Texas 2023 - 88th Regular

Texas House Bill HB4989 Compare Versions

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1	1	88R27377 MPF-F
2	2	By: Bhojani, Campos, Jetton, H.B. No. 4989
3	3	A. Johnson of Harris, Lambert
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to the presumption of validity for an advance directive
9	9	and permissible forms of a medical power of attorney.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subchapter A, Chapter 166, Health and Safety
12	12	Code, is amended by adding Section 166.012 to read as follows:
13	13	Sec. 166.012. PRESUMPTION OF VALIDITY; LIMITATION OF
14	14	LIABILITY. (a) In the absence of actual knowledge to the contrary,
15	15	a health care provider or residential care provider, as those terms
16	16	are defined by Section 166.151, or other person acting as an agent
17	17	for or under the provider's control may presume that an advance
18	18	directive is valid under this chapter and has been validly executed
19	19	by a person authorized to execute the advance directive.
20	20	(b) The health care provider, residential care provider, or
21	21	other person described by Subsection (a) is not civilly or
22	22	criminally liable or subject to review or disciplinary action by
23	23	the appropriate licensing authority for following an advance
24	24	directive or instructions of an advance directive that the provider
25	25	or person presumes is valid under this chapter.
26	26	SECTION 2. Subchapter D, Chapter 166, Health and Safety
27	27	Code, is amended by adding Section 166.163 to read as follows:
28	28	Sec. 166.163. PERMISSIBLE FORMS OF MEDICAL POWER OF
29	29	ATTORNEY. (a) A valid medical power of attorney must be in:
30	30	(1) a form designated by the executive commissioner in
31	31	accordance with Subsection (b), provided the document is executed
32	32	in the manner required by Section 166.154; or
33	33	(2) the statutory form prescribed by Section 166.164.
34	34	(b) The executive commissioner by rule shall review and
35	35	designate documents to be recognized in this state as a written and
36	36	validly executed medical power of attorney. Any document designated
37	37	by the executive commissioner must:
38	38	(1) be promulgated by a national nonprofit
39	39	organization or the Commission on Law and Aging, American Bar
40	40	Association;
41	41	(2) be written in plain language;
42	42	(3) allow a principal to provide a health care
43	43	instruction;
44	44	(4) designate a primary agent who is at least 18 years
45	45	of age to make health care decisions for the principal when the
46	46	principal lacks the capacity to make the decisions;
47	47	(5) allow the principal to name an alternate agent who
48	48	is at least 18 years of age to make health care decisions for the
49	49	principal if the primary agent is unable or unwilling to make the
50	50	decisions;
51	51	(6) allow the principal to specify or limit the health
52	52	care decisions an agent may make for the principal;
53	53	(7) require the principal to:
54	54	(A) sign and date the medical power of attorney
55	55	in the presence of two witnesses who qualify under Section 166.003,
56	56	at least one of whom qualifies under Section 166.003(2); or
57	57	(B) sign and date the medical power of attorney
58	58	and have the signature acknowledged before a notary public; and
59	59	(8) be accepted as a validly executed medical power of
60	60	attorney in at least 40 other states of the United States.
61	61	(c) The commission shall post on the commission's Internet
62	62	website a link to each document designated under Subsection (b).
63	63	SECTION 3. Section 166.164, Health and Safety Code, is
64	64	amended to read as follows:
65	65	Sec. 166.164. STATUTORY [FORM OF] MEDICAL POWER OF ATTORNEY
66	66	FORM. A [The] medical power of attorney may [must] be in
67	67	[substantially] the following form:
68	68	MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT.
69	69	I, __________ (insert your name) appoint:
70	70	Name:___________________________________________________________
71	71	Address:________________________________________________________
72	72	Phone:
73	73	as my agent to make any and all health care decisions for me,
74	74	except to the extent I state otherwise in this document. This
75	75	medical power of attorney takes effect if I become unable to make my
76	76	own health care decisions and this fact is certified in writing by
77	77	my physician.
78	78	LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE
79	79	AS FOLLOWS:_____________________________________________________
80	80	________________________________________________________________
81	81	DESIGNATION OF ALTERNATE AGENT.
82	82	(You are not required to designate an alternate agent but you
83	83	may do so. An alternate agent may make the same health care
84	84	decisions as the designated agent if the designated agent is unable
85	85	or unwilling to act as your agent. If the agent designated is your
86	86	spouse, the designation is automatically revoked by law if your
87	87	marriage is dissolved, annulled, or declared void unless this
88	88	document provides otherwise.)
