TEXAS HEALTH CARE POWER OF ATTORNEY
(a/k/a “Medical Power of Attorney”)
[// GUIDANCE: This template is designed to substantially comply with Tex. Health & Safety Code §§ 166.151–166.166 (Medical Power of Attorney), incorporates a HIPAA Authorization compliant with 45 C.F.R. § 164.508, and adds defensive drafting features (indemnification, liability caps, forum-selection) requested by the client. Practitioners should tailor bracketed items to the individual Principal, confirm witness/notary format, and review the statutory warning language in § 166.164 if substituting or materially modifying the form.]
TABLE OF CONTENTS
I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Successor Agents
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution & Attestation
I. DOCUMENT HEADER
1.1 Title. This Health Care Power of Attorney (“Agreement”) is executed by [PRINCIPAL FULL LEGAL NAME] (“Principal”) on [EFFECTIVE DATE] pursuant to the Texas Advance Directives Act, Tex. Health & Safety Code ch. 166 (the “Act”).
1.2 Parties.
(a) Principal: [PRINCIPAL FULL LEGAL NAME], residing at [PRINCIPAL ADDRESS].
(b) Primary Agent: [AGENT FULL LEGAL NAME], residing at [AGENT ADDRESS].
(c) First Alternate Agent (optional): [ALT1 NAME], residing at [ALT1 ADDRESS].
(d) Second Alternate Agent (optional): [ALT2 NAME], residing at [ALT2 ADDRESS].
1.3 Consideration. The Principal desires to appoint an Agent to make health-care decisions if the Principal becomes incapacitated, and the Agent is willing to serve in that fiduciary capacity.
1.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas (“state_healthcare_law”).
1.5 Jurisdiction. Exclusive venue for any proceeding arising hereunder shall lie in the statutory probate court of the county where the Principal resides at the time such proceeding is commenced (“state_probate_court”).
II. DEFINITIONS
For purposes of this Agreement, capitalized terms have the meanings set forth below:
“Act” – The Texas Advance Directives Act, Tex. Health & Safety Code ch. 166.
“Agent” – The individual designated in § 1.2(b) (or an Alternate Agent pursuant to § 6.2) authorized to act for the Principal under this Agreement.
“Decision-Making Capacity” – The ability to understand the nature and consequences of a proposed health-care decision, including the benefits, risks, and alternatives, and to make and communicate that decision, as determined by the attending physician.
“End-of-Life Decisions” – Decisions relating to life-sustaining treatment, artificial nutrition or hydration, or treatment withdrawal when the Principal is in a terminal or irreversible condition, each as defined in Tex. Health & Safety Code § 166.002.
“Health Care Provider” – Any person or facility licensed, certified, or otherwise authorized under Texas or federal law to provide health-care services.
“HIPAA” – The Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including 45 C.F.R. parts 160 and 164.
“Incapacitated” or “Incapacity” – Lacking Decision-Making Capacity, as certified in writing by the attending physician.
“Principal” – The individual granting authority herein.
III. OPERATIVE PROVISIONS
3.1 Grant of Authority.
(a) The Principal hereby appoints the Agent to make any and all health-care decisions on the Principal’s behalf if the Principal is Incapacitated, including decisions regarding medical, surgical, psychiatric, and dental treatment, nursing care, hospitalization, home health, long-term care, hospice, palliative care, and organ and tissue donation, subject to the limitations set forth in this Agreement.
(b) The Agent’s authority becomes effective upon written certification of the Principal’s Incapacity by the attending physician and continues until revoked or automatically terminated pursuant to § 3.6.
3.2 Scope of Authority. Without limiting the foregoing, the Agent may:
(1) Give informed consent, refuse consent, or withdraw consent to any health-care treatment or procedure.
(2) Hire and discharge health-care providers.
(3) Access, request, receive, and disclose medical records consistent with the HIPAA Authorization in § 3.5.
(4) Authorize the admission to or discharge from hospitals, nursing homes, memory-care facilities, or similar institutions.
