TEXAS LIVING WILL / ADVANCE DIRECTIVE

(“Directive to Physicians and Family or Surrogates”)

Made Pursuant to Tex. Health & Safety Code Ann. § 166.031 et seq.

[// GUIDANCE: This template substantially follows—but does not reproduce verbatim—the statutory form located at Tex. Health & Safety Code § 166.033. Use of the statutory language is recommended for maximum enforceability. Practitioners may incorporate all or part of the statutory text in Section III(A) below.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block

I. DOCUMENT HEADER

1.1 Title. This instrument constitutes the Living Will / Advance Directive (the “Directive”) of [PATIENT FULL LEGAL NAME] (the “Declarant”).

1.2 Effective Date. This Directive is effective on the later of (a) the date of Declarant’s signature, or (b) [EFFECTIVE DATE, if different] (the “Effective Date”).

1.3 Governing Law. This Directive shall be governed by and construed in accordance with the laws of the State of Texas, including Tex. Health & Safety Code Ann. § 166.031 et seq. (“Texas Advance Directives Act”).

1.4 Purpose and Consideration. Declarant executes this Directive voluntarily and after thoughtful consideration, to provide legally-binding instructions to health-care providers, agents, and family members regarding health-care decisions in the event Declarant is diagnosed with a terminal or irreversible condition and is unable to communicate such decisions personally. No monetary consideration is exchanged.

II. DEFINITIONS

For purposes of this Directive, capitalized terms have the meanings set forth below:

“Advance Directive Act” means Tex. Health & Safety Code Ann. ch. 166, as amended.

“Attending Physician” means the physician selected by, or assigned to, Declarant who has primary responsibility for Declarant’s treatment and care.

“Directive” has the meaning given in Section 1.1.

“Good-Faith Reliance” means reliance that is (a) objectively reasonable, and (b) based upon authentic, unrevoked documents or communications.

“Irreversible Condition” has the meaning given in § 166.002(9) of the Advance Directive Act.

“Life-Sustaining Treatment” means treatment that, based on reasonable medical judgment, sustains the life of Declarant and without which Declarant is likely to die, excluding pain management and comfort care.

“Pregnant Patient Limitation” means the statutory limitation at § 166.049 prohibiting withdrawal or withholding of life-sustaining treatment from a pregnant patient.

“Terminal Condition” has the meaning given in § 166.002(13).

“Witness” means an individual meeting the competency and disinterestedness requirements of § 166.032.

III. OPERATIVE PROVISIONS

A. Statement of Intent.
1. If, in the judgment of my Attending Physician, I am suffering with a Terminal Condition or an Irreversible Condition and I am unable to communicate my wishes, I direct that:
a. [ ] Life-Sustaining Treatment be withheld or withdrawn and that I be allowed to die naturally.
b. [ ] Life-Sustaining Treatment continue for as long as medically feasible.
[// GUIDANCE: Select (a) or (b); strike the option not chosen.]

2. Nutrition & Hydration.
   [ ] I authorize artificial nutrition and hydration.
   [ ] I do not authorize artificial nutrition and hydration, except for comfort.

3. Pregnancy. I acknowledge the Pregnant Patient Limitation and understand this Directive will have no force while I am pregnant, unless otherwise permitted by applicable law at such time.

4. Pain Management. Regardless of any election above, I direct provision of medication or any medical procedure necessary to alleviate pain or provide comfort, even if it may hasten my death.

B. Designation of Surrogate (Optional).
If no Medical Power of Attorney is in effect, I designate [SURROGATE NAME & CONTACT INFORMATION] to act as my surrogate decision-maker consistent with Tex. Health & Safety Code § 166.039.

C. Revocation.
1. I retain the continuing right to revoke this Directive in whole or in part at any time, by:
a. A signed and dated written revocation;
b. An oral statement or other expression of intent to revoke, made in the presence of the Attending Physician; or
c. Physical destruction or cancellation of this document by me or by someone acting at my direction.
2. Any revocation is effective upon communication to the Attending Physician, consistent with § 166.042.

IV. REPRESENTATIONS & WARRANTIES

4.1 Declarant’s Capacity. Declarant represents that, on the Effective Date, Declarant is of sound mind and at least eighteen (18) years of age or otherwise an emancipated minor.

4.2 Voluntariness. Execution of this Directive is voluntary and free of duress or undue influence.

4.3 No Conflicting Directives. Declarant affirms that any prior advance directive is hereby revoked to the extent of any conflict with this Directive.

