Tex.
Health & Safety Code Section 166.039
Procedure When Person Has Not Executed or Issued a Directive and Is Incompetent or Incapable of Communication
(a)
If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the patient’s legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient.(b)
If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, if available, from one of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment:(1)
the patient’s spouse;(2)
the patient’s reasonably available adult children;(3)
the patient’s parents; or(4)
the patient’s nearest living relative.(c)
A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known.(d)
A treatment decision made under Subsection (b) must be documented in the patient’s medical record and signed by the attending physician.(e)
If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient.(f)
The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment.(g)
A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Chapter 1251 (Temporary Guardianships), Estates Code. The court may waive applicable fees in that proceeding.
Source:
Section 166.039 — Procedure When Person Has Not Executed or Issued a Directive and Is Incompetent or Incapable of Communication, https://statutes.capitol.texas.gov/Docs/HS/htm/HS.166.htm#166.039 (accessed May 26, 2025).
