WPCW" 2 ZB1ed2HP LaserJet 4M PlusXN\  PXP#XN\  PXP#Quick a.  . a, b, c,Lowercase Letters .2"gP0dLrhd/G/D/ioI&G Letterhead/ GMK/Date/io0#XxP7XP# XX  XX  X # *0 x7#*Ikard & Golden, p.c.   #X*0 x7X#*attorneys & counselors  L 8"X#f*0 x 7#8"Frank N. Ikard, Jr. **823 Congress Avenueʐ$$NCorrespondence: 8"Alvin J. Golden **Suite 910ʐ$$NP. O. Box 684367 8"Glenn M. Karisch **Austin, Texas 78701ʐ$$NAustin, Texas 787684367 8"Jerry Frank Jones (Of Counsel) **512/4726695ʐ$$NFax 512/4723669 8"#^T*0 x!7^#* Board Certified 8"Estate Planning & Probate Law*email: karisch@io.com#f*0 x"7#ʐ$$NWriters Direct Line 8"#^T P#7^P#Texas Board of Legal Specialization*http://www.io.com/user/karisch/ikard&golden.html#f P$7P#ʐ$$N512/4724542    XX ` hp x (#%#XxP%7XP# * 3 1, 4 Quick «XN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularX[\  PP(9 Z6Times New Roman RegularXN\  PXP(9 Z6Times New Roman RegularX D\  P P(9 Z6Times New Roman Regular XN\  PXP(9 Z6Times New Roman RegularX:\  PP(9 Z6Times New Roman Regular D\  P P(9 Z6Times New Roman Regular  D\  P  P(9 Z 6Times New Roman Regular  D\  P  P(9 Z6Times New Roman Regular  D\  P  P(9 Z 6Times New Roman Regular  D\  P  P(9 Z6Times New Roman Regular XN\  P XP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z 6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z 6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXxP7XPH` AZ0Univers (WN) RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXN\  PXP(9 Z 6Times New Roman RegularXXN\  PXP(9 Z6Times New Roman RegularXXxP7XPH` AZ0Univers (WN) RegularX *0 x7* `(CG TimesScalableX*0 x7X* `(CG TimesScalableXf*0 x 7* `(CG TimesScalable^T*0 x!7^* `(CG TimesScalable^f*0 x"7* `(CG TimesScalable^T P#7^PG  Z 2CG Times (WN) Regular^f P$7PG  Z 2CG Times (WN) RegularXxP%7XPH` AZ0Univers (WN) RegularX2M"U"3|x{#XN\  PXP# DISABILITY PLANNING GUIDE`!(#GPAGE  { 8 DISABILITY PLANNING GUIDE ă #[\  PP#This guide is intended to help Texas lawyers keep track of the various statutes affecting disability planning, including statutes amended in 1997. It is current through the 1997 legislative session. It is not intended for use by members of the general public, as many of the legal issues involved are complex. This guide is provided free of charge by Glenn M. Karisch of Barnes & Karisch, P. C., Austin, Texas. Although the author believes that it is free of error, neither Glenn M. Karisch nor Barnes & Karisch, P. C., warrants its accuracy. ` ` ` hhh Glenn M. Karisch ` ` ` hhh Barnes & Karisch, P. C. ` ` ` hhhAustin, Texas ` ` ` hhh#XN\  PXP#  1997, 1998 by Glenn M. Karisch  TABLE OF CONTENTS ă JTTT/ TTT/ J  @ H @ H Description  Page P P Summary of 1997 Legislative Changes Affecting Disability PlanningSUMMARY3P P Table Statutory Disability Planning Forms (After 1997 Changes) TABLE5 P P The full text of the disability planning statutes as amended by the 75th Legislature, including:P P lllChapter XII, Probate Code ( 481 506) Durable Powers of Attorney CHAPTER XII6P P lllChapter 135, Civil Practices and Remedies Code Durable Powers of Attorney for Health CareCHAPTER 13518P P lllChapter 672, Health and Safety Code (Natural Death Act) Directives to PhysiciansCHAPTER 67225P P lllSections 677A, 679, Probate Code Declarations of GuardianSECTION 677A30P P lllChapter 137, Civil Practices and Remedies Code Declarations for Mental Health TreatmentCHAPTER 13733P P lllChapter 674, Health and Safety Code OutofHospital DoNotResuscitateCHAPTER 67438P P Appendices Statutory Disability Planning Forms (Reflecting 1997 Changes)APPENDICES47P P lllA Statutory Durable Power of AttorneyA POA1 P P lllB Durable Power of Attorney for Health CareB HCPOAi P P lllC Directive to PhysiciansC DTP1 P P lllD Declaration of Guardian for Minor ChildrenDGUARDIAN-CHILDREN1P P lllE Declaration of Guardian [for Self]EGUARDIAN-ADULT1P  P  lllF Declaration for Mental Health TreatmentF DMHT1   SUMMARY OF 1997 LEGISLATIVE CHANGES AFFECTING DISABILITY PLANNING  SUMMARY   These three bills from the 75th Texas legislature affected disability planning: 1. SB 620 This was the durable power of attorney bill authored by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It made several changes to 1993's Durable Power of Attorney Act. The change which is most likely to affect estate planners is, in effect, a new statutory durable power of attorney form. The new form, for use on and after September 1, 1997: a.` ` ` Adopts a strikeout method of designating specific powers, rather than the initialthebox method of the old form, which should be less confusing and less susceptible to fraud. b.` ` ` Makes the statutory form a general power of appointment if no specific powers are struck. c.` ` ` Includes an optional provision for making annual exclusion gifts (which must be separately initialed). d.` ` ` Eliminates the requirement for including the principal's social security number. e.` ` ` Specifies a procedure for determining disability if a springing power is used. Use of the statutory form remains optional. SB 620 also provides for the automatic revocation of the designation of a spouse as agent upon divorce, clarifies that oil and gas transactions are covered by "Real Property Transactions" and defines "retirement plans" to include IRAs, qualified plans, etc. SB 620 has been signed by Governor Bush and becomes law on September 1, 1997. 2. HB 880 HB 880 changed the witness requirements on directives to physicians. Under these changes: Quick a. .` ` ` The person designated to make a treatment decision under the directive to physicians may not be a witness to the directive. Quick a.   Quick a. .` ` ` A patient in the health care facility where the declarant is a patient is no longer prohibited from being a witness. Quick a.   Quick a. .` ` ` Under the old law, an employee of the health care facility who "is directly involved in the financial affairs of the facility" was prohibited from being a witness. Under the new law, that vague standard is made more objective. Now, a person who "is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility" is prohibited from being a witness. Quick a. ی These changes to the witnessing requirements necessitated a change to the statutory form of directive to physicians. The form remains optional, however nonstandard forms may be used. HB 880 also made a change to the procedure for making a treatment decision for a person with no guardian. Under HB 880, the attending physician must now document and sign the treatment decision in the patient's medical record, and if the patient has no legal guardian or other relative available, a treatment decision must be witnessed by another physician who is not involved in the treatment of the patient. The changes made by HB 880 take effect January 1, 1998.# D\  P P# #XN\  PXP# 3. SB 972  SB 972 adds new Chapter 137 to the Civil Practices and Remedies Code, permitting a person who is not incapacitated to declare how he or she wishes to be treated for mental illness if he or she later is adjudicated incapacitated by the probate court or in a "medication hearing" under Section 574.106 of the Health and Safety Code. A mental health declaration expires after three years, but it continues if the person is incapacitated at the end of the threeyear period. This form permits the declarant to consent (or not consent) to the use of electroconvulsive treatment, specific psychoactive medications, and emergency mental health treatment. SB 972 includes a mandatory statutory form. It seems unlikely that a declaration for mental health treatment will become a "standard" disability planning document, as the health care power, directive to physician, declaration of guardian and durable power of attorney have become. Rather, it seems likely that this new declaration will be used in cases where incapacity due to a specific condition is likely and the declarant can make informed decisions about how he or she wishes to be treated. SB 972 becomes effective September 1, 1997.       TABLE Table Statutory Disability Planning Forms (After 1997 Changes)  |TTT. TTT. | *P @ @ @ @ @ @ HP @ @ @ @ @ @ H*#:\  PP#Durable Power of AttorneyHealth Care Power of AttorneyDirective to PhysiciansDeclaration of GuardianOutofHospital DNR OrdersDeclarations of Mental Health Treatment*P @ P @ *Old Statutory ReferenceProbate Code  481 506Chapter 135, Civil Practices and Remedies CodeChapter 672, Health and Safety CodeProbate Code  677A, 679Chapter 674, Health and Safety CodeNone*P @ P @ *New Statutory ReferenceSameSameSameSameSameChapter 137, Civil Practices and Remedies Code*P @ P @ *Changes to statutory formSeveral substantive changesNoneMinor changes (witness requirements)NoneNo statutory form (Texas Board of Health promulgates form)New form*P @ P @ *Is Statutory Form Mandatory?NoYesNoNoYes (boardapproved form)Yes*P @ P @ *Other statutory changesYesNoYesNoNoYes*P @ P @ *Must Be Notarized?YesNoNoYesNoNo*P @ P @ *Number of Witnesses Requirednonetwotwotwotwo, plus the attending physiciantwo*P @ P @ *DurationUntil death, revocation or appointment of guardian of estateUntil revocation, and court may revoke it if guardian is appointedUntil revocationUntil revocationUntil revocation3rd Anniversary of signing or revocation (but continues in effect if declarant is incapacitated at end of 3 years)*P @ P @ *Effect of Divorce After SigningPowers of former spouse as agent terminate, but third parties protectedPower is revoked if former spouse is agentNoneDesignation of spouse has no effect upon divorceNoneNone*P @ P @ *1997 Bills Making ChangesSB 620NoneHB 880NoneNoneSB 972*P A      P A      *Effective Date9/1/97n/a1/1/98n/an/a9/1/97  1997 by Glenn M. Karisch   # D\  P P#CHAPTER XII CHAPTER XII OF THE TEXAS PROBATE CODE (TEX. PROB. CODE ANN.  481 506) THE DURABLE POWER OF ATTORNEY ACT (1997 additions are italicized and underlined; [ 1997 deletions are bracketed and struckout ])  8(#҇ Sec. 481. SHORT TITLE. This chapter may be cited as the Durable Power of Attorney Act. Sec. 482. DEFINITION. A "durable power of attorney" means a written instrument that: (1) designates another person as attorney in fact or agent; (2) is signed by an adult principal; (3) contains the words "This power of attorney is not affected by subsequent disability or incapacity of the principal," or "This power of attorney becomes effective on the disability or incapacity of the principal," or similar words showing the principal's intent that the authority conferred on the attorney in fact or agent shall be exercised notwithstanding the principal's subsequent disability or incapacity; and (4) is acknowledged by the principal before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this state or any other state. Sec. 483. DURATION. A durable power of attorney does not lapse because of the passage of time unless the instrument creating the power of attorney specifically states a time limitation. Sec. 484. EFFECT OF ACTS BY ATTORNEY IN FACT OR AGENT DURING INCAPACITY OF PRINCIPAL. All acts done by an attorney in fact or agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal's successors in interest as if the principal were not disabled or incapacitated. Sec. 485. RELATION OF ATTORNEY IN FACT OR AGENT TO COURT-APPOINTED GUARDIAN OF ESTATE. If, after execution of a durable power of attorney, a court of the principal's domicile appoints a guardian of the estate of the principal, the powers of the attorney in fact or agent terminate on the qualification of the guardian of the estate, and the attorney in fact or agent shall deliver to the guardian of the estate all assets of the estate of the ward in the attorney's or agent's possession and shall account to the guardian of the estate as the attorney or agent would to the principal had the principal terminated his powers.  