Bhojani Bill Shields Providers Who Follow An Advance Directive

The text as introduced · 2,168 words

89R3342 MPF-D

By: Bhojani
H.B. No. 1059

A BILL TO BE ENTITLED

AN ACT

relating to the presumption of validity for an advance directive

and permissible forms of a medical power of attorney.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter A, Chapter 166, Health and Safety

Code, is amended by adding Section 166.012 to read as follows:

Sec. 166.012. PRESUMPTION OF VALIDITY; LIMITATION OF

LIABILITY. (a) In the absence of actual knowledge to the contrary,

a health care provider or residential care provider, as those terms

are defined by Section 166.151, or other person acting as an agent

for or under the provider's control may presume an advance

directive is valid under this chapter and has been validly executed

by a person authorized to execute the advance directive.

(b) The health care provider, residential care provider, or

other person described by Subsection (a) is not civilly or

criminally liable or subject to review or disciplinary action by

the appropriate licensing authority for following an advance

directive or instructions of an advance directive the provider or

person presumes is valid under this chapter.

SECTION 2. 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 valid medical power of attorney must be in:

(1) a form the executive commissioner designates in

accordance with Subsection (b), provided the document is executed

in the manner required by Section 166.154; or

(2) the statutory 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 the

executive commissioner designates must:

(1) be promulgated by a national nonprofit

organization or the American Bar Association Commission on Law and

Aging;

(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 and date the medical power of attorney

and have the signature acknowledged 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 3. Section 166.164, Health and Safety Code, is

amended to read as follows:

Sec. 166.164. STATUTORY [ FORM OF ] MEDICAL POWER OF ATTORNEY

FORM . 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 4. Not later than December 1, 2025, the executive

commissioner of the Health and Human Services Commission shall by

rule designate at least one document as required by Section

166.163, Health and Safety Code, as added by this Act.

SECTION 5. Section 166.163, Health and Safety Code, as

added by this Act, and Section 166.164, Health and Safety Code, as

amended 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 6. This Act takes effect September 1, 2025.