Default Health-Care Surrogate Priority in Texas

At a glance

Requirements one by one

When the default route opens

Tex. Health & Safety Code § 313.004(a) applies when an adult patient in a covered setting is comatose, incapacitated, or otherwise mentally or physically unable to communicate and no guardian or medical-power-of-attorney agent is reasonably available after a reasonably diligent inquiry. Section 313.005(a) requires the attending physician to record the condition and proposed treatment.

Care or setting covered

Section 313.002(8) defines a Chapter 313 patient as a person admitted to a hospital, residing in a nursing home, receiving covered home and community support services, or held in a county or municipal jail. Thus a jail patient is included, but has further restrictions and a time limit under § 313.004(e)–(f).

Family and partner order

Section 313.004(a) lists spouse, adult children, parents, then nearest living relative. The candidate must have decision-making capacity, be willing to consent, and be reasonably available after diligent inquiry. The statute identifies classes, but does not state a majority rule for several adult children or parents; § 313.004(b) sends disputes over the right to act to a court of record with estate-proceeding jurisdiction.

Who is available and eligible

Under § 313.005(b), the attending physician must make a reasonably diligent effort to contact eligible people and record those attempts in detail. If a surrogate consents, § 313.005(c) requires a date-and-time entry and the surrogate's countersignature or informed-consent form; subsection (d) addresses consent given remotely.

Decisions limited or excluded

Tex. Health & Safety Code § 313.003 excludes life-sustaining treatment withholding or withdrawal from this chapter. Section 313.004(d) separately bars a surrogate from consenting to voluntary inpatient mental-health services, electro-convulsive treatment, or appointment of another surrogate. For a county or municipal jail inmate, § 313.004(e) adds psychotropic medication and other psychiatric limits, while subsection (f) limits surrogate authority to the earlier of 120 days or release.

No surrogate or disputed authority

If no guardian, agent, or listed family member is reasonably available after diligent inquiry, § 313.004(a-1) permits another physician who is not involved in treating the patient to concur with the treatment. The court route in § 313.004(b) resolves disputes about a claimant's authority rather than turning the physician's concurrence into a new family class.

What trips people up

The physician-concurrence route in § 313.004(a-1) follows an unsuccessful reasonably diligent search; it is not a free choice between a physician and an available spouse. Even when a family member qualifies, § 313.004(c) requires consent to rest on knowledge of what the patient would desire, if that is known. A jail surrogate cannot be replaced at the end of the statutory 120-day period under subsection (f).

Common questions

Can a close friend take the place of a relative under this chapter? Section 313.004(a) ends its family list with the nearest living relative; when no listed person is available, subsection (a-1) provides physician concurrence instead of a friend category.

Does consent need to be written? Under § 313.005(c)–(d), the physician records the consent and the surrogate countersigns the record or executes an informed-consent form; non-in-person consent is reduced to writing and countersigned as soon as possible.

Statutes and sources

• Tex. Health & Safety Code §§ 313.002–.005. Verbatim official text, the chapter URL, and access dates appear in the source fields above.