(5) Sign any documents required to implement health-care decisions, including waivers, releases, or arbitration agreements (unless Principal strikes such authority in § 3.4).
(6) Apply for Medicare, Medicaid, veterans, or other governmental or private benefits to defray health-care costs.
3.3 End-of-Life Provisions.
(a) Consistent with the Act, the Agent shall honor the Principal’s written Directive to Physicians and Family or Surrogates (if any). If no directive exists, the Agent shall determine, in consultation with the attending physician, whether to continue, limit, or withdraw life-sustaining treatment based on the Principal’s known wishes or, if unknown, the Principal’s best interests.
(b) The Agent may not consent to voluntary inpatient mental-health services or convulsive treatment unless expressly authorized: [☐ Authorize] [☐ Do NOT authorize].
3.4 Special Instructions and Limitations. The Principal places the following restrictions on the Agent’s authority (attach additional pages if needed):
[INSERT LIMITATIONS OR “NONE”]
3.5 HIPAA Authorization. Pursuant to 45 C.F.R. § 164.508(c):
(a) The Principal authorizes any Health Care Provider to disclose to the Agent any protected health information (“PHI”) about the Principal that the Agent deems relevant to the exercise of the authority granted herein.
(b) This authorization is effective upon execution and survives the Principal’s death to the extent necessary to carry out the Agent’s post-death authority (e.g., autopsy, organ donation).
(c) The Principal waives any privilege that would otherwise prohibit such disclosure.
3.6 Duration; Automatic Termination. This Agreement:
(1) Remains in effect until revoked by the Principal pursuant to § 8.4 or automatically upon the Principal’s death;
(2) Terminates as to a former spouse-Agent upon entry of a final divorce decree, unless the Principal reaffirms the appointment; and
(3) Survives the Principal’s disability or lapse of time to the maximum extent permitted by law.
IV. REPRESENTATIONS & WARRANTIES
4.1 Principal’s Representations. The Principal represents and warrants that:
(a) The Principal is at least 18 years old (or an emancipated minor) and of sound mind.
(b) Execution of this Agreement is voluntary and not the result of fraud, duress, or undue influence.
(c) Any prior medical power of attorney is revoked upon the effectiveness of this Agreement.
4.2 Agent’s Representations. By accepting the appointment, the Agent represents that:
(a) The Agent is at least 18 years old, competent to serve, and not disqualified under Tex. Health & Safety Code § 166.164(e).
(b) The Agent will act in good faith, consistent with the Principal’s instructions and best interests, and in compliance with applicable law.
V. COVENANTS & RESTRICTIONS
5.1 Fiduciary Duties. The Agent shall:
(a) Make decisions in accordance with the Principal’s expressed wishes, religious or moral beliefs, and personal values;
(b) Consult with health-care professionals and keep records of decisions made;
(c) Keep the Principal’s information confidential except as necessary to carry out authorized duties; and
(d) Refrain from delegating authority except to a duly appointed Alternate Agent under § 6.2.
5.2 Notice Obligations. The Agent must promptly inform the attending physician and relevant Health Care Providers upon becoming aware of:
(a) Any change in the Principal’s wishes regarding health-care;
(b) Any revocation of this Agreement; or
(c) The Agent’s inability or unwillingness to continue serving.
VI. DEFAULT & SUCCESSOR AGENTS
6.1 Removal or Resignation of Agent. The Principal may remove the Agent at any time. The Agent may resign by delivering written notice to the Principal (if competent), the attending physician, and any Alternate Agent.
6.2 Successor Agents. If the Primary Agent is unavailable, unwilling, or disqualified, authority passes to the Alternate Agents in the order listed in § 1.2(c)–(d). Each successor shall have the same authority as the Primary Agent unless otherwise stated herein.
6.3 Contingency in Absence of Any Agent. If all Agents are unable to serve, health-care decisions shall be made in accordance with the surrogate hierarchy in Tex. Health & Safety Code § 166.039.
