is providing
21-36 direct patient care to you or is an officer, director,
21-37 partner, or business office employee of the health care
21-38 facility or of any parent organization of the health
21-39 care facility;
21-40 (7) a patient in a health care facility in
21-41 which you are a patient; or
21-42 (8) a person who, at the time this power
21-43 of attorney is executed, has a claim against any part
21-44 of your estate after your death [creditors or persons
21-45 who have a claim against you].
21-46 Sec. 166.166 [135.016]. FORM OF DURABLE POWER OF ATTORNEY.
21-47 The durable power of attorney for health care must be in
21-48 substantially the following form:
21-49 DURABLE POWER OF ATTORNEY FOR HEALTH CARE
21-50 DESIGNATION OF HEALTH CARE AGENT.
21-51 I,_____________________________(insert your name)
21-52 appoint:
21-53 Name:____________________________________________
21-54 Address:_________________________________________
21-55 Phone________________________________
21-56 as my agent to make any and all health care decisions
21-57 for me, except to the extent I state otherwise in this
21-58 document. This durable power of attorney for health
21-59 care takes effect if I become unable to make my own
21-60 health care decisions and this fact is certified in
21-61 writing by my physician.
21-62 LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY
21-63 AGENT ARE AS FOLLOWS:___________________________
21-64 _______________________________________________________
21-65 DESIGNATION OF ALTERNATE AGENT.
21-66 (You are not required to designate an alternate
21-67 agent but you may do so. An alternate agent may make
21-68 the same health care decisions as the designated agent
21-69 if the designated agent is unable or unwilling to act
22-1 as your agent. If the agent designated is your spouse,
22-2 the designation is automatically revoked by law if your
22-3 marriage is dissolved.)
22-4 If the person designated as my agent is unable or
22-5 unwilling to make health care decisions for me, I
22-6 designate the following persons to serve as my agent to
22-7 make health care decisions for me as authorized by this
22-8 document, who serve in the following order:
22-9 A. First Alternate Agent
22-10 Name:________________________________________
22-11 Address:_____________________________________
22-12 Phone____________________________
22-13 B. Second Alternate Agent
22-14 Name:________________________________________
22-15 Address:_____________________________________
22-16 Phone____________________________
22-17 The original of this document is kept
22-18 at_____________________________________________________
22-19 _______________________________________________________
22-20 _______________________________________________________
22-21 The following individuals or institutions have signed
22-22 copies:
22-23 Name:____________________________________________
22-24 Address:_________________________________________
22-25 _________________________________________________
22-26 Name:____________________________________________
22-27 Address:_________________________________________
22-28 _________________________________________________
22-29 DURATION.
22-30 I understand that this power of attorney exists
22-31 indefinitely from the date I execute this document
22-32 unless I establish a shorter time or revoke the power
22-33 of attorney. If I am unable to make health care
22-34 decisions for myself when this power of attorney
22-35 expires, the authority I have granted my agent
22-36 continues to exist until the time I become able to make
22-37 health care decisions for myself.
22-38 (IF APPLICABLE) This power of attorney ends on
22-39 the following date:________________
22-40 PRIOR DESIGNATIONS REVOKED.
22-41 I revoke any prior durable power of attorney for
22-42 health care.
22-43 ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
22-44 I have been provided with a disclosure statement
22-45 explaining the effect of this document. I have read
22-46 and understand that information contained in the
22-47 disclosure statement.
22-48 (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
22-49 I sign my name to this durable power of attorney for
22-50 health care on _____ day of ______________ 19 _________
22-51 at_________________________________________________
22-52 (City and State)
22-53 ___________________________________________________
22-54 (Signature)
22-55 ___________________________________________________
22-56 (Print Name)
22-57 STATEMENT OF WITNESSES.
22-58 I declare under penalty of perjury that the
22-59 principal has identified himself or herself to me, that
22-60 the principal signed or acknowledged this durable power
22-61 of attorney in my presence, that I believe the
22-62 principal to be of sound mind, that the principal has
22-63 affirmed that the principal is aware of the nature of
22-64 the document and is signing it voluntarily and free
22-65 from duress, that the principal requested that I serve
22-66 as witness to the principal's execution of this
22-67 document, that I am not the person appointed as agent
22-68 by this document, and that I am not related to the
22-69 principal by blood or marriage, I would not be entitled
23-1 to any portion of the principal's estate on the
23-2 principal's death, I am not the attending physician of
23-3 the principal or an employee of the attending
23-4 physician, I am not a patient in the health care
23-5 facility in which the principal is a patient, and I
23-6 have no claim against any portion of the principal's
23-7 estate on the principal's death. Furthermore, if I am
23-8 an employee of a health care facility in which the
23-9 principal is a patient, I am not involved in providing
23-10 direct patient care to the principal and am not an
23-11 officer, director, partner, or business office
23-12 employee of the health care facility or of any
23-13 parent organization of the health care facility [a
23-14 provider of health or residential care, an employee of
23-15 a provider of health or residential care, the operator
23-16 of a community care facility, or an employee of an
23-17 operator of a health care facility.]
