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A BILL TO BE ENTITLED
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AN ACT
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relating to the presumption of validity for an advance directive |
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and permissible forms of a medical power of attorney. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter A, Chapter 166, Health and Safety |
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Code, is amended by adding Section 166.012 to read as follows: |
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Sec. 166.012. PRESUMPTION OF VALIDITY; LIMITATION OF |
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LIABILITY. (a) In the absence of actual knowledge to the contrary, |
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a health care provider or residential care provider, as those terms |
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are defined by Section 166.151, or other person acting as an agent |
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for or under the provider's control may presume that an advance |
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directive is valid under this chapter and has been validly executed |
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by a person authorized to execute the advance directive. |
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(b) The health care provider, residential care provider, or |
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other person described by Subsection (a) is not civilly or |
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criminally liable or subject to review or disciplinary action by |
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the appropriate licensing authority for following an advance |
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directive or instructions of an advance directive that the provider |
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or person presumes is valid under this chapter. |
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SECTION 2. Subchapter D, Chapter 166, Health and Safety |
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Code, is amended by adding Section 166.163 to read as follows: |
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Sec. 166.163. PERMISSIBLE FORMS OF MEDICAL POWER OF |
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ATTORNEY. (a) A valid medical power of attorney must be in: |
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(1) a form designated by the executive commissioner in |
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accordance with Subsection (b), provided the document is executed |
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in the manner required by Section 166.154; or |
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(2) the statutory form prescribed by Section 166.164. |
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(b) The executive commissioner by rule shall review and |
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designate documents to be recognized in this state as a written and |
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validly executed medical power of attorney. Any document designated |
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by the executive commissioner must: |
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(1) be promulgated by a national nonprofit |
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organization or the Commission on Law and Aging, American Bar |
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Association; |
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(2) be written in plain language; |
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(3) allow a principal to provide a health care |
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instruction; |
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(4) designate a primary agent who is at least 18 years |
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of age to make health care decisions for the principal when the |
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principal lacks the capacity to make the decisions; |
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(5) allow the principal to name an alternate agent who |
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is at least 18 years of age to make health care decisions for the |
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principal if the primary agent is unable or unwilling to make the |
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decisions; |
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(6) allow the principal to specify or limit the health |
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care decisions an agent may make for the principal; |
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(7) require the principal to: |
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(A) sign and date the medical power of attorney |
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in the presence of two witnesses who qualify under Section 166.003, |
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at least one of whom qualifies under Section 166.003(2); or |
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(B) sign and date the medical power of attorney |
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and have the signature acknowledged before a notary public; and |
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(8) be accepted as a validly executed medical power of |
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attorney in at least 40 other states of the United States. |
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(c) The commission shall post on the commission's Internet |
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website a link to each document designated under Subsection (b). |
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SECTION 3. Section 166.164, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 166.164. STATUTORY [FORM OF] MEDICAL POWER OF ATTORNEY |
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FORM. A [The] medical power of attorney may [must] be in |
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[substantially] the following form: |
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MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT. |
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I, __________ (insert your name) appoint: |
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Name:___________________________________________________________ |
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Address:________________________________________________________ |
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Phone: |
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as my agent to make any and all health care decisions for me, |
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except to the extent I state otherwise in this document. This |
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medical power of attorney takes effect if I become unable to make my |
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own health care decisions and this fact is certified in writing by |
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my physician. |
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LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE |
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AS FOLLOWS:_____________________________________________________ |
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________________________________________________________________ |
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DESIGNATION OF ALTERNATE AGENT. |
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(You are not required to designate an alternate agent but you |
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may do so. An alternate agent may make the same health care |
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decisions as the designated agent if the designated agent is unable |
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or unwilling to act as your agent. If the agent designated is your |
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spouse, the designation is automatically revoked by law if your |
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marriage is dissolved, annulled, or declared void unless this |
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document provides otherwise.) |
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If the person designated as my agent is unable or unwilling to |
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make health care decisions for me, I designate the following |
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persons to serve as my agent to make health care decisions for me as |
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authorized by this document, who serve in the following order: |
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A. First Alternate Agent |
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Name:________________________________________________ |
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Address:_____________________________________________ |
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Phone: |
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B. Second Alternate Agent |
