By: Bhojani H.B. No. 4989
A BILL TO BE ENTITLED
AN ACT
relating to the permissible forms of a medical power of attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 166, Health and Safety
Code, is amended by adding Section 166.163 to read as follows:
Sec. 166.163. PERMISSIBLE FORMS OF MEDICAL POWER OF
ATTORNEY. (a) A medical power of attorney may be in:
(1) a form designated by the executive commissioner in
accordance with Subsection (b), provided the document is executed
in the manner required by Section 166.154; or
(2) the form prescribed by Section 166.164.
(b) The executive commissioner by rule shall review and
designate documents to be recognized in this state as a written and
validly executed medical power of attorney. Any document
designated by the executive commissioner must:
(1) be promulgated by a national nonprofit
organization or the Commission on Law and Aging, American Bar
Association;
(2) be written in plain language;
(3) allow a principal to provide a health care
instruction;
(4) designate a primary agent who is at least 18 years
of age to make health care decisions for the principal when the
principal lacks the capacity to make the decisions;
(5) allow the principal to name an alternate agent who
is at least 18 years of age to make health care decisions for the
principal if the primary agent is unable or unwilling to make the
decisions;
(6) allow the principal to specify or limit the health
care decisions an agent may make for the principal;
(7) require the principal to:
(A) sign and date the medical power of attorney
in the presence of two witnesses who qualify under Section 166.003,
at least one of whom qualifies under Section 166.003(2); or
(B) sign the document and have the signature
acknowledge before a notary public; and
(8) be accepted as a validly executed medical power of
attorney in at least 40 other states of the United States.
(c) The commission shall post on the commission's Internet
website a link to each document designated under Subsection (b).
SECTION 2. Section 166.164, Health and Safety Code, is
amended to read as follows:
Sec. 166.164. PERMISSIBLE FORM OF MEDICAL POWER OF
ATTORNEY. A [The] medical power of attorney may [must] be in
[substantially] the following form:
MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT.
I, __________ (insert your name) appoint:
Name:___________________________________________________________
Address:________________________________________________________
Phone:
as my agent to make any and all health care decisions for me,
except to the extent I state otherwise in this document. This
medical power of attorney takes effect if I become unable to make my
own health care decisions and this fact is certified in writing by
my physician.
LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE
AS FOLLOWS:_____________________________________________________
________________________________________________________________
DESIGNATION OF ALTERNATE AGENT.
(You are not required to designate an alternate agent but you
may do so. An alternate agent may make the same health care
decisions as the designated agent if the designated agent is unable
or unwilling to act as your agent. If the agent designated is your
spouse, the designation is automatically revoked by law if your
marriage is dissolved, annulled, or declared void unless this
document provides otherwise.)
If the person designated as my agent is unable or unwilling to
make health care decisions for me, I designate the following
persons to serve as my agent to make health care decisions for me as
authorized by this document, who serve in the following order:
A. First Alternate Agent
Name:________________________________________________
Address:_____________________________________________
Phone:
B. Second Alternate Agent
Name:________________________________________________
Address:_____________________________________________
Phone:
The original of this document is kept at:
_____________________________________________________
_____________________________________________________
_____________________________________________________
The following individuals or institutions have signed
copies:
Name:________________________________________________
Address:_____________________________________________
_____________________________________________________
Name:________________________________________________
Address:_____________________________________________
_____________________________________________________
DURATION.
I understand that this power of attorney exists indefinitely
from the date I execute this document unless I establish a shorter
time or revoke the power of attorney. If I am unable to make health
care decisions for myself when this power of attorney expires, the
authority I have granted my agent continues to exist until the time
I become able to make health care decisions for myself.
(IF APPLICABLE) This power of attorney ends on the following
date: __________
PRIOR DESIGNATIONS REVOKED.
I revoke any prior medical power of attorney.
DISCLOSURE STATEMENT.
THIS MEDICAL POWER OF ATTORNEY IS AN IMPORTANT LEGAL
DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE
IMPORTANT FACTS:
Except to the extent you state otherwise, this document gives
the person you name as your agent the authority to make any and all
health care decisions for you in accordance with your wishes,
including your religious and moral beliefs, when you are unable to
make the decisions for yourself. Because "health care" means any
treatment, service, or procedure to maintain, diagnose, or treat
your physical or mental condition, your agent has the power to make
a broad range of health care decisions for you. Your agent may
consent, refuse to consent, or withdraw consent to medical
treatment and may make decisions about withdrawing or withholding
life-sustaining treatment. Your agent may not consent to voluntary
inpatient mental health services, convulsive treatment,
psychosurgery, or abortion. A physician must comply with your
agent's instructions or allow you to be transferred to another
physician.
Your agent's authority is effective when your doctor
certifies that you lack the competence to make health care
decisions.