23-18 [I declare that I am not related to the principal
23-19 by blood, marriage, or adoption and that to the best of
23-20 my knowledge I am not entitled to any part of the
23-21 estate of the principal on the death of the principal
23-22 under a will or by operation of law].
23-23 Witness Signature:_______________
23-24 Print Name:_____________________Date:____________
23-25 Address:_______________________________________________
23-26 Witness Signature:_______________
23-27 Print Name:_____________________Date:____________
23-28 Address:_______________________________________________
23-29 Sec. 166.167 [135.017]. CIVIL ACTION. (a) A person who is
23-30 a near relative of the principal or a responsible adult who is
23-31 directly interested in the principal, including a guardian, social
23-32 worker, physician, or clergyman, may bring an action in district
23-33 court to request that the durable power of attorney for health care
23-34 be revoked because the principal, at the time the durable power of
23-35 attorney for health care was signed:
23-36 (1) was not competent [of sound mind to make a health
23-37 care decision]; or
23-38 (2) was under duress, fraud, or undue influence.
23-39 (b) The action may be brought in the county of the
23-40 principal's residence or the residence of the person bringing the
23-41 action.
23-42 (c) During the pendency of the action, the authority of the
23-43 agent to make health care decisions continues in effect unless the
23-44 district court orders otherwise.
23-45 Sec. 166.168 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT
23-46 AFFECTED. This subchapter [chapter] does not limit or impair any
23-47 legal right or responsibility that any person, including a
23-48 physician or health or residential care provider, may have to make
23-49 or implement health care decisions on behalf of a person.
23-50 ARTICLE 2. CONFORMING AMENDMENTS
23-51 SECTION 2.01. Subsection (a), Section 313.003, Health and
23-52 Safety Code, is amended to read as follows:
23-53 (a) This chapter does not apply to:
23-54 (1) a decision to withhold or withdraw life-sustaining
23-55 treatment from qualified terminal patients under Subchapter B,
23-56 Chapter 166 [the terms of Chapter 672];
23-57 (2) a health care decision made under a durable power
23-58 of attorney for health care under Subchapter D, Chapter 166
23-59 [Chapter 135, Civil Practice and Remedies Code], or under Chapter
23-60 XII, Texas Probate Code;
23-61 (3) consent to medical treatment of minors under
23-62 Chapter 32 [35], Family Code;
23-63 (4) consent for emergency care under Chapter 773;
23-64 (5) hospital patient transfers under Chapter 241; or
23-65 (6) a patient's legal guardian who has the authority
23-66 to make a decision regarding the patient's medical treatment.
23-67 ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
23-68 SECTION 3.01. This Act takes effect January 1, 1998.
23-69 SECTION 3.02. The change in law made by this Act does not
24-1 affect the validity of a document executed under Chapter 672 or
24-2 674, Health and Safety Code, or Chapter 135, Civil Practice and
24-3 Remedies Code, before the effective date of this Act. A document
24-4 executed before the effective date of this Act is governed by the
24-5 law in effect on the date the document was executed, and that law
24-6 continues in effect for that purpose.
24-7 SECTION 3.03. (a) The change in law made by this Act
24-8 applies only to the punishment for an offense committed on or after
24-9 the effective date of this Act. For purposes of this section, an
24-10 offense is committed before the effective date of this Act if any
24-11 element of the offense occurs before the effective date.
24-12 (b) An offense committed before the effective date of this
24-13 Act is covered by the law in effect when the offense was committed,
24-14 and the former law is continued in effect for that purpose.
24-15 SECTION 3.04. The importance of this legislation and the
24-16 crowded condition of the calendars in both houses create an
24-17 emergency and an imperative public necessity that the
24-18 constitutional rule requiring bills to be read on three several
24-19 days in each house be suspended, and this rule is hereby suspended.
24-20 * * * * *