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Name:________________________________________________ |
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Address:_____________________________________________ |
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Phone: |
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The original of this document is kept at: |
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_____________________________________________________ |
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_____________________________________________________ |
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_____________________________________________________ |
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The following individuals or institutions have signed |
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copies: |
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Name:________________________________________________ |
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Address:_____________________________________________ |
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_____________________________________________________ |
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Name:________________________________________________ |
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Address:_____________________________________________ |
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_____________________________________________________ |
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DURATION. |
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I understand that this power of attorney exists indefinitely |
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from the date I execute this document unless I establish a shorter |
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time or revoke the power of attorney. If I am unable to make health |
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care decisions for myself when this power of attorney expires, the |
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authority I have granted my agent continues to exist until the time |
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I become able to make health care decisions for myself. |
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(IF APPLICABLE) This power of attorney ends on the following |
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date: __________ |
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PRIOR DESIGNATIONS REVOKED. |
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I revoke any prior medical power of attorney. |
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DISCLOSURE STATEMENT. |
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THIS MEDICAL POWER OF ATTORNEY IS AN IMPORTANT LEGAL |
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DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE |
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IMPORTANT FACTS: |
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Except to the extent you state otherwise, this document gives |
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the person you name as your agent the authority to make any and all |
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health care decisions for you in accordance with your wishes, |
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including your religious and moral beliefs, when you are unable to |
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make the decisions for yourself. Because "health care" means any |
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treatment, service, or procedure to maintain, diagnose, or treat |
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your physical or mental condition, your agent has the power to make |
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a broad range of health care decisions for you. Your agent may |
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consent, refuse to consent, or withdraw consent to medical |
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treatment and may make decisions about withdrawing or withholding |
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life-sustaining treatment. Your agent may not consent to |
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voluntary inpatient mental health services, convulsive treatment, |
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psychosurgery, or abortion. A physician must comply with your |
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agent's instructions or allow you to be transferred to another |
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physician. |
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Your agent's authority is effective when your doctor |
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certifies that you lack the competence to make health care |
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decisions. |
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Your agent is obligated to follow your instructions when |
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making decisions on your behalf. Unless you state otherwise, your |
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agent has the same authority to make decisions about your health |
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care as you would have if you were able to make health care |
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decisions for yourself. |
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It is important that you discuss this document with your |
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physician or other health care provider before you sign the |
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document to ensure that you understand the nature and range of |
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decisions that may be made on your behalf. If you do not have a |
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physician, you should talk with someone else who is knowledgeable |
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about these issues and can answer your questions. You do not need a |
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lawyer's assistance to complete this document, but if there is |
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anything in this document that you do not understand, you should ask |
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a lawyer to explain it to you. |
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The person you appoint as agent should be someone you know and |
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trust. The person must be 18 years of age or older or a person |
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under 18 years of age who has had the disabilities of minority |
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removed. If you appoint your health or residential care provider |
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(e.g., your physician or an employee of a home health agency, |
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hospital, nursing facility, or residential care facility, other |
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than a relative), that person has to choose between acting as your |
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agent or as your health or residential care provider; the law does |
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not allow a person to serve as both at the same time. |
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You should inform the person you appoint that you want the |
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person to be your health care agent. You should discuss this |
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document with your agent and your physician and give each a signed |
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copy. You should indicate on the document itself the people and |
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institutions that you intend to have signed copies. Your agent is |
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not liable for health care decisions made in good faith on your |
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behalf. |
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Once you have signed this document, you have the right to make |
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health care decisions for yourself as long as you are able to make |
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those decisions, and treatment cannot be given to you or stopped |
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over your objection. You have the right to revoke the authority |
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granted to your agent by informing your agent or your health or |
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residential care provider orally or in writing or by your execution |
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of a subsequent medical power of attorney. Unless you state |
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otherwise in this document, your appointment of a spouse is revoked |
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if your marriage is dissolved, annulled, or declared void. |
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This document may not be changed or modified. If you want to |