Sec.485A.EFFECT OF PRINCIPAL'S DIVORCE OR MARRIAGE ANNULMENT IF FORMER SPOUSE IS ATTORNEY IN FACT OR AGENT. If, after execution of a durable power of attorney, the principal is divorced from a person who has been appointed the principal's attorney in fact or agent or the principal's marriage to a person who has been appointed the principal's attorney in fact or agent is annulled, the powers of the attorney in fact or agent granted to the principal's former spouse shall terminate on the date on which the divorce or annulment of marriage is granted by a court, unless otherwise expressly provided by the durable power of attorney. Sec.486.KNOWLEDGE OF DEATH, GUARDIAN OF ESTATE, [ OR ] REVOCATION, DIVORCE, OR MARRIAGE ANNULMENT; GOOD-FAITH ACTS. (a)ĠThe revocation by, the death of, or the qualification of a guardian of the estate of a principal who has executed a durable power of attorney does not revoke or terminate the agency as to the attorney in fact, agent, or other person who, without actual knowledge of the termination of the power by revocation, by the principal's death, or by the qualification of a guardian of the estate of the principal, acts in good faith under or in reliance on the power. (b)The divorce of a principal from a person who has been appointed the principal's attorney in fact or agent before the date on which the divorce is granted or the annulment of the marriage of a principal and a person who has been appointed the principal's attorney in fact or agent before the date the annulment is granted does not revoke or terminate the agency as to a person other than the principal's former spouse if the person acts in good faith under or in reliance on the power. (c)ĠAny action [ so ] taken under this section, unless otherwise invalid or unenforceable, binds successors in interest of the principal.   Sec.487.AFFIDAVIT OF LACK OF KNOWLEDGE OR TERMINATION OF POWER; RECORDING; GOOD-FAITH RELIANCE. (a)As to acts undertaken in good-faith reliance on the durable power of attorney, an affidavit executed by the attorney in fact or agent under a durable power of attorney stating that the attorney in fact or agent did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation, by the principal's death, by the principal's divorce or the annulment of the marriage of the principal if the attorney in fact or agent was the principal's spouse, or by the qualification of a guardian of the estate of the principal is conclusive proof as between the attorney in fact or agent and a person other than the principal or the principal's personal representative dealing with the attorney in fact or agent of the nonrevocation or nontermination of the power at that time. (b)As to acts undertaken in good-faith reliance on the durable power of attorney, an affidavit executed by the attorney in fact or agent under a durable power of attorney stating that the principal is disabled or incapacitated, as defined by the power, is conclusive proof as between the attorney in fact or agent and a person other than the principal or the principal's personal representative dealing with the attorney in fact or agent of the disability or incapacity of the principal at that time. (c)If the exercise of the power of attorney requires execution and delivery of any instrument that is to be recorded, an affidavit executed under Subsection (a) or (b) of this section, when authenticated for record, may also be recorded. (d)This section does not affect any provision in a durable power of attorney for its termination by expiration of time or occurrence of an event other than express revocation.(e)When a durable power of attorney is used, a third party who relies in good faith on the acts of an attorney in fact or agent within the scope of the power of attorney is not liable to the principal. Sec. 488. REVOCATION OF DURABLE POWER OF ATTORNEY. Unless otherwise provided by the durable power of attorney, a revocation of a durable power of attorney is not effective as to a third party relying on the power of attorney until the third party receives actual notice of the revocation. Sec. 489. RECORDING DURABLE POWER OF ATTORNEY FOR REAL PROPERTY TRANSACTIONS. A durable power of attorney for a real property transaction requiring the execution and delivery of an instrument that is to be recorded, including a release, assignment, satisfaction, mortgage, security agreement, deed of trust, encumbrance, deed of conveyance, oil, gas, or other mineral lease, memorandum of a lease, lien, or other claim or right to real property, shall be recorded in the office of the county clerk of the county in which the property is located. Sec. 490. STATUTORY DURABLE POWER OF ATTORNEY. (a) The following form is known as a "statutory durable power of attorney." A person may use a statutory durable power of attorney to grant an attorney in fact or agent powers with respect to a person's property and financial matters. A power of attorney in substantially the following form has the meaning and effect prescribed by this chapter. The validity of a power of attorney as meeting the requirements of a statutory durable power of attorney is not affected by the fact that one or more of the categories of optional powers listed in the form are struck or the form includes specific limitations on or additions to the attorney in fact's or agent's powers. [ When a power in substantially the form set forth in this chapter is used, third parties who rely in good faith on the acts of the agent within the scope of the power may do so without fear of liability to the principal. ] The following form is not exclusive, and other forms of power of attorney may be used.STATUTORY DURABLE POWER OF ATTORNEY NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO. I, __________ (insert your name and address), [ my social security number being __________ (insert your proper SS#), ] appoint __________ (insert the name and address of the person appointed) as my agent (attorney-in-fact) to act for me in any lawful way with respect to all of the following powers except for a power that I have crossed out below. TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER WITHHELD.  Real property transactions; Tangible personal property transactions; Stock and bond transactions; Commodity and option transactions; Banking and other financial institution transactions; Business operating transactions; Insurance and annuity transactions; Estate, trust, and other beneficiary transactions; Claims and litigation; Personal and family maintenance; Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service; Retirement plan transactions; Tax matters. IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I WERE PERSONALLY PRESENT [ the following initialed subjects: [ TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS. [ TO GRANT ONE OR MORE, BUT FEWER THAN ALL, OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF EACH POWER YOU ARE GRANTING. [ TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT. YOU MAY, BUT NEED NOT, CROSS OUT EACH POWER WITHHELD. [ INITIAL ,[ _______(A)real property transactions; ,[ _______(B)tangible personal property transactions; ,[ _______(C)stock and bond transactions; ,[ _______(D)commodity and option transactions; ,[ _______(E)banking and other financial institution transactions; ,[ _______(F)business operating transactions; ,[ _______(G)insurance and annuity transactions; ,[ _______(H)estate, trust, and other beneficiary transactions; ,[ _______(I)claims and litigation; ,[ _______(J)personal and family maintenance; ,[ _______(K)benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service; ,[ _______(L)retirement plan transactions; ,[ _______(M)tax matters; ,[ _______(N)ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU NEED NOT INITIAL ANY OTHER LINES IF YOU INITIAL LINE (N) ]. SPECIAL INSTRUCTIONS: Special instructions applicable to gifts (initial in front of the following sentence to have it apply): I grant my agent (attorney in fact) the power to apply my property to make gifts, except that the amount of a gift to an individual may not exceed the amount of annual exclusions allowed from the federal gift tax for the calendar year of the gift. ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. ______________________________________________________________________________ _______________________________________ _______________________________________ _______________________________________ _______________________________________ _______________________________________ _______________________________________ _______________________________________ _______________________________________ UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE ALTERNATIVE NOT CHOSEN: (A)This power of attorney is not affected by my subsequent disability or incapacity. (B)This power of attorney becomes effective upon my disability or incapacity. YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED. IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT YOU CHOSE ALTERNATIVE (A). If Alternative (B) is chosen and a definition of my disability or incapacity is not contained in this power of attorney, I shall be considered disabled or incapacitated for purposes of this power of attorney if a physician certifies in writing at a date later than the date this power of attorney is executed that, based on the physician's medical examination of me, I am mentally incapable of managing my financial affairs. I authorize the physician who examines me for this purpose to disclose my physical or mental condition to another person for purposes of this power of attorney. A third party who accepts this power of attorney is fully protected from any action taken under this power of attorney that is based on the determination made by a physician of my disability or incapacity. I agree that any third party who receives a copy of this document may act under it. Revocation of the durable power of attorney is not effective as to a third party until the third party receives actual notice of the revocation. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney. If any agent named by me dies, becomes legally disabled, resigns, or refuses to act, I name the following (each to act alone and successively, in the order named) as successor(s) to that agent: __________. Signed this ______ day of __________, 19___ __________________________________ (your signature) State of _______________________ County of ______________________ This document was acknowledged before me on __________________________(date) by _______________________________ (name of principal) _________________________________ (signature of notarial officer) (Seal, if any, of notary) ___________________________________ (printed name) My commission expires: __________ THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT. (b) A statutory durable power of attorney is legally sufficient under this chapter if the wording of the form complies substantially with Subsection (a) of this section, the form is properly completed, and the signature of the principal is acknowledged. [ (c) If the line in front of (N) of the form under Subsection (a) of this section is initialed, an initial on the line in front of any other power does not limit the powers granted by line (N). ] Sec. 491. CONSTRUCTION OF POWERS GENERALLY. The principal, by executing a statutory durable power of attorney that confers authority with respect to any class of transactions, empowers the attorney in fact or agent for that class of transactions to: (1) demand, receive, and obtain by litigation, action, or otherwise any money or other thing of value to which the principal is, may become, or may claim to be entitled; (2) conserve, invest, disburse, or use any money or other thing of value received on behalf of the principal for the purposes intended; (3) contract in any manner with any person, on terms agreeable to the attorney in fact or agent, to accomplish a purpose of a transaction and perform, rescind, reform, release, or modify the contract or another contract made by or on behalf of the principal; (4) execute, acknowledge, seal, and deliver a deed, revocation, mortgage, lease, notice, check, release, or other instrument the agent considers desirable to accomplish a purpose of a transaction; (5) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in an action or litigation relating to the claim; (6) seek on the principal's behalf the assistance of a court to carry out an act authorized by the power of attorney; (7) engage, compensate, and discharge an attorney, accountant, expert witness, or other assistant; (8) keep appropriate records of each transaction, including an accounting of receipts and disbursements; (9) prepare, execute, and file a record, report, or other document the attorney in fact or agent considers necessary or desirable to safeguard or promote the principal's interest under a statute or governmental regulation; (10) reimburse the attorney in fact or agent for expenditures made in exercising the powers granted by the durable power of attorney; and (11) in general, do any other lawful act that the principal may do with respect to a transaction. Sec.492.CONSTRUCTION OF POWER RELATING TO REAL PROPERTY TRANSACTIONS. In a statutory durable power of attorney, the