Texas Power of Attorney for Healthcare Law

Power of Attorney and Health Care – General – Texas

(1) “Adult” means a person 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed.

(2) “Agent” means an adult to whom authority to make health care decisions is delegated under a medical power of attorney.

(3) “Health care provider” means an individual or facility licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice and includes a physician.

(4) “Principal” means an adult who has executed a medical power of attorney.

(5) “Residential care provider” means an individual or facility licensed, certified, or otherwise authorized to operate, for profit or otherwise, a residential care home.

§ 166.152. Scope and Duration of Authority

(a) Subject to this subchapter or any express limitation on the authority of the agent contained in the medical power of attorney, the agent may make any health care decision on the principal’s behalf that the principal could make if the principal were competent.

(b) An agent may exercise authority only if the principal’s attending physician certifies in writing and files the certification in the principal’s medical record that, based on the attending physician’s reasonable medical judgment, the principal is incompetent.

(c) Notwithstanding any other provisions of this subchapter, treatment may not be given to or withheld from the principal if the principal objects regardless of whether, at the time of the objection:

(1) a medical power of attorney is in effect; or

(2) the principal is competent.

(d) The principal’s attending physician shall make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing an agent’s advance directive.

(e) After consultation with the attending physician and other health care providers, the agent shall make a health care decision:

(1) according to the agent’s knowledge of the principal’s wishes, including the principal’s religious and moral beliefs; or

(2) if the agent does not know the principal’s wishes, according to the agent’s assessment of the principal’s best interests.

(f) Notwithstanding any other provision of this subchapter, an agent may not consent to:

(1) voluntary inpatient mental health services;

(2) convulsive treatment;

(3) psychosurgery;

(4) abortion; or

(5) neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal.

(g) The power of attorney is effective indefinitely on execution as provided by this subchapter and delivery of the document to the agent, unless it is revoked as provided by this subchapter or the principal becomes competent. If the medical power of attorney includes an expiration date and on that date the principal is incompetent, the power of attorney continues to be effective until the principal becomes competent unless it is revoked as provided by this subchapter.

§ 166.153. Persons Who May Not Exercise Authority of Agent

A person may not exercise the authority of an agent while the person serves as:

(1) the principal’s health care provider;

(2) an employee of the principal’s health care provider unless the person is a relative of the principal;

(3) the principal’s residential care provider; or

(4) an employee of the principal’s residential care provider unless the person is a relative of the principal.

§ 166.154. Execution and Witnesses

(a) The medical power of attorney must be signed by the principal in the presence of two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2). The witnesses must sign the document.

(b) If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal’s name in the principal’s presence and at the principal’s express direction.

§ 166.155. Revocation

(a) A medical power of attorney is revoked by:

(1) oral or written notification at any time by the principal to the agent or a licensed or certified health or residential care provider or by any other act evidencing a specific intent to revoke the power, without regard to whether the principal is competent or the principal’s mental state;

(2) execution by the principal of a subsequent medical power of attorney; or

(3) the divorce of the principal and spouse, if the spouse is the principal’s agent, unless the medical power of attorney provides otherwise.

(b) A principal’s licensed or certified health or residential care provider who is informed of or provided with a revocation of a medical power of attorney shall immediately record the revocation in the principal’s medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal’s care.

§ 166.156. Appointment of Guardian

(a) On motion filed in connection with a petition for appointment of a guardian or, if a guardian has been appointed, on petition of the guardian, a probate court shall determine whether to suspend or revoke the authority of the agent.

(b) The court shall consider the preferences of the principal as expressed in the medical power of attorney.

(c) During the pendency of the court’s determination under Subsection (a), the guardian has the sole authority to make any health care decisions unless the court orders otherwise. If a guardian has not been appointed, the agent has the authority to make any health care decisions unless the court orders otherwise.

