Texas Living Will Requirements

Introduction

Key Things to Know

1. 1

   Texas keeps your living will and your health care agent designation as two completely separate legal documents, not one combined form. This directive (Health and Safety Code Sections 166.031 to 166.054) is your own written statement of the medical treatment you want or want withheld if you cannot communicate, effective on your signature alone; a separate Medical Power of Attorney covers only what happens when your own instructions do not reach far enough to answer a situation.

2. 2

   A living will is not a last will and testament. Your Texas directive governs medical treatment while you are alive but unable to communicate, while a last will and testament governs who inherits your property after you die.

3. 3

   Texas law bars withdrawing or withholding life sustaining treatment from a patient diagnosed as pregnant, with no exception written into the statute for the stage of pregnancy.

4. 4

   Only one of your two signing witnesses has to satisfy the full witness disqualification list (not your decision maker, not a relative, not an heir, not your physician or the physician's employee, not a facility employee providing your direct care). Your second witness only needs to be a competent adult.

5. 5

   You may sign in front of two qualifying witnesses, or instead have your signature acknowledged before a notary public. Both paths are equally valid on their own; neither is a fallback for the other.

6. 6

   Artificial nutrition and hydration is automatically part of your general treatment wishes in Texas. There is no separate line you must initial for it specifically, though you can call it out in the form's Additional Requests space if you want to.

7. 7

   If you are already receiving hospice care through a licensed home and community support services agency, Texas presumes you have a terminal condition under this law, without requiring a separate physician certification to trigger that presumption.

8. 8

   You can revoke your directive at any time, regardless of your mental state, by destroying it, signing a dated written revocation, or simply telling someone you intend to revoke it. The revocation takes effect once your physician has been notified.

9. 9

   Texas has no state registry where you file or register your own signed living will. The only registry the Advance Directives Act creates lists health care providers willing to accept patient transfers, not declarants and their directives.

Texas Requirements for Living Will

• Advance Directive Authority (Texas Health and Safety Code, Chapter 166)

  The Texas Advance Directives Act defines 'advance directive' as an umbrella term covering three separate instruments under three separate subchapters: a directive to physicians (Sections 166.031 to 166.054, the living will), an out-of-hospital DNR order (Sections 166.081 to 166.102), and a medical power of attorney (Sections 166.151 to 166.166). Texas's living will is its own instrument, fully separate from its Medical Power of Attorney, not one combined document.

• Competent Adult Requirement (Texas Health and Safety Code, Section 166.032)

  Section 166.032 lets any competent adult execute a written directive at any time. It does not itself state a specific age or an emancipated minor rule; while this section does not define 'adult,' the related Medical Power of Attorney law (Section 166.151) defines it as a person 18 or older or an emancipated minor.

• Witness Requirements (Texas Health and Safety Code, Section 166.003)

  Both signing witnesses must be competent adults, but only one of the two must additionally clear the full disqualification list: not the declarant's named decision maker, not related by blood or marriage, not entitled to any part of the estate, not the attending physician or the physician's employee, and not a facility employee providing the declarant direct care. The second witness only needs to be a competent adult, nothing more.

• Notarization Alternative (Texas Health and Safety Code, Section 166.032)

  As an alternative to two witnesses, a declarant may sign the directive and have the signature acknowledged before a notary public instead.

• Terminal Condition Definition (Texas Health and Safety Code, Section 166.002(13))

  A terminal condition is an incurable condition that, according to reasonable medical judgment, will produce death within six months even with available life sustaining treatment. A patient already admitted to hospice care through a licensed home and community support services agency is presumed to have a terminal condition for purposes of the entire chapter, without a separate physician certification being required to trigger that presumption.

• Irreversible Condition Definition (Texas Health and Safety Code, Section 166.002(9))

  An irreversible condition is one that may be treated but is never cured or eliminated, that leaves a person unable to care for or make decisions for themselves, and that is fatal without life sustaining treatment provided under the prevailing standard of medical care.