language conferring authority with respect to real property transactions empowers the attorney in fact or agent without further reference to a specific description of the real property to: (1)accept as a gift or as security for a loan or reject, demand, buy, lease, receive, or otherwise acquire an interest in real property or a right incident to real property; (2)sell, exchange, convey with or without covenants, quitclaim, release, surrender, mortgage, encumber, partition, consent to partitioning, subdivide, apply for zoning, rezoning, or other governmental permits, plat or consent to platting, develop, grant options concerning, lease or sublet, or otherwise dispose of an estate or interest in real property or a right incident to real property; (3)release, assign, satisfy, and enforce by litigation, action, or otherwise a mortgage, deed of trust, encumbrance, lien, or other claim to real property that exists or is claimed to exist; (4)do any act of management or of conservation with respect to an interest in real property, or a right incident to real property, owned or claimed to be owned by the principal, including power to: (A)insure against a casualty, liability, or loss; (B)obtain or regain possession or protect the interest or right by litigation, action, or otherwise; (C)pay, compromise, or contest taxes or assessments or apply for and receive refunds in connection with them; [ and ] (D)purchase supplies, hire assistance or labor, or make repairs or alterations in the real property; and (E)manage and supervise an interest in real property, including the mineral estate, by, for example, entering into a lease for oil, gas, and mineral purposes, making contracts for development of the mineral estate, or making pooling and unitization agreements; (5)use, develop, alter, replace, remove, erect, or install structures or other improvements on real property in which the principal has or claims to have an estate, interest, or right; (6)participate in a reorganization with respect to real property or a legal entity that owns an interest in or right incident to real property, receive and hold shares of stock or obligations received in a plan or reorganization, and act with respect to the shares or obligations, including: (A)selling or otherwise disposing of the shares or obligations; (B)exercising or selling an option, conversion, or similar right with respect to the shares or obligations; and (C)voting the shares or obligations in person or by proxy; (7)change the form of title of an interest in or right incident to real property; and (8)dedicate easements or other real property in which the principal has or claims to have an interest to public use, with or without consideration. Sec. 493. CONSTRUCTION OF POWER RELATING TO TANGIBLE PERSONAL PROPERTY TRANSACTIONS. In a statutory durable power of attorney, the language conferring general authority with respect to tangible personal property transactions empowers the attorney in fact or agent to: (1) accept as a gift or as security for a loan, reject, demand, buy, receive, or otherwise acquire ownership or possession of tangible personal property or an interest in tangible personal property; (2) sell, exchange, convey with or without covenants, release, surrender, mortgage, encumber, pledge, hypothecate, create a security interest in, pawn, grant options concerning, lease or sublet to others, or otherwise dispose of tangible personal property or an interest in tangible personal property; (3) release, assign, satisfy, or enforce by litigation, action, or otherwise a mortgage, security interest, encumbrance, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property; and (4) do an act of management or conservation with respect to tangible personal property or an interest in tangible personal property on behalf of the principal, including: (A) insuring against casualty, liability, or loss; (B) obtaining or regaining possession or protecting the property or interest by litigation, action, or otherwise; (C) paying, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments; (D) moving from place to place; (E) storing for hire or on a gratuitous bailment; and (F) using, altering, and making repairs or alterations. Sec. 494. CONSTRUCTION OF POWER RELATING TO STOCK AND BOND TRANSACTIONS. In a statutory durable power of attorney, the language conferring authority with respect to stock and bond transactions empowers the attorney in fact or agent to buy, sell, and exchange stocks, bonds, mutual funds, and all other types of securities and financial instruments other than commodity futures contracts and call and put options on stocks and stock indexes, receive certificates and other evidences of ownership with respect to securities, exercise voting rights with respect to securities in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote. Sec. 495. CONSTRUCTION OF POWER RELATING TO COMMODITY AND OPTION TRANSACTIONS. In a statutory durable power of attorney, the language conferring authority with respect to commodity and option transactions empowers the attorney in fact or agent to buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call and put options on stocks and stock indexes traded on a regulated options exchange and establish, continue, modify, or terminate option accounts with a broker. Sec. 496. CONSTRUCTION OF POWER RELATING TO BANKING AND OTHER FINANCIAL INSTITUTION TRANSACTIONS. In a statutory durable power of attorney, the language conferring authority with respect to banking and other financial institution transactions empowers the attorney in fact or agent to: (1) continue, modify, or terminate an account or other banking arrangement made by or on behalf of the principal; (2) establish, modify, or terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the attorney in fact or agent; (3) hire a safe deposit box or space in a vault; (4) contract to procure other services available from a financial institution as the attorney in fact or agent considers desirable; (5) withdraw by check, order, or otherwise money or property of the principal deposited with or left in the custody of a financial institution; (6) receive bank statements, vouchers, notices, or similar documents from a financial institution and act with respect to them; (7) enter a safe deposit box or vault and withdraw or add to the contents; (8) borrow money at an interest rate agreeable to the attorney in fact or agent and pledge as security real or personal property of the principal necessary to borrow, pay, renew, or extend the time of payment of a debt of the principal; (9) make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, bills of exchange, checks, drafts, or other negotiable or nonnegotiable paper of the principal, or payable to the principal or the principal's order, to receive the cash or other proceeds of those transactions, to accept a draft drawn by a person on the principal, and to pay the principal when due;(10) receive for the principal and act on a sight draft, warehouse receipt, or other negotiable or nonnegotiable instrument; (11) apply for and receive letters of credit, credit cards, and traveler's checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and  (12) consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution. Sec. 497. CONSTRUCTION OF POWER RELATING TO BUSINESS OPERATION TRANSACTIONS. In a statutory durable power of attorney, the language conferring authority with respect to business operating transactions empowers the attorney in fact or agent to: (1) operate, buy, sell, enlarge, reduce, or terminate a business interest; (2) to the extent that an agent is permitted by law to act for a principal and subject to the terms of the partnership agreement: (A) perform a duty or discharge a liability or exercise a right, power, privilege, or option that the principal has, may have, or claims to have under a partnership agreement, whether or not the principal is a general or limited partner; (B) enforce the terms of a partnership agreement by litigation, action, or otherwise; and (C) defend, submit to arbitration, settle, or compromise litigation or an action to which the principal is a party because of membership in the partnership; (3) exercise in person or by proxy or enforce by litigation, action, or otherwise a right, power, privilege, or option the principal has or claims to have as the holder of a bond, share, or other instrument of similar character and defend, submit to arbitration, settle, or compromise a legal proceeding to which the principal is a party because of a bond, share, or similar instrument; (4) with respect to a business owned solely by the principal: (A) continue, modify, renegotiate, extend, and terminate a contract made with an individual or a legal entity, firm, association, or corporation by or on behalf of the principal with respect to the business before execution of the power of attorney; (B) determine: (i) the location of its operation; (ii) the nature and extent of its business; (iii) the methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation; (iv) the amount and types of insurance carried; and (v) the mode of engaging, compensating, and dealing with its accountants, attorneys, and other agents and employees;  (C) change the name or form of organization under which the business is operated and enter into a partnership agreement with other persons or organize a corporation to take over all or part of the operation of the business; and (D) demand and receive money due or claimed by the principal or on the principal's behalf in the operation of the business and control and disburse the money in the operation of the business; (5) put additional capital into a business in which the principal has an interest; (6) join in a plan of reorganization, consolidation, or merger of the business; (7) sell or liquidate a business or part of it at the time and on the terms that the attorney in fact or agent considers desirable; (8) establish the value of a business under a buy-out agreement to which the principal is a party; (9) prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to a business that are required by a governmental agency, department, or instrumentality or that the attorney in fact or agent considers desirable and make related payments; and (10) pay, compromise, or contest taxes or assessments and do any other act that the attorney in fact or agent considers desirable to protect the principal from illegal or unnecessary taxation, fines, penalties, or assessments with respect to a business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney. Sec. 498. CONSTRUCTION OF POWER RELATING TO INSURANCE TRANSACTIONS. In a statutory durable power of attorney, the language conferring authority with respect to insurance and annuity transactions empowers the attorney in fact or agent to: (1) continue, pay the premium or assessment on, modify, rescind, release, or terminate a contract procured by or on behalf of the principal that insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract; (2) procure new, different, or additional contracts of insurance and annuities for the principal or the principal's spouse, children, and other dependents and select the amount, type of insurance or annuity, and mode of payment; (3) pay the premium or assessment on or modify, rescind, release, or terminate a contract of insurance or annuity procured by the attorney in fact or agent; (4) designate the beneficiary of the contract, except that an attorney in fact or agent may be named a beneficiary of the contract or an extension, renewal, or substitute for the contract only to the extent the attorney in fact or agent was named as a beneficiary under a contract procured by the principal before executing the power of attorney; (5) apply for and receive a loan on the security of the contract of insurance or annuity; (6) surrender and receive the cash surrender value; (7) exercise an election; (8) change the manner of paying premiums;(9) change or convert the type of insurance contract or annuity with respect to which the principal has or claims to have a power described in this section; (10) change the beneficiary of a contract of insurance or annuity, except that the attorney in fact or agent may be designated a beneficiary only to the extent authorized by Subdivision (4) of this section; (11) apply for and procure government aid to guarantee or pay premiums of a contract of insurance on the life of the principal; (12) collect, sell, assign, hypothecate, borrow