Your agent is obligated to follow your instructions when
making decisions on your behalf. Unless you state otherwise, your
agent has the same authority to make decisions about your health
care as you would have if you were able to make health care
decisions for yourself.
It is important that you discuss this document with your
physician or other health care provider before you sign the
document to ensure that you understand the nature and range of
decisions that may be made on your behalf. If you do not have a
physician, you should talk with someone else who is knowledgeable
about these issues and can answer your questions. You do not need a
lawyer's assistance to complete this document, but if there is
anything in this document that you do not understand, you should ask
a lawyer to explain it to you.
The person you appoint as agent should be someone you know and
trust. The person must be 18 years of age or older or a person under
18 years of age who has had the disabilities of minority removed.
If you appoint your health or residential care provider (e.g., your
physician or an employee of a home health agency, hospital, nursing
facility, or residential care facility, other than a relative),
that person has to choose between acting as your agent or as your
health or residential care provider; the law does not allow a person
to serve as both at the same time.
You should inform the person you appoint that you want the
person to be your health care agent. You should discuss this
document with your agent and your physician and give each a signed
copy. You should indicate on the document itself the people and
institutions that you intend to have signed copies. Your agent is
not liable for health care decisions made in good faith on your
behalf.
Once you have signed this document, you have the right to make
health care decisions for yourself as long as you are able to make
those decisions, and treatment cannot be given to you or stopped
over your objection. You have the right to revoke the authority
granted to your agent by informing your agent or your health or
residential care provider orally or in writing or by your execution
of a subsequent medical power of attorney. Unless you state
otherwise in this document, your appointment of a spouse is revoked
if your marriage is dissolved, annulled, or declared void.
This document may not be changed or modified. If you want to
make changes in this document, you must execute a new medical power
of attorney.
You may wish to designate an alternate agent in the event that
your agent is unwilling, unable, or ineligible to act as your agent.
If you designate an alternate agent, the alternate agent has the
same authority as the agent to make health care decisions for you.
THIS POWER OF ATTORNEY IS NOT VALID UNLESS:
(1) YOU SIGN IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED
BEFORE A NOTARY PUBLIC; OR
(2) YOU SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT
WITNESSES.
THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
(1) the person you have designated as your agent;
(2) a person related to you by blood or marriage;
(3) a person entitled to any part of your estate after
your death under a will or codicil executed by you or by operation
of law;
(4) your attending physician;
(5) an employee of your attending physician;
(6) an employee of a health care facility in which you
are a patient if the employee is providing direct patient care to
you or is an officer, director, partner, or business office
employee of the health care facility or of any parent organization
of the health care facility; or
(7) a person who, at the time this medical power of
attorney is executed, has a claim against any part of your estate
after your death.
By signing below, I acknowledge that I have read and
understand the information contained in the above disclosure
statement.
(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY. YOU MAY SIGN
IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED BEFORE A NOTARY PUBLIC OR
YOU MAY SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES.)
SIGNATURE ACKNOWLEDGED BEFORE NOTARY
I sign my name to this medical power of attorney on __________
day of __________ (month, year) at
_____________________________________________
(City and State)
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
State of Texas
County of ________
This instrument was acknowledged before me on __________ (date) by
________________ (name of person acknowledging).
_____________________________
NOTARY PUBLIC, State of Texas
Notary's printed name:
_____________________________
My commission expires:
_____________________________
OR
SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES
I sign my name to this medical power of attorney on __________
day of __________ (month, year) at
_____________________________________________
(City and State)
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
STATEMENT OF FIRST WITNESS.
I am not the person appointed as agent by this document. I am
not related to the principal by blood or marriage. I would not be
entitled to any portion of the principal's estate on the principal's
death. I am not the attending physician of the principal or an
employee of the attending physician. I have no claim against any
portion of the principal's estate on the principal's
death. Furthermore, if I am an employee of a health care facility
in which the principal is a patient, I am not involved in providing
direct patient care to the principal and am not an officer,
director, partner, or business office employee of the health care
facility or of any parent organization of the health care facility.
Signature:________________________________________________
Print Name:___________________________________ Date:______
Address:__________________________________________________
SIGNATURE OF SECOND WITNESS.
Signature:________________________________________________
Print Name:___________________________________ Date:______
Address:__________________________________________________
SECTION 3. Not later than December 1, 2023, the executive
commissioner of the Health and Human Services Commission shall by
rule designate a document as required by Section 166.163, Health
and Safety Code, as added by this Act.
SECTION 4. The changes in law made by this Act apply only to
a medical power of attorney executed on or after the effective date
of this Act. A medical power of attorney executed before the
effective date of this Act is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
SECTION 5. This Act takes effect September 1, 2023.