Chapter 7-5 Texas Advance Directives Act

• Jurisdiction: United States

7-5 Texas Advance Directives Act

Effective September 1, 1999, the Advance Directives Act consolidated three areas of Texas law that had previously been found in three different statutes operating without any coordination with each other: (1) the Directive to Physicians, Family or Surrogate (formerly the Natural Death Act); (2) the Medical Power of Attorney (formerly the Durable Power of Attorney for Health Care); and (3) the Out-of-Hospital Do-Not-Resuscitate (DNR) Orders.

Before the Advance Directives Act became law in 1999, the three separate statutes, passed in three separate decades, were not well coordinated with each other. Current Texas law on advance directives is uniform and much easier to use.

7-5:1 Directive to Physicians, Family or Surrogate

A competent adult has the right to refuse medical treatment for any reason even if such refusal will lead to an otherwise preventable death. But if the person is in a coma, brain damaged, or for some other reason is unable to communicate his or her wishes, the only way his or her physician, family members or surrogate medical decision maker would know such wishes would be through a "living will" in which the person would have expressed his or her desire to be or not to be kept alive through the use of medical technology if he or she were ever in a terminal condition and were then unable to communicate his or her wishes to decline or not further life-sustaining treatment.

In 1977, Texas became the fifth state of the union to enact "living will" legislation when the legislature enacted the Natural Death Act. In 1999, the legislature re-codified the Act in the Advanced Directives Act, now found in Sections 166.031-166.051 of the Texas Health and Safety Code.

7-5:1.1 Formal Requirements

As an initial matter, we note that although many people still refer to this instrument as a living will, Texas law no longer uses this term. Instead, the Texas Instrument is now called a Directive to Physicians, Family, and Surrogate. The statute simply refers to it as a "directive."

In Texas, any competent adult may execute a directive.²⁵ The declarant must sign the directive in the presence of two competent adult witnesses,²⁶ at least one of whom is not a person involved in his or her health care.²⁷ The witnesses must also sign the instrument.²⁸

In lieu of signing in the presence of witnesses, the declarant may sign the directive and have his or her signature acknowledged before a notary public.²⁹

7-5:1.2 Notice to Physician

A patient who has executed a directive must inform his or her attending physician of that fact.³⁰ If the person is incompetent or otherwise mentally or physically unable to communicate, another person may notify the attending physician of the existence of the directive.³¹ Upon being informed, the attending physician will make that information a part of the declarant's record.³²

7-5:1.3 Form of Written Directive

The Health and Safety Code provides a fill-in-the-blank form for use in creating a directive. We reproduce this form in Appendix 14.

However, the law does not require the use of this form, or of any form provided by a physician, health care facility, or health care professional.³³

7-5:1.4 Issuance of Nonwritten Directive by Competent Adult

Texas law does not require that directives be in writing. Indeed, a competent adult may issue a directive by nonwritten means of communication.³⁴ The declarant must issue the directive in the presence of his or her attending physician and two witnesses who qualify pursuant to Section 166.003 of the Health and Safety Code, at least one of whom must qualify under Section 166.003(2) of the Code (as described in Section 7-5:1.1, above).³⁵ The physician will then include in the patient's medical record a notation to the fact that the patient made a nonwritten directive, and will also record the names of the witnesses to that event.³⁶

7-5:1.5 Institutional Policies

Health care providers in Texas must develop and maintain written policies regarding the implementation of advance directives.³⁷ The policies must include a clear and precise statement of any procedure the health care provider is unwilling or unable to provide or withhold in accordance with a directive.³⁸

As used in this context, the term "health care provider" is very broad. It includes hospitals, licensed nursing facilities, home and community support services agencies, assisted living facilities, and special care facilities.³⁹

Of course, most physicians must accept the institutional policies of the health care facilities in which they practice. It is therefore important for the patient or potential patient to ask the facility to see its policy on advance directives so that the patient may learn...