on, or pledge the interest of the principal in a contract of insurance or annuity; and  (13) pay from proceeds or otherwise, compromise or contest, or apply for refunds in connection with a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing because of the tax or assessment. Sec. 499. CONSTRUCTION OF POWER RELATING TO ESTATE, TRUST, AND OTHER BENEFICIARY TRANSACTIONS. In a statutory durable power of attorney, the language conferring authority with respect to estate, trust, and other beneficiary transactions empowers the attorney in fact or agent to act for the principal in all matters that affect a trust, probate estate, guardianship, conservatorship, escrow, custodianship, or other fund from which the principal is, may become, or claims to be entitled, as a beneficiary, to a share or payment, including to: (1) accept, reject, disclaim, receive, receipt for, sell, assign, release, pledge, exchange, or consent to a reduction in or modification of a share in or payment from the fund; (2) demand or obtain by litigation, action, or otherwise money or any other thing of value to which the principal is, may become, or claims to be entitled because of the fund; (3) initiate, participate in, or oppose a legal or judicial proceeding to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;(4) initiate, participate in, or oppose a legal or judicial proceeding to remove, substitute, or surcharge a fiduciary; (5) conserve, invest, disburse, or use anything received for an authorized purpose; and (6) transfer all or part of an interest of the principal in real property, stocks, bonds, accounts with financial institutions, insurance, and other property to the trustee of a revocable trust created by the principal as settlor. Sec. 500. Construction of Power Relating to Claims and Litigation In a statutory durable power of attorney, the language conferring general authority with respect to claims and litigation empowers the attorney in fact or agent to: (1) assert and prosecute before a court or administrative agency a claim, a claim for relief, a counterclaim, or an offset or defend against an individual, a legal entity, or a government, including suits to recover property or other thing of value, to recover damages sustained by the principal, to eliminate or modify tax liability, or to seek an injunction, specific performance, or other relief; (2) bring an action to determine adverse claims, intervene in an action or litigation, and act as amicus curiae; (3) in connection with an action or litigation, procure an attachment, garnishment, libel, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree; (4) in connection with an action or litigation, perform any lawful act the principal could perform, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding of the principal in litigation; (5) submit to arbitration, settle, and propose or accept a compromise with respect to a claim or litigation; (6) waive the issuance and service of process on the principal, accept service of process, appear for the principal, designate persons on whom process directed to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, or receive and execute and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation; (7) act for the principal with respect to bankruptcy or insolvency proceedings, whether voluntary or involuntary, concerning the principal or some other person, with respect to a reorganization proceeding or a receivership or application for the appointment of a receiver or trustee that affects an interest of the principal in real or personal property or other thing of value; and  (8) pay a judgment against the principal or a settlement made in connection with a claim or litigation and receive and conserve money or other thing of value paid in settlement of or as proceeds of a claim or litigation. Sec. 501. CONSTRUCTION OF POWER RELATING TO PERSONAL AND FAMILY MAINTENANCE. In a statutory durable power of attorney, the language conferring authority with respect to personal and family maintenance empowers the attorney in fact or agent to: (1) perform the acts necessary to maintain the customary standard of living of the principal, the principal's spouse and children, and other individuals customarily or legally entitled to be supported by the principal, including providing living quarters by purchase, lease, or other contract, or paying the operating costs, including interest, amortization payments, repairs, and taxes on premises owned by the principal and occupied by those individuals; (2) provide for the individuals described by Subdivision (1) of this section normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, and other current living costs; (3) pay necessary medical, dental, and surgical care, hospitalization, and custodial care for the individuals described by Subdivision (1) of this section; (4) continue any provision made by the principal, for the individuals described by Subdivision (1) of this section, for automobiles or other means of transportation, including registering, licensing, insuring, and replacing the automobiles or other means of transportation; (5) maintain or open charge accounts for the convenience of the individuals described by Subdivision (1) of this section and open new accounts the attorney in fact or agent considers desirable to accomplish a lawful purpose; and (6) continue payments incidental to the membership or affiliation of the principal in a church, club, society, order, or other organization or to continue contributions to those organizations. Sec. 502. CONSTRUCTION OF POWER RELATING TO BENEFITS FROM CERTAIN GOVERNMENTAL PROGRAMS OR CIVIL OR MILITARY SERVICE. In a statutory durable power of attorney, the language conferring authority with respect to benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service empowers the attorney in fact or agent to: (1) execute vouchers in the name of the principal for allowances and reimbursements payable by the United States, a foreign government, or a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described by Section 501(1) of this code, and for shipment of their household effects; (2) take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that purpose; (3) prepare, file, and prosecute a claim of the principal to a benefit or assistance, financial or otherwise, to which the principal claims to be entitled under a statute or governmental regulation; (4) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to any benefits the principal may be entitled to receive; and (5) receive the financial proceeds of a claim of the type described in this section and conserve, invest, disburse, or use anything received for a lawful purpose. Sec.503.CONSTRUCTION OF POWER RELATING TO RETIREMENT PLAN TRANSACTIONS. (a)ĠIn a statutory durable power of attorney, the language conferring authority with respect to retirement plan transactions empowers the attorney in fact or agent to do any lawful act the principal may do with respect to a transaction relating to a retirement plan, including to: (1)apply for service or disability retirement benefits; (2)select payment options under any retirement plan in which the principal participates, including plans for self-employed individuals; (3)designate or change the designation of a beneficiary or benefits payable by a retirement plan, except that an attorney in fact or agent may be named a beneficiary only to the extent the attorney in fact or agent was a named beneficiary under the retirement plan before the durable power of attorney was executed; (4)make voluntary contributions to retirement plans if authorized by the plan; (5)exercise the investment powers available under any self-directed retirement plan; (6)make "rollovers" of plan benefits into other retirement plans; (7)borrow from, sell assets to, and purchase assets from retirement plans if authorized by the plan; (8)waive the right of the principal to be a beneficiary of a joint or survivor annuity if the principal is a spouse who is not employed; (9)receive, endorse, and cash payments from a retirement plan; (10)waive the right of the principal to receive all or a portion of benefits payable by a retirement plan; and (11)request and receive information relating to the principal from retirement plan records. (b)In this section, "retirement plan" means: (1)an employee pension benefit plan as defined by Section 1002, Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. Section 1002), without regard to the provisions of Section (2)(B) of that section; (2)a plan that does not meet the definition of an employee benefit plan under ERISA because the plan does not cover common law employees; (3)a plan that is similar to an employee benefit plan under ERISA, regardless of whether it is covered by Title I of ERISA, including a plan that provides death benefits to the beneficiary of employees; and (4)an individual retirement account or annuity or a self-employed pension plan or similar plan or account. Sec. 504. CONSTRUCTION OF POWER RELATING TO TAX MATTERS. In a statutory durable power of attorney, the language conferring authority with respect to tax matters empowers the attorney in fact or agent to: (1) prepare, sign, and file federal, state, local, and foreign income, gift, payroll, Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Section 2032A, Internal Revenue Code of 1986 (26 U.S.C. Section 2032A), closing agreements, and any power of attorney form required by the Internal Revenue Service or other taxing authority with respect to a tax year on which the statute of limitations has not run and 25 tax years following that tax year; (2) pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;(3) exercise any election available to the principal under federal, state, local, or foreign tax law; and (4) act for the principal in all tax matters for all periods before the Internal Revenue Service and any other taxing authority. Sec. 505. EXISTING INTEREST; FOREIGN INTERESTS. The powers described in Sections 492 through 504 of this code may be exercised equally with respect to an interest the principal has at the time the durable power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the powers are exercised or the durable power of attorney is executed in this state. Sec. 506. UNIFORMITY OF APPLICATION AND CONSTRUCTION. This chapter shall be applied and construed to effect its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.  CHAPTER 135CHAPTER 135, CIVIL PRACTICES AND REMEDIES CODE DURABLE POWER OF ATTORNEY FOR HEALTH CARE (No statutory changes in 1997)  8(#҇ Sec. 135.001. DEFINITIONS. In this chapter: (1) "Adult" means a person 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. (2) "Agent" means an adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care. (3) "Attending physician" means the physician, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient. (4) "Capacity to make health care decisions" means the ability to understand and appreciate the nature and consequences of a health care decision, including the significant benefits and harms of and reasonable alternatives to any proposed health care. (5) "Durable power of attorney for health care" means a document delegating to an agent the authority to make health care decisions as provided by this chapter. (6) "Health care decision" means consent, refusal to consent, or withdrawal of consent to health care, treatment, service, or procedure to maintain, diagnose, or treat an individual's physical or mental condition. (7) "Health care provider" means an individual or facility licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice and includes a physician. (8) "Physician" means: (A) a physician licensed by the Texas State Board of Medical Examiners; or (B) a physician with proper credentials who holds a commission in a branch of the armed services of the United States and who is serving on active duty in this state. (9) "Principal" means an adult who has executed a durable power of attorney for health care. (10) "Residential care provider" means an individual or facility licensed, certified, or otherwise authorized to operate, for profit or otherwise, a residential care home. Sec. 135.002. SCOPE AND DURATION OF AUTHORITY. (a) Subject to this chapter or any express limitation on the authority of the agent contained in the durable power of attorney for health care, the agent may make any health care decision on the principal's behalf that the principal could make but for the principal's lack of capacity