• Life-Sustaining Treatment Specifications (Texas Health and Safety Code, Section 166.002(10) and Section 166.033)

  Naming specific treatments such as artificial nutrition and hydration, mechanical ventilation, dialysis, or antibiotics is optional, not mandatory. Section 166.002(10) already includes all of these within its general definition of life sustaining treatment, and the Section 166.033 form's Additional Requests section only offers them as examples if a declarant wants to single one out.

• Revocation Provisions (Texas Health and Safety Code, Section 166.042)

  A declarant may revoke a directive at any time, regardless of mental state or competency, by destroying it, by signing a dated written revocation, or by orally stating an intent to revoke. A written or oral revocation takes effect once the attending physician is notified of it.

• Pregnancy Limitations (Texas Health and Safety Code, Section 166.049)

  Life sustaining treatment may not be withdrawn or withheld under this subchapter from a patient diagnosed as pregnant. The statute contains no exception tied to how far the pregnancy has progressed, and the declarant acknowledges this directly on the statutory form.

• Default Surrogate Priority When No Directive Exists (Texas Health and Safety Code, Section 166.039)

  This section provides the default priority list for surrogate decision-making that Texas law uses only when a patient has not executed a directive and has no legal guardian or Medical Power of Attorney agent. The attending physician and, in order, the patient's spouse, reasonably available adult children, parents, or nearest living relative may make the treatment decision instead.

• Out-of-Hospital DNR Order, A Separate Document (Texas Health and Safety Code, Sections 166.081 to 166.102)

  The Out-of-Hospital DNR Order is its own instrument under its own subchapter, requiring its own physician signature, and it directs emergency personnel outside a hospital not to attempt resuscitation. It is not part of, and does not need to be addressed within, the Directive to Physicians this page covers.

• Physician Non-Compliance Procedure (Texas Health and Safety Code, Sections 166.045 and 166.046)

  If an attending physician refuses to honor a directive, the refusal must be reviewed by an ethics or medical committee that the physician cannot sit on, and life sustaining treatment continues throughout that review. If the physician does not want to go through that committee review, life sustaining treatment must instead be provided only until the patient can reasonably be transferred to a physician or facility willing to comply.

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how a health care agent can be authorized to access protected health information once that agent's authority is in effect. This authorization supports the agent decision maker role under a separate Medical Power of Attorney; it does not change or expand your own treatment wishes under a Directive to Physicians.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Federal law requires Medicare and Medicaid participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under Texas law to make an advance directive, including stating their own treatment wishes.

• Digital or Electronic Signatures (Texas Health and Safety Code, Section 166.011)

  Chapter 166 has its own dedicated digital or electronic signature rule specific to advance directives, letting a declarant, witness, or notary sign using a department approved digital signature or a qualifying electronic signature that is verifiable, under the signer's sole control, and tamper evident. This specific rule in Chapter 166 is the controlling authority for electronic signatures on Texas advance directives.

• Organ Donation Wishes (Texas Health and Safety Code, Chapter 692A)

  The Revised Uniform Anatomical Gift Act lets a person authorize organ and tissue donation, a separate but related wish many declarants also want to record alongside their treatment preferences.

• Pain Management and Comfort Care (Texas Health and Safety Code, Section 166.002(10))

  Texas's definition of life sustaining treatment expressly excludes pain management medication and any medical procedure necessary to provide comfort care. Comfort care and pain relief remain available regardless of what the declarant elects about life sustaining treatment generally, and the statutory form separately confirms that electing hospice care means only comfort focused treatment will be given.

• No Individual Advance Directive Registry (Texas Health and Safety Code, Section 166.053)

  Texas does not operate a registry where an individual can file or register their own signed living will, unlike some other states. Section 166.053 only creates a registry of health care providers and referral groups who have voluntarily told the department they may accept transfer of a patient whose directive a physician will not honor. It says nothing about, and has no bearing on, the validity of a declarant's own executed directive.