VII. RISK ALLOCATION
7.1 Indemnification. The Principal agrees to indemnify and hold harmless the Agent, each Alternate Agent, and any Health Care Provider who relies in good faith on this Agreement from any liability, loss, or expense (including reasonable attorneys’ fees) arising out of acts or omissions within the scope of authority granted herein, except to the extent resulting from the Agent’s willful misconduct, gross negligence, or bad faith.
7.2 Limitation of Liability. Neither the Agent nor any Health Care Provider acting in reliance on this Agreement shall be liable to the Principal or any third party for actions taken in good faith pursuant hereto.
7.3 Reliance Protection. Third parties may rely on a photocopy or electronically transmitted copy of this Agreement as though it were an original.
7.4 Insurance (Optional). [☐ The Principal has obtained liability insurance for the Agent with policy limits of $____.]
VIII. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement and all rights and obligations hereunder shall be governed by the substantive laws of the State of Texas without regard to conflict-of-laws rules.
8.2 Forum Selection. Any action or proceeding pertaining to this Agreement shall be filed exclusively in the statutory probate court (or, if none, a court of appropriate jurisdiction) in the county identified in § 1.5.
8.3 Arbitration & Jury Trial. Arbitration is not available under this Agreement, and no jury-trial waiver is granted.
8.4 Revocation; Injunctive Relief.
(a) The Principal may revoke this Agreement at any time by (i) signing and dating a written revocation; (ii) orally expressing intent to revoke in the presence of a witness age 18 or older; or (iii) executing a subsequent medical power of attorney.
(b) Because monetary damages may be inadequate, the parties acknowledge that injunctive relief may be sought to enforce or restrain acts in violation of this Agreement (healthcare_directive).
IX. GENERAL PROVISIONS
9.1 Amendment. This Agreement may be amended only by a writing signed by the Principal while competent, witnessed or notarized in the same manner as the original.
9.2 Assignment. The Agent’s rights are personal and may not be assigned.
9.3 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be interpreted to fulfill its original intent to the maximum extent permitted by law.
9.4 Entire Agreement. This document constitutes the entire medical power of attorney of the Principal and supersedes all prior inconsistent directives.
9.5 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and signature by electronic means in compliance with Tex. Bus. & Com. Code ch. 322 (UETA) shall be valid and binding.
X. EXECUTION & ATTESTATION
[// GUIDANCE: Texas permits EITHER two qualified witnesses OR a notary, but best practice is both. Ensure witnesses meet the disqualification rules in Tex. Health & Safety Code § 166.003(2).]
Principal
I, [PRINCIPAL FULL LEGAL NAME], sign my name to this Health Care Power of Attorney on the date set forth below and declare that I am of sound mind and executing this document voluntarily.
Signature: ____
Printed Name: ____
Date: ________
Acceptance by Agent
I, [AGENT FULL LEGAL NAME], accept the appointment as Agent and agree to act in accordance with its terms.
Signature: ____
Date: ________
(Repeat acceptance blocks for each Alternate Agent, if desired.)
OPTION A – NOTARIZATION
State of Texas )
County of ______)
This instrument was acknowledged before me on ___, 20__, by [PRINCIPAL NAME].
Notary Public, State of Texas
My Commission Expires: _______
OPTION B – WITNESS ATTESTATION
We declare that the Principal is personally known to us, appears to be of sound mind, and signed or acknowledged this instrument in our presence. We further declare that at least one of us is not related to the Principal by blood or marriage, not a beneficiary of the Principal’s estate, not the attending physician or employee thereof, and not entitled to any part of the Principal’s estate under existing testamentary instruments.
Witness #1
Signature: ____
Printed Name: ____
Address: _____
Date: _____
Witness #2
Signature: ____
Printed Name: ____
Address: _____
Date: _____
[// GUIDANCE: File the executed original with the Principal’s estate-planning documents, deliver copies to the Agents and primary physicians, and consider uploading to the Texas Advance Directives Registry if and when implemented.]