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Wills and Directives

This legal research guide provides information on topics such as elder care, wills and estate planning, and medical directives.

 Advanced Directives for Medical Care


What are Advanced Directives?

Advance directives are legal documents that outline a person's preferences for the type of end-of-life and/or medical care they would receive in the event that they become ill and cannot communicate their intentions directly. These documents address various aspects of care and act as a set of instructions for family, surrogates, and healthcare professionals.

This page covers four different types of advanced directives that address medical care, including directives to physicians, medical power of attorney, out-of-hospital do-not-resuscitate orders, and declarations for mental health treatment. 

Texas Law

Understanding the Law

What is a Directive to Physicians?

A "directive to physicians" is a legal document that allows a person to outline their preferences for medical care, especially for end-of-life treatment. Commonly referred to as a "living will", a directive to physicians can be created at any time by a competent adult or their designated agent.  A person uses a directive to physicians to detail specific instructions on what type of medical treatment they do and do not want to be performed if they are not able to communicate their wishes directly.

This document differs from a medical power of attorney in that it allows the person to speak for themselves rather than have a designated person make medical decisions on their behalf.

What Types of Treatments Does a Directive Cover?

Section 166.031 of the Texas Health and Safety Code states that an advanced directive covers "life-sustaining treatment", which is defined in Section 166.002 as any treatment that is absolutely necessary to continue the life of the patient. 

This includes:

This does not include pain management medication or any other medical procedures or care designed to relieve pain and assist in a patient's comfort. 

When is it Used?

A directive to physicians will be used when a person becomes incompetent or can't otherwise speak for themselves to explain what course of treatment they would prefer, according to Section 166.038 of the Texas Health and Safety Code.

How Long Does it Last? Can I Revoke it?

The directive is active from the time it is executed and lasts until it is revoked, according to Section 166.041 of the Texas Health and Safety Code. A directive may be revoked at any time. Texas law allows the person who created the directive (referred to as the "declarant" in the statutes) to revoke their directive in a few different ways, as outlined in Section 166.042:

Texas Law

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What is a Medical Power of Attorney?

A medical power of attorney gives someone else the right to make decisions about their medical care on their behalf. There are different types of powers of attorney. For more information on other types, please see our Research Guide to Powers of Attorney. 

How long does it last?

A medical power of attorney is usually a kind of durable power of attorney — meaning that it will last after the principal has been incapacitated. According to Section 166.152(g) of the Texas Health and Safety Code, it lasts until:

Why would I need one?

In the event that you cannot make decisions about your own medical care, this document would allow someone you trust to make those decisions for you. It is a common part of later-life planning and legal preparations for people with disabilities. 

Note that a medical power of attorney differs from a "living will," which allows you to state what medical procedure you do and do not want performed. For example, a living will would allow you to tell doctors that you do not want to receive a blood transfusion. A medical power of attorney does not discuss specific procedures but instead gives someone else the authority to make decisions about those procedures for you.

Texas Law

Understanding the Law

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What is an Out-of-Hospital Do-Not-Resuscitate Order?

An "out-of-hospital do-not-resuscitate order" is a legal document for people who wish to die without any medical intervention. These orders are used by those who prefer to die without any medical intervention. The order tells emergency medical professionals not to provide certain life-saving treatments. It is sometimes called an "OOH-DNR" or just a "DNR."

What Type of Treatments are Covered?

According to Section 166.081(6a) of the Texas Health and Safety Code, the following life-saving treatments are covered in a DNR order:

What Qualifies as an "Out-of-Hospital Setting"?

According to Section 166.081(7), of the Texas Health and Safety Code, an out-of-hospital setting can include any location where a medical professional is called to provide assistance. The statute includes the following:

Texas Law

Understanding the Law

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What is a Declaration of Mental Health Treatment?

According to Section 137.001 of the Texas Civil Practice and Remedies Code, a declaration of mental health treatment is a "document making a declaration of preferences or instructions regarding mental health treatment". A person can use the declaration of mental health treatment to refuse or consent to certain types of mental health treatment.

What Types of Treatments are Covered?

According to Section 137.001 of the Texas Civil Practice and Remedies Code, mental health treatment refers to the following types of treatment: 

How long does it last?

A declaration for mental health treatment is active as soon as it is executed. However, unlike other types of advanced directives, a declaration for mental health treatment is only valid for three years from the execution date. After this period is up, the declaration automatically expires and a new declaration will need to be issued in its place. There are a few exceptions according to Section 137.002 of the Texas Civil Practice and Remedies Code:

Can I revoke it?

Section 137.010 of the Texas Civil Practice and Remedies Code allows a person to revoke an existing declaration for mental health treatment as long as they are not incapacitated (defined in Section 137.001(6) as unable to make mental health treatment decisions on their own behalf). A few different options for revoking a declaration for mental health treatment are provided: 

Texas Law

Understanding the Law

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