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make changes in this document, you must execute a new medical power |
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of attorney. |
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You may wish to designate an alternate agent in the event that |
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your agent is unwilling, unable, or ineligible to act as your |
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agent. If you designate an alternate agent, the alternate agent |
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has the same authority as the agent to make health care decisions |
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for you. |
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THIS POWER OF ATTORNEY IS NOT VALID UNLESS: |
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(1) YOU SIGN IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED |
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BEFORE A NOTARY PUBLIC; OR |
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(2) YOU SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT |
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WITNESSES. |
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THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES: |
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(1) the person you have designated as your agent; |
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(2) a person related to you by blood or marriage; |
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(3) a person entitled to any part of your estate after |
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your death under a will or codicil executed by you or by operation |
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of law; |
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(4) your attending physician; |
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(5) an employee of your attending physician; |
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(6) an employee of a health care facility in which you |
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are a patient if the employee is providing direct patient care to |
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you or is an officer, director, partner, or business office |
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employee of the health care facility or of any parent organization |
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of the health care facility; or |
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(7) a person who, at the time this medical power of |
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attorney is executed, has a claim against any part of your estate |
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after your death. |
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By signing below, I acknowledge that I have read and |
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understand the information contained in the above disclosure |
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statement. |
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(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY. YOU MAY SIGN |
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IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED BEFORE A NOTARY PUBLIC OR |
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YOU MAY SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES.) |
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SIGNATURE ACKNOWLEDGED BEFORE NOTARY |
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I sign my name to this medical power of attorney on __________ |
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day of __________ (month, year) at |
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_____________________________________________ |
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(City and State) |
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_____________________________________________ |
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(Signature) |
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_____________________________________________ |
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(Print Name) |
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State of Texas |
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County of ________ |
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This instrument was acknowledged before me on __________ (date) by |
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________________ (name of person acknowledging). |
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_____________________________ |
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NOTARY PUBLIC, State of Texas |
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Notary's printed name: |
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_____________________________ |
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My commission expires: |
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_____________________________ |
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OR |
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SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES |
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I sign my name to this medical power of attorney on __________ |
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day of __________ (month, year) at |
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_____________________________________________ |
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(City and State) |
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_____________________________________________ |
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(Signature) |
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_____________________________________________ |
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(Print Name) |
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STATEMENT OF FIRST WITNESS. |
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I am not the person appointed as agent by this document. I am |
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not related to the principal by blood or marriage. I would not be |
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entitled to any portion of the principal's estate on the principal's |
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death. I am not the attending physician of the principal or an |
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employee of the attending physician. I have no claim against any |
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portion of the principal's estate on the principal's |
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death. Furthermore, if I am an employee of a health care facility |
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in which the principal is a patient, I am not involved in providing |
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direct patient care to the principal and am not an officer, |
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director, partner, or business office employee of the health care |
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facility or of any parent organization of the health care facility. |
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Signature:________________________________________________ |
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Print Name:___________________________________ Date:______ |
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Address:__________________________________________________ |
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SIGNATURE OF SECOND WITNESS. |
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Signature:________________________________________________ |
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Print Name:___________________________________ Date:______ |
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Address:__________________________________________________ |
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SECTION 4. Not later than December 1, 2023, the executive |
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commissioner of the Health and Human Services Commission shall by |
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rule designate a document as required by Section 166.163, Health |
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and Safety Code, as added by this Act. |
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SECTION 5. Section 166.163, Health and Safety Code, as |
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added by this Act, and Section 166.164, Health and Safety Code, as |
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amended by this Act, apply only to a medical power of attorney |
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executed on or after the effective date of this Act. A medical |
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power of attorney executed before the effective date of this Act is |
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governed by the law in effect immediately before the effective date |
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of this Act, and the former law is continued in effect for that |
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purpose. |
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SECTION 6. This Act takes effect September 1, 2023. |