(d) A person, including any attending physician or health or residential care provider, who does not have actual knowledge of the appointment of a guardian or an order of the court granting authority to someone other than the agent to make health care decisions is not subject to criminal or civil liability and has not engaged in unprofessional conduct for implementing an agent’s health care decision.

§ 166.157. Disclosure of Medical Information

Subject to any limitations in the medical power of attorney, an agent may, for the purpose of making a health care decision:

(1) request, review, and receive any information, oral or written, regarding the principal’s physical or mental health, including medical and hospital records;

(2) execute a release or other document required to obtain the information; and

(3) consent to the disclosure of the information.

Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.007 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999. § 166.158. Duty of Health or Residential Care Provider

(a) A principal’s health or residential care provider and an employee of the provider who knows of the existence of the principal’s medical power of attorney shall follow a directive of the principal’s agent to the extent it is consistent with the desires of the principal, this subchapter, and the medical power of attorney.

(b) The attending physician does not have a duty to verify that the agent’s directive is consistent with the principal’s wishes or religious or moral beliefs.

(c) A principal’s health or residential care provider who finds it impossible to follow a directive by the agent because of a conflict with this subchapter or the medical power of attorney shall inform the agent as soon as is reasonably possible. The agent may select another attending physician. The procedures established under Sections 166.045 and 166.046 apply if the agent’s directive concerns providing, withholding, or withdrawing life-sustaining treatment.

(d) This subchapter may not be construed to require a health or residential care provider who is not a physician to act in a manner contrary to a physician’s order.

§ 166.159. Discrimination Relating to Execution of Medical Power of Attorney

A health or residential care provider, health care service plan, insurer issuing disability insurance, self-insured employee benefit plan, or nonprofit hospital service plan may not:

(1) charge a person a different rate solely because the person has executed a medical power of attorney;

(2) require a person to execute a medical power of attorney before:

(A) admitting the person to a hospital, nursing home, or residential care home;

(B) insuring the person; or

(C) allowing the person to receive health or residential care; or

(3) refuse health or residential care to a person solely because the person has executed a medical power of attorney.

§ 166.160. Limitation on Liability

(a) An agent is not subject to criminal or civil liability for a health care decision if the decision is made in good faith under the terms of the medical power of attorney and the provisions of this subchapter.

(b) An attending physician, health or residential care provider, or a person acting as an agent for or under the physician’s or provider’s control is not subject to criminal or civil liability and has not engaged in unprofessional conduct for an act or omission if the act or omission:

(1) is done in good faith under the terms of the medical power of attorney, the directives of the agent, and the provisions of this subchapter; and

(2) does not constitute a failure to exercise reasonable care in the provision of health care services.

(c) The standard of care that the attending physician, health or residential care provider, or person acting as an agent for or under the physician’s or provider’s control shall exercise under Subsection (b) is that degree of care that an attending physician, health or residential care provider, or person acting as an agent for or under the physician’s or provider’s control, as applicable, of ordinary prudence and skill would have exercised under the same or similar circumstances in the same or similar community.

(d) An attending physician, health or residential care provider, or person acting as an agent for or under the physician’s or provider’s control has not engaged in unprofessional conduct for:

(1) failure to act as required by the directive of an agent or a medical power of attorney if the physician, provider, or person was not provided with a copy of the medical power of attorney or had no knowledge of a directive; or

(2) acting as required by an agent’s directive if the medical power of attorney has expired or been revoked but the physician, provider, or person does not have knowledge of the expiration or revocation.

§ 166.161. Liability for Health Care Costs

Liability for the cost of health care provided as a result of the agent’s decision is the same as if the health care were provided as a result of the principal’s decision.

§ 166.162. Disclosure Statement

A medical power of attorney is not effective unless the principal, before executing the medical power of attorney, signs a statement that the principal has received a disclosure statement and has read and understood its contents.

Note: All Information and Previews are subject to the Disclaimer located on the main forms page, and also linked at the bottom of all search results.


Inside Texas Power of Attorney for Healthcare Law