How do I create an advance healthcare directive in Texas?
1. Types Recognized
Texas recognizes four instruments under Health & Safety Code Ch. 166: (a) Directive to Physicians and Family or Surrogates (§ 166.033 — the living will), (b) Medical Power of Attorney (§ 166.164), (c) Out-of-Hospital Do-Not-Resuscitate Order (§ 166.081 et seq.), and (d) the Texas MOST (Medical Orders for Scope of Treatment).
2. Statutory Form
The Directive to Physicians statutory form is in § 166.033. The Medical Power of Attorney form is in § 166.164. Substantial compliance suffices, but use of the statutory form removes most challenges.
3. Execution Formalities
Declarant must be 18+ (or emancipated) and competent. The Directive to Physicians requires either (a) two qualified adult witnesses OR (b) acknowledgment before a notary public. Witness 1 cannot be: the agent, related by blood/marriage, an heir or beneficiary, the attending physician or employee, or anyone with a claim against the estate (§ 166.003). Witness 2 has no disqualifications.
4. Healthcare Agent Authority
Under § 166.152, the agent may make any healthcare decision the principal could make, becoming effective when the attending physician certifies in writing the principal lacks capacity. Agent may consent to or refuse life-sustaining treatment and artificial nutrition/hydration.
5. Pregnancy Clauses
Tex. Health & Safety Code § 166.049 PROHIBITS withdrawal/withholding of life-sustaining treatment from a pregnant patient. This provision remains in force post-Dobbs and has been the subject of litigation (e.g., Munoz case).
6. Reciprocity
Section 166.005 honors directives validly executed in other jurisdictions.
7. MOST/DNR
The Out-of-Hospital DNR (§ 166.082) and MOST forms are physician-signed orders portable across settings.
8. Revocation
Under §§ 166.042 and 166.155, revocable at any time by any means showing intent — oral, written, destruction — regardless of mental state.
9. Default Surrogate
Section 166.039 provides a hierarchy: spouse > reasonably available adult child (consensus) > parent > nearest living relative — to make life-sustaining decisions when no MPOA exists.
This is legal information, not legal advice.
- Pregnant patients wanting to override § 166.049 pregnancy exclusion
- Disputes over invocation of TADA 10-day rule for treatment withdrawal
- Family disagreement over agent's decisions or surrogate hierarchy
- Tex. Health & Safety Code Ch. 166 (Advance Directives Act)
- Tex. Health & Safety Code § 166.049 (pregnancy)
- Tex. Health & Safety Code § 166.039 (surrogate)
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.