89	89	If the person designated as my agent is unable or unwilling to
90	90	make health care decisions for me, I designate the following
91	91	persons to serve as my agent to make health care decisions for me as
92	92	authorized by this document, who serve in the following order:
93	93	A. First Alternate Agent
94	94	Name:________________________________________________
95	95	Address:_____________________________________________
96	96	Phone:
97	97	B. Second Alternate Agent
98	98	Name:________________________________________________
99	99	Address:_____________________________________________
100	100	Phone:
101	101	The original of this document is kept at:
102	102	_____________________________________________________
103	103	_____________________________________________________
104	104	_____________________________________________________
105	105	The following individuals or institutions have signed
106	106	copies:
107	107	Name:________________________________________________
108	108	Address:_____________________________________________
109	109	_____________________________________________________
110	110	Name:________________________________________________
111	111	Address:_____________________________________________
112	112	_____________________________________________________
113	113	DURATION.
114	114	I understand that this power of attorney exists indefinitely
115	115	from the date I execute this document unless I establish a shorter
116	116	time or revoke the power of attorney. If I am unable to make health
117	117	care decisions for myself when this power of attorney expires, the
118	118	authority I have granted my agent continues to exist until the time
119	119	I become able to make health care decisions for myself.
120	120	(IF APPLICABLE) This power of attorney ends on the following
121	121	date: __________
122	122	PRIOR DESIGNATIONS REVOKED.
123	123	I revoke any prior medical power of attorney.
124	124	DISCLOSURE STATEMENT.
125	125	THIS MEDICAL POWER OF ATTORNEY IS AN IMPORTANT LEGAL
126	126	DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE
127	127	IMPORTANT FACTS:
128	128	Except to the extent you state otherwise, this document gives
129	129	the person you name as your agent the authority to make any and all
130	130	health care decisions for you in accordance with your wishes,
131	131	including your religious and moral beliefs, when you are unable to
132	132	make the decisions for yourself. Because "health care" means any
133	133	treatment, service, or procedure to maintain, diagnose, or treat
134	134	your physical or mental condition, your agent has the power to make
135	135	a broad range of health care decisions for you. Your agent may
136	136	consent, refuse to consent, or withdraw consent to medical
137	137	treatment and may make decisions about withdrawing or withholding
138	138	life-sustaining treatment. Your agent may not consent to
139	139	voluntary inpatient mental health services, convulsive treatment,
140	140	psychosurgery, or abortion. A physician must comply with your
141	141	agent's instructions or allow you to be transferred to another
142	142	physician.
143	143	Your agent's authority is effective when your doctor
144	144	certifies that you lack the competence to make health care
145	145	decisions.
146	146	Your agent is obligated to follow your instructions when
147	147	making decisions on your behalf. Unless you state otherwise, your
148	148	agent has the same authority to make decisions about your health
149	149	care as you would have if you were able to make health care
150	150	decisions for yourself.
151	151	It is important that you discuss this document with your
152	152	physician or other health care provider before you sign the
153	153	document to ensure that you understand the nature and range of
154	154	decisions that may be made on your behalf. If you do not have a
155	155	physician, you should talk with someone else who is knowledgeable
156	156	about these issues and can answer your questions. You do not need a
157	157	lawyer's assistance to complete this document, but if there is
158	158	anything in this document that you do not understand, you should ask
159	159	a lawyer to explain it to you.
160	160	The person you appoint as agent should be someone you know and
161	161	trust. The person must be 18 years of age or older or a person
162	162	under 18 years of age who has had the disabilities of minority
163	163	removed. If you appoint your health or residential care provider
164	164	(e.g., your physician or an employee of a home health agency,
165	165	hospital, nursing facility, or residential care facility, other
166	166	than a relative), that person has to choose between acting as your
167	167	agent or as your health or residential care provider; the law does
168	168	not allow a person to serve as both at the same time.
169	169	You should inform the person you appoint that you want the
170	170	person to be your health care agent. You should discuss this
171	171	document with your agent and your physician and give each a signed
172	172	copy. You should indicate on the document itself the people and
173	173	institutions that you intend to have signed copies. Your agent is
174	174	not liable for health care decisions made in good faith on your
175	175	behalf.
176	176	Once you have signed this document, you have the right to make
177	177	health care decisions for yourself as long as you are able to make
178	178	those decisions, and treatment cannot be given to you or stopped
179	179	over your objection. You have the right to revoke the authority
180	180	granted to your agent by informing your agent or your health or
181	181	residential care provider orally or in writing or by your execution
182	182	of a subsequent medical power of attorney. Unless you state
183	183	otherwise in this document, your appointment of a spouse is revoked
184	184	if your marriage is dissolved, annulled, or declared void.
