Sec. 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient.
(b) If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, if available, from one of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment:
(1) the patient's spouse;
(2) the patient's reasonably available adult children;
(3) the patient's parents; or
(4) the patient's nearest living relative.
(c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known.
(d) A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the attending physician.
(e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient.
(f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment.
(g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Chapter 1251, Estates Code. The court may waive applicable fees in that proceeding.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 291, Sec. 3, eff. Jan. 1, 1998. Renumbered from Sec. 672.009 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.03, eff. Sept. 1, 1999.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0502, eff. April 2, 2015.
Structure Texas Statutes
Subtitle H - Public Health Provisions
Chapter 166 - Advance Directives
Subchapter B. Directive to Physicians
Section 166.032. Written Directive by Competent Adult; Notice to Physician
Section 166.033. Form of Written Directive
Section 166.034. Issuance of Nonwritten Directive by Competent Adult Qualified Patient
Section 166.035. Execution of Directive on Behalf of Patient Younger Than 18 Years of Age
Section 166.036. Notarized Document Not Required; Requirement of Specific Form Prohibited
Section 166.037. Patient Desire Supersedes Directive
Section 166.038. Procedure When Declarant Is Incompetent or Incapable of Communication
Section 166.040. Patient Certification and Prerequisites for Complying With Directive
Section 166.041. Duration of Directive
Section 166.042. Revocation of Directive
Section 166.043. Reexecution of Directive
Section 166.044. Limitation of Liability for Withholding or Withdrawing Life-Sustaining Procedures
Section 166.045. Liability for Failure to Effectuate Directive
Section 166.046. Procedure if Not Effectuating a Directive or Treatment Decision
Section 166.047. Honoring Directive Does Not Constitute Offense of Aiding Suicide
Section 166.048. Criminal Penalty; Prosecution
Section 166.049. Pregnant Patients
Section 166.050. Mercy Killing Not Condoned
Section 166.051. Legal Right or Responsibility Not Affected
Section 166.052. Statements Explaining Patient's Right to Transfer