Texas Q and A

Ten commonly asked questions about PAD’s for Texas

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in October 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  Chapter 137 of the Texas Civil Practice and Remedies Code allows you to write advance instructions for psychiatric treatment in a “Declaration for Mental Health Treatment”, which is valid for three years. Disability Rights Texas has published a helpful guide to making a Declaration for Mental Health Treatment, including a form.  Additionally, a separate part of the Texas statutes, Chapter 166 of the Health and Safety Code, allows you to appoint an agent to make any health care decisions, including mental health care decisions, in the event that you are unable to make those decisions yourself.  This is called a Power of Attorney.  Although there is no mandatory form, it is recommended that you use either Disability Rights Texas’ form or the forms printed in the statutes themselves.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  The statute allows you to write advance instructions about psychoactive medication, electroconvulsive therapy (ECT) and/or “emergency mental health treatment”, which could include hospitalization.  You may use your Declaration to refuse consent to any or all of these items.  For more, see Disability Rights Texas’ guide.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your Declaration must be signed by two competent adult witnesses, who must attest that you were of “sound mind” when creating it, and understood its effect.  The witnesses cannot be employees of your health care provider, your relatives or beneficiaries of your estate.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?  

Yes, as explained above.  If you wish to appoint one agent for mental health care and another for other health care matters, you should use Disability Rights Texas’ form for all mental health matters, and the separate form in Chapter 166 of the statutes to appoint your other agent, cross referencing both documents to each other.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes. Your agent may make any health care decision that you could make if competent, including any mental health care decision.  However, you can limit the power of your agent (for example, you can state that your agent is empowered only to make decisions about medication and not about hospitalization).  You may also place a time limit on your agent’s power.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?   

Your agent must use substituted judgment as far as possible, in particular by following any instructions you have documented in a Declaration for Mental Health Treatment.  If it is not possible to discern your wishes, your agent must act in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

If you have made a Declaration for Mental Health Treatment, it becomes effective only when a court has decided that you lack the ability to understand the nature and consequences of any proposed psychiatric treatment.  In contrast, all that is required for an agent’s instructions to be followed is that your doctor certifies that you lack the competence to make your own decisions.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  Your providers may decline to follow your Declaration in an emergency, or if you are committed under the Texas involuntary treatment statutes.  Additionally, your provider may decline to follow your Declaration if he/she regards it as inconsistent with professional standards, but must attempt to find alternative care for you in that situation.  The statutes do not state when your provider may decline to follow your agent’s instructions, but the rules are likely to be the same as above.

10.  How long does my PAD remain valid?

The rules governing validity are different for Declarations and appointment of agents.  A Declaration for Mental Health Treatment is valid for a maximum of three years, although if you are incompetent at the expiry date it remains valid until you regain competence.  You may not revoke or change your Declaration when incompetent.  In contrast, your Power of Attorney remains valid until you revoke it. You may revoke your Power of Attorney at any time you are not incompetent by telling your health care provider, by executing a new document or by doing anything consistent with wanting to revoke it (for example, tearing it up).