to make health care decisions. (b) An agent may exercise authority only if the principal's attending physician certifies in writing and files the certification in the principal's medical record that, based on the attending physician's reasonable medical judgment, the principal lacks capacity to make health care decisions. (c) Notwithstanding any other provisions of this chapter, treatment may not be given to or withheld from the principal if the principal objects regardless of whether, at the time of the objection: (1) a durable power of attorney for health care is in effect; or (2) the principal has the capacity to make health care decisions. (d) The principal's attending physician shall make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing an agent's directive. (e) After consultation with the attending physician and other health care providers, the agent shall make a health care decision: (1) according to the agent's knowledge of the principal's wishes, including the principal's religious and moral beliefs; or(2) if the agent does not know the principal's wishes, according to the agent's assessment of the principal's best interests. (f) Notwithstanding any other provision of this chapter, an agent may not consent to: (1) voluntary inpatient mental health services; (2) convulsive treatment; (3) psychosurgery; (4) abortion; or (5) neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal. (g) The power of attorney is effective indefinitely on execution as provided by this chapter and delivery of the document to the agent, unless it is revoked as provided by this chapter or the principal regains the capacity to make health care decisions. If the durable power of attorney includes an expiration date and on that date the principal lacks the capacity to make health care decisions, the power of attorney continues to be effective until the principal regains the capacity to make health care decisions unless it is revoked as provided by this chapter. Sec. 135.003. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT. A person may not exercise the authority of an agent while the person serves as: (1) the principal's health care provider; (2) an employee of the principal's health care provider unless the person is a relative of the principal; (3) the principal's residential care provider; or (4) an employee of the principal's residential care provider unless the person is a relative of the principal. Sec. 135.004. EXECUTION AND WITNESSES. (a) The durable power of attorney for health care must be signed by the principal in the presence of at least two or more subscribing witnesses. (b) A witness may not, at the time of execution, be: (1) the agent; (2) the principal's health or residential care provider or the provider's employee; (3) the principal's spouse or heir; (4) a person entitled to any part of the estate of the principal on the death of the principal under a will or deed in existence or by operation of law; or (5) any other person who has any claim against the estate of the principal. (c) The witnesses shall affirm that, at the time the durable power of attorney for health care was signed, the principal: (1) appeared to be of sound mind to make a health care decision; (2) stated in the witness's presence that the principal was aware of the nature of the durable power of attorney for health care and that the principal was signing the document voluntarily and free from any duress; and (3) requested that the witness serve as a witness to the principal's execution of the document. (d) If the principal is physically unable to sign, another person may sign the durable power of attorney for health care with the principal's name in the principal's presence and at the principal's express direction. Sec. 135.005. REVOCATION. (a) A durable power of attorney for health care is revoked by: (1) oral or written notification at any time by the principal to the agent or a licensed or certified health or residential care provider or by any other act evidencing a specific intent to revoke the power, without regard to the principal's mental state, competency, or capacity to make health care decisions; (2) execution by the principal of a subsequent durable power of attorney for health care; or (3) the divorce of the principal and spouse, if the spouse is the principal's agent. (b) A principal's licensed or certified health or residential care provider who is informed of or provided with a revocation of a durable power of attorney for health care shall immediately record the revocation in the principal's medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal's care. Sec. 135.006. APPOINTMENT OF GUARDIAN. (a) On motion filed in connection with a petition for appointment of a guardian or, if a guardian has been appointed, on petition of the guardian, a probate court shall determine whether to suspend or revoke the authority of the agent. (b) The court shall consider the preferences of the principal as expressed in the durable power of attorney for health care. (c) During the pendency of the court's determination under Subsection (a), the guardian has the sole authority to make any health care decisions unless the court orders otherwise. If a guardian has not been appointed, the agent has the authority to make any health care decisions unless the court orders otherwise. (d) A person, including any attending physician or health or residential care provider, who does not have actual knowledge of the appointment of a guardian or an order of the court granting authority to someone other than the agent to make health care decisions is not subject to criminal or civil liability and has not engaged in unprofessional conduct for implementing an agent's health care decision. Sec. 135.007. DISCLOSURE OF MEDICAL INFORMATION. Subject to any limitations in the durable power of attorney for health care, an agent may, for the purpose of making a health care decision: (1) request, review, and receive any information, oral or written, regarding the principal's physical or mental health, including medical and hospital records; (2) execute a release or other document required to obtain the information; and (3) consent to the disclosure of the information. Sec. 135.008. DUTY OF HEALTH OR RESIDENTIAL CARE PROVIDER. (a) A principal's health or residential care provider and an employee of the provider who knows of the existence of the principal's durable power of attorney for health care shall follow a directive of the principal's agent to the extent it is consistent with the desires of the principal, this chapter, and the durable power of attorney for health care. (b) The attending physician does not have a duty to verify that the agent's directive is consistent with the principal's wishes or religious or moral beliefs. (c) A principal's health or residential care provider who finds it impossible to follow a directive by the agent because of a conflict with this chapter or the durable power of attorney for health care shall inform the agent as soon as is reasonably possible. The agent may select another attending physician. (d) This chapter may not be construed to require a health or residential care provider who is not a physician to act in a manner contrary to a physician's order. Sec. 135.009. DISCRIMINATION RELATING TO EXECUTION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. A health or residential care provider, health care service plan, insurer issuing disability insurance, self-insured employee benefit plan, or nonprofit hospital service plan may not: (1) charge a person a different rate solely because the person has executed a durable power of attorney for health care; (2) require a person to execute a durable power of attorney for health care before: (A) admitting the person to a hospital, nursing home, or residential care home; (B) insuring the person; or (C) allowing the person to receive health or residential care; or (3) refuse health or residential care to a person solely because the person has executed a durable power of attorney for health care. Sec. 135.010. LIMITATION ON LIABILITY. (a) An agent is not subject to criminal or civil liability for a health care decision if the decision is made in good faith under the terms of the durable power of attorney for health care and the provisions of this chapter. (b) An attending physician, health or residential care provider, or a person acting as an agent for or under the physician's or provider's control is not subject to criminal or civil liability and has not engaged in unprofessional conduct for an act or omission if the act or omission: (1) is done in good faith under the terms of the durable power of attorney for health care, the directives of the agent, and the provisions of this chapter; and (2) does not constitute a failure to exercise due care in the provision of health care services. (c) An attending physician, health or residential care provider, or person acting as an agent for or under the physician's or provider's control has not engaged in unprofessional conduct for: (1) failure to act as required by the directive of an agent or a durable power of attorney for health care if the physician, provider, or person was not provided with a copy of the durable power of attorney for health care or had no knowledge of a directive; or (2) acting as required by an agent's directive if the durable power of attorney for health care has expired or been revoked but the physician, provider, or person does not have knowledge of the expiration or revocation. Sec. 135.011. LIABILITY FOR HEALTH CARE COSTS. Liability for the cost of health care provided as a result of the agent's decision is the same as if the health care were provided as a result of the principal's decision. Sec. 135.012. NATURAL DEATH ACT. To the extent that a durable power of attorney for health care conflicts with a directive or treatment decision executed under the Natural Death Act (Chapter 672, Health and Safety Code), the instrument executed later in time controls. A physician who withholds or withdraws life-sustaining procedures from a principal with a terminal condition as required by an agent's directive is not required to comply with the Natural Death Act. Sec. 135.013. ENFORCEABILITY OF DURABLE POWER OF ATTORNEY EXECUTED IN ANOTHER JURISDICTION. This chapter does not limit the enforceability of a durable power of attorney for health care or similar instrument executed in another state or jurisdiction if the instrument complies with the law of the state or jurisdiction. Sec. 135.014. DISCLOSURE STATEMENT. A durable power of attorney for health care is not effective unless the principal, before executing the durable power of attorney for health care, signs a statement that the principal has received a disclosure statement and has read and understood its contents. Sec. 135.015. FORM OF DISCLOSURE STATEMENT. The disclosure statement must be in substantially the following form: INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE  THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS: Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Because "health care" means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent's instructions or allow you to be transferred to another physician. Your agent's authority begins when your doctor certifies that you lack the capacity to make health care decisions. Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had. It is important that you discuss this document with your physician or other health care provider before you sign it to make sure that you understand the nature and range of decisions that may be made on your behalf. If you do not have a physician, you should talk with someone else who is knowledgeable about these issues and can answer your questions. You do not need a lawyer's assistance to complete this document, but if there is anything in this document that you do not understand, you should ask a lawyer to explain it to you. The person you appoint as agent should be someone you know and trust. The person must be 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.  You should inform the person you appoint that you want the person to be your health care agent. You should discuss this document with your agent and your physician and give each a signed copy. You should indicate on the document itself the people and institutions who have signed copies. Your agent is not liable for health care decisions made in good faith on your behalf. Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so and treatment cannot be given to you or stopped over your objection. You have the right to revoke the authority granted to your agent by informing your agent or your health or residential care provider orally or in writing or by your execution of a subsequent durable power of attorney for health care. Unless you state otherwise, your appointment of a spouse dissolves on divorce. This document may not be changed or modified. If you want to make changes in the document, you must make an entirely new one. You may wish to designate an alternate agent in the event that your agent is unwilling, unable, or ineligible to act as your agent. Any alternate agent you designate has the same authority to make health care decisions for you. THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO OR MORE QUALIFIED WITNESSES. THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES: (1) the person you have designated as your agent; (2) your health or residential care provider or an employee of your health or residential care provider; (3) your spouse; (4) your lawful heirs or beneficiaries named in your will or a deed; or (5) creditors or persons who have a claim against you. Sec. 135.016. FORM OF DURABLE POWER OF ATTORNEY. The durable power of attorney for health care must be in substantially the following form: DURABLE POWER OF ATTORNEY FOR HEALTH CARE  DESIGNATION OF HEALTH CARE AGENT. I, __________ (insert your name) appoint: Name:___________________________________Address:_________________________________ Phone________________________ as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This durable power of attorney for health care takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician. LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS: ________________________________________ ________________________________________ DESIGNATION OF ALTERNATE AGENT. (You are not required to designate an alternate agent but you may do so. An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent. If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.) If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order: A. First Alternate Agent Name:___________________________________ Address:_________________________________ Phone_________ B. Second Alternate Agent Name:___________________________________ Address:_________________________________ Phone_________ The original of this document is kept at_______________________________________ The following individuals or institutions have signed copies: Name:___________________________________ Address:_________________________________ ________________________________________ Name:___________________________________ Address:_________________________________ ________________________________________ DURATION. I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself. (IF APPLICABLE) This power of attorney ends on the following date:____ PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attorney for health care. ACKNOWLEDGMENT OF DISCLOSURE STATEMENT. I have been provided with a disclosure statement explaining the effect of this document. I have read and understand that information contained in the disclosure statement. (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.) I sign my name to this durable power of attorney for health care on ____ day of _________, 19 ___, at _________________________________________ (City and State) _________________________________________ (Signature) _________________________________________ (Print Name) STATEMENT OF WITNESSES. I declare under penalty of perjury that the principal has identified himself or herself to me, that the principal signed or acknowledged this durable power of attorney in my presence, that I believe the principal to be of sound mind, that the principal has affirmed that the principal is aware of the nature of the document and is signing it voluntarily and free from duress, that the principal requested that I serve as witness to the principal's execution of this document, that I am not the person appointed as agent by this document, and that I am not a provider of health or residential care, an employee of a provider of health or residential care, the operator of a community care facility, or an employee of an operator of a health care facility.  I declare that I am not related to the principal by blood, marriage, or adoption and that to the best of my knowledge I am not entitled to any part of the estate of the principal on the death of the principal under a will or by operation of law. Witness Signature:__________________________ Print Name:_______________________________ Date:___________________________________ Address:_________________________________ Witness Signature:__________________________ Print Name:_______________________________ Date:___________________________________ Address:_________________________________ Sec. 135.017. CIVIL ACTION. (a) A person who is a near relative of the principal or a responsible adult who is directly interested in the principal, including a guardian, social worker, physician, or clergyman, may bring an action in district court to request that the durable power of attorney for health care be revoked because the principal, at the time the durable power of attorney for health care was signed: (1) was not of sound mind to make a health care decision; or (2) was under duress, fraud, or undue influence. (b) The action may be brought in the county of the principal's residence or the residence of the person bringing the action. (c) During the pendency of the action, the authority of the agent to make health care decisions continues in effect unless the district court orders otherwise. Sec. 135.018. OTHER RIGHTS OR RESPONSIBILITIES NOT AFFECTED. This chapter does not limit or impair any legal right or responsibility that any person, including a physician or health or residential care provider, may have to make or implement health care decisions on behalf of a person. CHAPTER 672CHAPTER 672, HEALTH AND SAFETY CODE NATURAL DEATH ACT (DIRECTIVES TO PHYSICIANS) (1997 Additions are italicized and underlined; [ 1997 Deletions are bracketed and struckout ])  8(#҇ Sec. 672.001. SHORT TITLE. This chapter may be cited as the Natural Death Act. Sec. 672.002. DEFINITIONS. In this chapter: (1) "Attending physician" means the physician who has primary responsibility for a patient's treatment and care. (2) "Competent" means possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision. (3) "Declarant" means a person who has executed or issued a directive under this chapter. (4) "Directive" means an instruction made under Section 672.003, 672.005, or 672.006 to withhold or withdraw life-sustaining procedures in the event of a terminal condition. (5) "Incompetent" means lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision. (6) "Life-sustaining procedure" means a medical procedure or intervention that uses mechanical or other artificial means to sustain, restore, or supplant a vital function, and only artificially postpones the moment of death of a patient in a terminal condition whose death is imminent or will result within a relatively short time without the application of the procedure. The term does not include the administration of medication or the performance of a medical procedure considered to be necessary to provide comfort or care or to alleviate pain. (7) "Physician" means a physician licensed by the Texas State Board of Medical Examiners or a properly credentialed physician who holds a commission in the uniformed services of the United States and who is serving on active duty in this state. (8) "Qualified patient" means a patient with a terminal condition that has been diagnosed and certified in writing by the attending physician and one other physician who have personally examined the patient. (9) "Terminal condition" means an incurable or irreversible condition caused by injury, disease, or illness that would produce death without the application of life-sustaining procedures, according to reasonable medical judgment, and in which the application of life-sustaining procedures serves only to postpone the moment of the patient's death. Sec. 672.003. WRITTEN DIRECTIVE BY COMPETENT ADULT; NOTICE TO PHYSICIAN. (a) A competent adult may at any time execute a written directive. (b) The declarant must sign the directive in the presence of two witnesses, and those witnesses must sign the directive. (c)A witness may not be: (1)a person designated by the declarant to make a treatment decision; (2)a person related to the declarant by blood or marriage; (3)a personĠ[ (2) ]entitled to any part of the declarant's estate after the declarant's death under a will or codicil executed by the declarant or by operation of law; (4)Ġ[ (3) ]the attending physician; (5)Ġ[ (4) ]an employee of the attending physician; (6)Ġ[ (5) ]an employee of a health care facility in which the declarant is a patient if the employee is providing direct patient care to the declarant or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility [ is directly involved in the financial affairs of the facility ]; [ (6)a patient in a health care facility in which the declarant is a patient; ] or (7)a person who, at the time the written directive is executed or if the directive is a nonwritten directive issued under Section 672.005, at the time the nonwritten directive is issued, has a claim against any part of the declarant's estate after the declarant's death. (d) A declarant may include in a directive directions other than those provided by Section 672.004 and may designate in a directive a person to make a treatment decision for the declarant in the event the declarant becomes comatose, incompetent, or otherwise mentally or physically incapable of communication. (e) A declarant shall notify the attending physician of the existence of a written directive. If the declarant is comatose, incompetent, or otherwise mentally or physically incapable of communication, another person may notify the attending physician of the existence of the written directive. The attending physician shall make the directive a part of the declarant's medical record. # D\  P  P# Sec.672.004.FORM OF WRITTEN DIRECTIVE. A written directive may be in the following form: "DIRECTIVE TO PHYSICIANS  "Directive made this __________ day of __________ (month, year). "I __________, being of sound mind, wilfully and voluntarily make known my desire that my life shall not be artificially prolonged under the circumstances set forth in this directive. "1.If at any time I should have an incurable or irreversible condition caused by injury, disease, or illness certified to be a terminal condition by two physicians, and if the application of life-sustaining procedures would serve only to artificially postpone the moment of my death, and if my attending physician determines that my death is imminent or will result within a relatively short time without the application of life-sustaining procedures, I direct that those procedures be withheld or withdrawn, and that I be permitted to die naturally. "2.In the absence of my ability to give directions regarding the use of those life-sustaining procedures, it is my intention that this directive be honored by my family and physicians as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from that refusal. "3.If I have been diagnosed as pregnant and that diagnosis is known to my physician, this directive has no effect during my pregnancy. "4.This directive is in effect until it is revoked. "5.I understand the full import of this directive and I am emotionally and mentally competent to make this directive. "6.I understand that I may revoke this directive at any time. "Signed ___ (City, County, and State of Residence) I am not a person designated by the declarant to make a treatment decision. I am not related to the declarant by blood or marriage. I would not be entitled to any portion of the declarant's estate on the declarant's death. I am not the attending physician of the declarant or an employee of the attending physician. [ I am not a patient in the health care facility in which the declarant is a patient. ] I have no claim against any portion of the declarant's estate on the declarant's death. Furthermore, if I am an employee of a health care facility in which the declarant is a patient, I am not involved in providing direct patient care to the declarant and am not an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility [ directly involved in the financial affairs of the health facility ]. "Witness ___ "Witness ___"# D\  P  P# Sec. 672.005. ISSUANCE OF NONWRITTEN DIRECTIVE BY COMPETENT ADULT QUALIFIED PATIENT. Č(a) A competent qualified patient who is an adult may issue a directive by a nonwritten means of communication. (b) A declarant must issue the nonwritten directive in the presence of the attending physician and two witnesses. The witnesses must possess the same qualifications as are required by Section 672.003(c). (c) The physician shall make the fact of the existence of the directive a part of the declarant's medical record and the witnesses shall sign the entry in the medical record. Sec. 672.006. EXECUTION OF DIRECTIVE ON BEHALF OF PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may execute a directive on behalf of a qualified patient who is younger than 18 years of age: (1) the patient's spouse, if the spouse is an adult; (2) the patient's parents; or (3) the patient's legal guardian. Sec. 672.007. PATIENT DESIRE SUPERSEDES DIRECTIVE. The desire of a competent qualified patient, including a competent qualified patient younger than 18 years of age, supersedes the effect of a directive. Sec. 672.008. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section applies when an adult qualified patient has executed or issued a directive and is comatose, incompetent, or otherwise mentally or physically incapable of communication. (b) If the adult qualified patient has designated a person to make a treatment decision as authorized by Section 672.003(d), the attending physician and the designated person may make a treatment decision to withhold or withdraw life-sustaining procedures from the patient. (c) If the adult qualified patient has not designated a person to make a treatment decision, the attending physician shall comply with the directive unless the physician believes that the directive does not reflect the patient's present desire. Sec. 672.009. 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 comatose, incompetent, or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian may make a treatment decision that may include a decision to withhold or withdraw life-sustaining procedures from the patient. (b) If the patient does not have a legal guardian, the attending physician and at least two persons, if available, of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining procedures: (1) the patient's spouse; (2) a majority of 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\  P  P#(d)A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the attending physician [ made in the presence of at least two witnesses who possess the same qualifications as are required by Section 672.003(c) ]. (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 witnessed by another physician who is not involved in the treatment of the patient. (f)Ġ[ (e) ]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 procedures. # D\  P  P# Sec. 672.010. PATIENT CERTIFICATION AND PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending physician who has been notified of the existence of a directive shall provide for the declarant's certification as a qualified patient on diagnosis of a terminal condition. (b) Before withholding or withdrawing life-sustaining procedures from a qualified patient under this chapter, the attending physician must: (1) determine that the patient's death is imminent or will result within a relatively short time without application of those procedures; (2) note that determination in the patient's medical record; and (3) determine that the steps proposed to be taken are in accord with this chapter and the patient's existing desires. Sec. 672.011. DURATION OF DIRECTIVE. A directive is effective until it is revoked as prescribed by Section 672.012. Sec. 672.012. REVOCATION OF DIRECTIVE. (a) A declarant may revoke a directive at any time without regard to the declarant's mental state or competency. A directive may be revoked by: (1) the declarant or someone in the declarant's presence and at the declarant's direction canceling, defacing, obliterating, burning, tearing, or otherwise destroying the directive; (2) the declarant signing and dating a written revocation that expresses the declarant's intent to revoke the directive; or (3) the declarant orally stating the declarant's intent to revoke the directive. (b) A written revocation executed as prescribed by Subsection (a)(2) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of its existence or mails the revocation to the attending physician. The attending physician or the physician's designee shall record in the patient's medical record the time and date when the physician received notice of the written revocation and shall enter the word "VOID" on each page of the copy of the directive in the patient's medical record. (c) An oral revocation issued as prescribed by Subsection (a)(3) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of the revocation. The attending physician or the physician's designee shall record in the patient's medical record the time, date, and place of the revocation, and, if different, the time, date, and place that the physician received notice of the revocation. The attending physician or the physician's designees shall also enter the word "VOID" on each page of the copy of the directive in the patient's medical record. (d) Except as otherwise provided by this chapter, a person is not civilly or criminally liable for failure to act on a revocation made under this section unless the person has actual knowledge of the revocation. Sec. 672.013. REEXECUTION OF DIRECTIVE. A declarant may at any time reexecute a directive in accordance with the procedures prescribed by Section 672.003, including reexecution after the declarant is diagnosed as having a terminal condition. Sec. 672.014. EFFECT OF DIRECTIVE ON INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has executed or issued a directive under this chapter does not: (1) restrict, inhibit, or impair in any manner the sale, procurement, or issuance of a life insurance policy to that person; or (2) modify the terms of an existing life insurance policy. (b) Notwithstanding the terms of any life insurance policy, the fact that life-sustaining procedures are withheld or withdrawn from an insured qualified patient under this chapter does not legally impair or invalidate that person's life insurance policy. (c) A physician, health facility, health provider, insurer, or health care service plan may not require a person to execute or issue a directive as a condition for obtaining insurance for health care services or receiving health care services. (d) The fact that a person has executed or issued or failed to execute or issue a directive under this chapter may not be considered in any way in establishing insurance premiums. Sec. 672.015. LIMITATION OF LIABILITY FOR WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A physician or health facility that causes life-sustaining procedures to be withheld or withdrawn from a qualified patient in accordance with this chapter is not civilly liable for that action unless negligent. (b) A health professional, acting under the direction of a physician, who participates in withholding or withdrawing life-sustaining procedures from a qualified patient in accordance with this chapter is not civilly liable for that action unless negligent. (c) A physician, or a health professional acting under the direction of a physician, who participates in withholding or withdrawing life-sustaining procedures from a qualified patient in accordance with this chapter is not criminally liable or guilty of unprofessional conduct as a result of that action unless negligent. Sec. 672.016. LIMITATION OF LIABILITY FOR FAILURE TO EFFECTUATE DIRECTIVE. (a) A physician, health care facility, or health care professional who has no knowledge of a directive is not civilly or criminally liable for failing to act in accordance with the directive. (b) A physician, or a health professional acting under the direction of a physician, is not civilly or criminally liable for failing to effectuate a qualified patient's directive. (c) If an attending physician refuses to comply with a directive or treatment decision, the physician shall make a reasonable effort to transfer the patient to another physician. Sec. 672.017. HONORING DIRECTIVE DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an offense under Section 22.08, Penal Code, by withholding or withdrawing life-sustaining procedures from a qualified patient in accordance with this chapter. Sec. 672.018. CRIMINAL PENALTY; PROSECUTION. (a) A person commits an offense if the person intentionally conceals, cancels, defaces, obliterates, or damages another person's directive without that person's consent. An offense under this subsection is a Class A misdemeanor. (b) A person is subject to prosecution for criminal homicide under Chapter 19, Penal Code, if the person, with the intent to cause life-sustaining procedures to be withheld or withdrawn from another person contrary to the other person's desires, falsifies or forges a directive or intentionally conceals or withholds personal knowledge of a revocation and thereby directly causes life-sustaining procedures to be withheld or withdrawn from the other person with the result that the other person's death is hastened. Sec. 672.019. PREGNANT PATIENTS. A person may not withdraw or withhold life-sustaining procedures under this chapter from a pregnant patient. Sec. 672.020. MERCY KILLING NOT CONDONED. This chapter does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying as provided by this chapter. Sec. 672.021. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. This chapter does not impair or supersede any legal right or responsibility a person may have to effect the withholding or withdrawal of life-sustaining procedures in a lawful manner. SECTION 677A TEX. PROB. CODE ANN.  677A, 679 DECLARATIONS OF GUARDIAN (No statutory changes in 1997)  8(#҇ Sec. 677A. Written Declarations by Certain Parents to Appoint Guardians for Their Children. (a) A written declaration appointing an eligible person to be guardian of the person of the parent's child under Section 676(d) or 677(b) of this code must be attested to by at least two credible witnesses 14 years of age or older who are not named as guardian or alternate guardian in the declaration. (b) The declaration must have attached a self-proving affidavit signed by the declarant and the witnesses attesting to the competence of the declarant and the execution of the declaration. A properly executed and witnessed declaration and affidavit are prima facie evidence that the declarant was competent at the time the declarant executed the declaration and that the guardian named in the declaration would serve the best interests of the ward. (c) The declaration and affidavit may be filed with the court at any time after the application for appointment of a guardian is filed and before a guardian is appointed. If the designated guardian does not qualify, is dead, refuses to serve, resigns, or dies after being appointed guardian, or is otherwise unavailable to serve as guardian, the court shall appoint the next eligible designated alternate guardian named in the declaration. If the guardian and all alternate guardians do not qualify, are dead, refuse to serve, or later die or resign, the court shall appoint another person to serve as otherwise provided by this code. (d) The declarant may revoke a declaration in any manner provided for the revocation of a will under Section 63 of this code, including the subsequent reexecution of the declaration in the manner required for the original declaration. (e) A declaration and affidavit may be in any form adequate to clearly indicate the declarant's intention to designate a guardian for the declarant's child. The following form may, but need not, be used: DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT OF MY DEATH  I, __________, make this Declaration to appoint as guardian for my child or children, listed as follows, in the event of my death: __________________________________________ __________________________________________ __________________________________________ (add blanks as appropriate) I designate __________ to serve as guardian of the person of my (child or children), __________ as first alternate guardian of the person of my (child or children), __________ as second alternate guardian of the person of my (child or children), and __________ as third alternate guardian of the person of my (child or children). (If applicable) I designate __________ to serve as guardian of the estate of my (child or children), __________ as first alternate guardian of the estate of my (child or children), __________ as second alternate guardian of the estate of my (child or children), and __________ as third alternate guardian of the estate of my (child or children). If any guardian or alternate guardian dies, does not qualify, or resigns, the next named alternate guardian becomes guardian of my (child or children). Signed this ___ day of __________, 19___. ___________________ Declarant ___________________ ___________________ Witness Witness 2SELF-PROVING AFFIDAVIT Before me, the undersigned authority, on this date personally appeared the declarant, and ____________ and ____________ as witnesses, and all being duly sworn, the declarant said that the above instrument was his or her Declaration of Appointment of Guardian for the Declarant's Children in the Event of Declarant's Death and that the declarant had made and executed it for the purposes expressed in the declaration. The witnesses declared to me that they are each 14 years of age or older, that they saw the declarant sign the declaration, that they signed the declaration as witnesses, and that the declarant appeared to them to be of sound mind. _____________ Declarant _____________ _________________ Affiant Affiant Subscribed and sworn to before me by the above named declarant and affiants on this ____ day of __________, 19__. ______________________________________ Notary Public in and for the State of Texas My Commission expires:__________________ Sec. 679. Designation of Guardian Before Need Arises . (a) A person other than an incapacitated person may designate by a written declaration persons to serve as guardian of the person of the declarant or the estate of the declarant if the declarant becomes incapacitated. The declaration must be attested to by at least two credible witnesses 14 years of age or older who are not named as guardian or alternate guardian in the declaration. (b) A declarant may, in the declaration, disqualify named persons from serving as guardian of the declarant's person or estate, and the persons named may not be appointed guardian under any circumstances. (c) The declaration must have attached a self-proving affidavit signed by the declarant and the witnesses attesting to the competence of the declarant and the execution of the declaration. A properly executed and witnessed declaration and affidavit are prima facie evidence that the declarant was competent at the time the declarant executed the declaration and that the guardian named in the declaration would serve the best interests of the ward. (d) The declaration and affidavit may be filed with the court at any time after the application for appointment of a guardian is filed and before a guardian is appointed. Unless the court finds that the person designated in the declaration to serve as guardian is disqualified or would not serve the best interests of the ward, the court shall appoint the person as guardian in preference to those otherwise entitled to serve as guardian under this code. If the designated guardian does not qualify, is dead, refuses to serve, resigns, or dies after being appointed guardian, or is otherwise unavailable to serve as guardian, the court shall appoint the next eligible designated alternate guardian named in the declaration. If the guardian and all alternate guardians do not qualify, are dead, refuse to serve, or later die or resign, the court shall appoint another person to serve as otherwise provided by this code. (e) The declarant may revoke a declaration in any manner provided for the revocation of a will under Section 63 of this code, including the subsequent reexecution of the declaration in the manner required for the original declaration.  (f) If a declarant designates the declarant's spouse to serve as guardian under this section, and the declarant is subsequently divorced from that spouse before a guardian is appointed, the provision of the declaration designating the spouse has no effect. (g) A declaration and affidavit may be in any form adequate to clearly indicate the declarant's intention to designate a guardian. The following forms may, but need not, be used: DECLARATION OF GUARDIAN IN THE EVENT OF LATER INCAPACITY OR NEED OF GUARDIAN  I, __________, make this Declaration of Guardian, to operate if the need for a guardian for me later arises. 1. I designate __________ to serve as guardian of my person, __________ as first alternate guardian of my person, __________ as second alternate guardian of my person, and __________ as third alternate guardian of my person. 2. I designate __________ to serve as guardian of my estate, __________ as first alternate guardian of my estate, __________ as second alternate guardian of my estate, and __________ as third alternate guardian of my estate. 3. If any guardian or alternate guardian dies, does not qualify, or resigns, the next named alternate guardian becomes my guardian. 4. I expressly disqualify the following persons from serving as guardian of my person: __________, __________, and __________. 5. I expressly disqualify the following persons from serving as guardian of my estate: __________, __________, and __________. Signed this ___ day of __________, 19___. ________________ Declarant ________________ _______________ Witness Witness SELF-PROVING AFFIDAVIT Before me, the undersigned authority, on this date personally appeared the declarant, and ____________ and ____________ as witnesses, and all being duly sworn, the declarant said that the above instrument was his or her Declaration of Guardian and that the declarant had made and executed it for the purposes expressed in the declaration. The witnesses declared to me that they are each 14 years of age or older, that they saw the declarant sign the declaration, that they signed the declaration as witnesses, and that the declarant appeared to them to be of sound mind. ________________ Declarant ________________ ____________________ Affiant Affiant Subscribed and sworn to before me by the above named declarant and affiants on this ____ day of __________, 19__. ___________________________________ Notary Public in and for the State of Texas My Commission expires _______________ CHAPTER 137 CHAPTER 137, CIVIL PRACTICES AND REMEDIES CODE DECLARATIONS FOR MENTAL HEALTH TREATMENT (New statute for 1997)  8(#҇CHAPTER 137.DECLARATION FOR MENTAL HEALTH TREATMENT Sec.137.001.DEFINITIONS. In this chapter: (1)"Adult" means a person 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. (2)"Attending physician" means the physician, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient. (3)"Declaration for mental health treatment" means a document making a declaration of preferences or instructions regarding mental health treatment. (4)"Health care provider" means an individual or facility licensed, certified, or otherwise authorized to administer health care or treatment, for profit or otherwise, in the ordinary course of business or professional practice and includes a physician or other health care provider, a residential care provider, or an inpatient mental health facility as defined by Section 571.003, Health and Safety Code. (5)"Incapacitated" means that, in the opinion of the court in a guardianship proceeding under Chapter XIII, Texas Probate Code, or in a medication hearing under Section 574.106, Health and Safety Code, a person lacks the ability to understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and lacks the ability to make mental health treatment decisions because of impairment. (6)"Mental health treatment" means electroconvulsive or other convulsive treatment, treatment of mental illness with psychoactive medication as defined by Section 574.101, Health and Safety Code, or emergency mental health treatment. (7)"Principal" means a person who has executed a declaration for mental health treatment. Sec.137.002.PERSONS WHO MAY EXECUTE DECLARATION FOR MENTAL HEALTH TREATMENT; PERIOD OF VALIDITY. (a)An adult who is not incapacitated may execute a declaration for mental health treatment. The preferences or instructions may include consent to or refusal of mental health treatment. (b)A declaration for mental health treatment is effective on execution as provided by this chapter. Except as provided by Subsection (c), a declaration for mental health treatment expires on the third anniversary of the date of its execution or when revoked by the principal, whichever is earlier. (c)If the declaration for mental health treatment is in effect and the principal is incapacitated on the third anniversary of the date of its execution, the declaration remains in effect until the principal is no longer incapacitated. Sec.137.003.EXECUTION AND WITNESSES. (a)A declaration for mental health treatment must be signed by the principal in the presence of two or more subscribing witnesses. (b)A witness may not, at the time of execution, be: (1)the principal's health or residential care provider or an employee of that provider; (2)the operator of a community health care facility providing care to the principal or an employee of an operator of the facility; (3)a person related to the principal by blood, marriage, or adoption; (4)a person entitled to any part of the estate of the principal on the death of the principal under a will, trust, or deed in existence or who would be entitled to any part of the estate by operation of law if the principal died intestate; or (5)a person who has a claim against the estate of the principal. (c)For a witness's signature to be effective, the witness must sign a statement affirming that, at the time the declaration for mental health treatment was signed, the principal: (1)appeared to be of sound mind to make a mental health treatment decision; (2)has stated in the witness's presence that the principal was aware of the nature of the declaration for mental health treatment and that the principal was signing the document voluntarily and free from any duress; and (3)requested that the witness serve as a witness to the principal's execution of the document. Sec.137.004.HEALTH CARE PROVIDER TO ACT IN ACCORDANCE WITH DECLARATION FOR MENTAL HEALTH TREATMENT. A physician or other health care provider shall act in accordance with the declaration for mental health treatment when the principal has been found to be incapacitated. A physician or other provider shall continue to seek and act in accordance with the principal's informed consent to all mental health treatment decisions if the principal is capable of providing informed consent. Sec.137.005.LIMITATION ON LIABILITY. (a)An attending physician, health or residential care provider, or person acting for or under an attending physician's or health or residential care provider's control is not subject to criminal or civil liability and has not engaged in professional misconduct for an act or omission if the act or omission is done in good faith under the terms of a declaration for mental health treatment. (b)An attending physician, health or residential care provider, or person acting for or under an attending physician's or health or residential care provider's control does not engage in professional misconduct for: (1)failure to act in accordance with a declaration for mental health treatment if the physician, provider, or other person: (A)was not provided with a copy of the declaration; and (B)had no knowledge of the declaration after a good faith attempt to learn of the existence of a declaration; or (2)acting in accordance with a directive for mental health treatment after the directive has expired or has been revoked if the physician, provider, or other person does not have knowledge of the expiration or revocation. Sec.137.006.DISCRIMINATION RELATING TO EXECUTION OF DECLARATION FOR MENTAL HEALTH TREATMENT. A health or residential care provider, health care service plan, insurer issuing disability insurance, self-insured employee benefit plan, or nonprofit hospital service plan may not: (1)charge a person a different rate solely because the person has executed a declaration for mental health treatment; (2)require a person to execute a declaration for mental health treatment before: (A)admitting the person to a hospital, nursing home, or residential c