185	185	This document may not be changed or modified. If you want to
186	186	make changes in this document, you must execute a new medical power
187	187	of attorney.
188	188	You may wish to designate an alternate agent in the event that
189	189	your agent is unwilling, unable, or ineligible to act as your
190	190	agent. If you designate an alternate agent, the alternate agent
191	191	has the same authority as the agent to make health care decisions
192	192	for you.
193	193	THIS POWER OF ATTORNEY IS NOT VALID UNLESS:
194	194	(1) YOU SIGN IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED
195	195	BEFORE A NOTARY PUBLIC; OR
196	196	(2) YOU SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT
197	197	WITNESSES.
198	198	THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
199	199	(1) the person you have designated as your agent;
200	200	(2) a person related to you by blood or marriage;
201	201	(3) a person entitled to any part of your estate after
202	202	your death under a will or codicil executed by you or by operation
203	203	of law;
204	204	(4) your attending physician;
205	205	(5) an employee of your attending physician;
206	206	(6) an employee of a health care facility in which you
207	207	are a patient if the employee is providing direct patient care to
208	208	you or is an officer, director, partner, or business office
209	209	employee of the health care facility or of any parent organization
210	210	of the health care facility; or
211	211	(7) a person who, at the time this medical power of
212	212	attorney is executed, has a claim against any part of your estate
213	213	after your death.
214	214	By signing below, I acknowledge that I have read and
215	215	understand the information contained in the above disclosure
216	216	statement.
217	217	(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY. YOU MAY SIGN
218	218	IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED BEFORE A NOTARY PUBLIC OR
219	219	YOU MAY SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES.)
220	220	SIGNATURE ACKNOWLEDGED BEFORE NOTARY
221	221	I sign my name to this medical power of attorney on __________
222	222	day of __________ (month, year) at
223	223	_____________________________________________
224	224	(City and State)
225	225	_____________________________________________
226	226	(Signature)
227	227	_____________________________________________
228	228	(Print Name)
229	229	State of Texas
230	230	County of ________
231	231	This instrument was acknowledged before me on __________ (date) by
232	232	________________ (name of person acknowledging).
233	233	_____________________________
234	234	NOTARY PUBLIC, State of Texas
235	235	Notary's printed name:
236	236	_____________________________
237	237	My commission expires:
238	238	_____________________________
239	239	OR
240	240	SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES
241	241	I sign my name to this medical power of attorney on __________
242	242	day of __________ (month, year) at
243	243	_____________________________________________
244	244	(City and State)
245	245	_____________________________________________
246	246	(Signature)
247	247	_____________________________________________
248	248	(Print Name)
249	249	STATEMENT OF FIRST WITNESS.
250	250	I am not the person appointed as agent by this document. I am
251	251	not related to the principal by blood or marriage. I would not be
252	252	entitled to any portion of the principal's estate on the principal's
253	253	death. I am not the attending physician of the principal or an
254	254	employee of the attending physician. I have no claim against any
255	255	portion of the principal's estate on the principal's
256	256	death. Furthermore, if I am an employee of a health care facility
257	257	in which the principal is a patient, I am not involved in providing
258	258	direct patient care to the principal and am not an officer,
259	259	director, partner, or business office employee of the health care
260	260	facility or of any parent organization of the health care facility.
261	261	Signature:________________________________________________
262	262	Print Name:___________________________________ Date:______
263	263	Address:__________________________________________________
264	264	SIGNATURE OF SECOND WITNESS.
265	265	Signature:________________________________________________
266	266	Print Name:___________________________________ Date:______
267	267	Address:__________________________________________________
268	268	SECTION 4. Not later than December 1, 2023, the executive
269	269	commissioner of the Health and Human Services Commission shall by
270	270	rule designate a document as required by Section 166.163, Health
271	271	and Safety Code, as added by this Act.
272	272	SECTION 5. Section 166.163, Health and Safety Code, as
273	273	added by this Act, and Section 166.164, Health and Safety Code, as
274	274	amended by this Act, apply only to a medical power of attorney
275	275	executed on or after the effective date of this Act. A medical
276	276	power of attorney executed before the effective date of this Act is
277	277	governed by the law in effect immediately before the effective date
278	278	of this Act, and the former law is continued in effect for that
279	279	purpose.
280	280	SECTION 6. This Act takes effect September 1, 2023.