V. COVENANTS & RESTRICTIONS

5.1 Declarant Covenants. Declarant covenants to provide copies of this Directive to Declarant’s Attending Physician, health-care facility, and agents, and to discuss its contents with family members.

5.2 Provider Compliance. Health-care providers are restricted to acting strictly in accordance with the instructions herein, subject to applicable law.

VI. DEFAULT & REMEDIES

6.1 Failure to Honor Directive. If a health-care provider declines to comply with this Directive for reasons of conscience or institutional policy, the provider shall comply with the transfer procedures set forth in § 166.045.

6.2 Injunctive Relief. Declarant and Declarant’s legal representatives reserve the right to seek injunctive or declaratory relief in a court of competent jurisdiction to compel compliance with this Directive.

6.3 Attorneys’ Fees. A court may award reasonable attorneys’ fees and costs to the prevailing party in any action to enforce this Directive.

VII. RISK ALLOCATION

7.1 Indemnification of Providers. Declarant intends—and to the fullest extent permitted by law hereby agrees—that any health-care provider acting in Good-Faith Reliance on this Directive shall be indemnified and held harmless from civil or criminal liability, consistent with Tex. Health & Safety Code § 166.044 (“provider protection”).

7.2 Limitation of Liability. No health-care provider acting in Good-Faith Reliance on this Directive shall incur liability beyond the “good-faith” standard set forth in § 166.044.

7.3 Force Majeure. Providers shall not be liable for non-performance to the extent performance is rendered impossible due to acts of God, war, civil disturbance, or other events beyond their reasonable control.

VIII. DISPUTE RESOLUTION

8.1 Governing Law. This Directive and any dispute arising under it shall be governed exclusively by the laws of the State of Texas and the Advance Directive Act, without regard to conflict-of-law rules.

8.2 Forum Selection. Any judicial proceeding shall be brought in a Texas state court of competent jurisdiction in the county where Declarant receives treatment.

8.3 Arbitration; Jury Waiver. Not applicable.

8.4 Preserved Right to Injunctive Relief. Nothing herein shall impair the right of any party with standing to seek emergent injunctive relief to enforce or prevent violation of this Directive.

IX. GENERAL PROVISIONS

9.1 Amendment. Declarant may amend this Directive in writing at any time, signed and dated in the presence of two (2) Witnesses meeting § 166.032 requirements.

9.2 Severability. If any provision of this Directive is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

9.3 Integration. This Directive constitutes the entire advance directive of Declarant and supersedes all prior inconsistent directives.

9.4 Counterparts; Electronic Signatures. This Directive may be executed in multiple counterparts, each of which shall be deemed an original. Electronic or digital signatures shall be deemed originals to the fullest extent allowed by Tex. Bus. & Com. Code ch. 322 (UETA).

9.5 Copies. A photocopy or electronically stored copy of this Directive shall have the same force and effect as an original.

X. EXECUTION BLOCK

A. Declarant’s Signature

I have read and understand the contents of this Directive. I am emotionally and mentally competent to make this Directive.

| _____ | _____ |
| [PATIENT FULL LEGAL NAME] | Date |

Address: [PATIENT ADDRESS]
Phone: [PATIENT PHONE]
Email: [PATIENT EMAIL]

B. Witness Attestation (Tex. Health & Safety Code § 166.032)

We, the undersigned Witnesses, certify that (1) Declarant signed this Directive in our presence (or acknowledged such signature), (2) Declarant appeared to us to be of sound mind and under no duress, fraud, or undue influence, and (3) each of us is a competent adult and not disqualified under § 166.032(c).

[// GUIDANCE: At least one Witness must be completely disinterested—i.e., not related by blood or marriage, not entitled to any part of Declarant’s estate, not the attending physician or their employee, etc., per § 166.032(c).]

C. Optional Acknowledgment by Notary Public

(Not required if two qualified Witnesses sign, but may facilitate authentication.)

State of Texas §
County of [_] §

On this _ day of _, 20__, before me, the undersigned Notary Public, personally appeared [PATIENT FULL LEGAL NAME], proved to me on the basis of satisfactory evidence to be the person whose name is subscribed herein, and acknowledged that they executed the same for the purposes herein contained.

Notary Public, State of Texas
My Commission Expires: _____

D. Physician’s Statement (Recommended)

I, [PHYSICIAN NAME, M.D.], as Attending Physician for the Declarant, certify that I have received, reviewed, and placed this Directive in the Declarant’s medical record on _____, 20__.

Signature of Attending Physician

[// GUIDANCE: File copies with primary care physician, hospital admissions, and any designated agent under a Medical Power of Attorney. Encourage clients to carry a wallet card stating that an Advance Directive is on file.]