⸺ On this page
1. The four documents
2. Directive to physicians
3. Witness rules that invalidate forms
4. Out-of-hospital DNR
5. What changed in 2023
6. Talking to your family
7. Frequently asked questions
The four documents
Health care planning in Texas is not one form. A complete set has four parts, and each does something the others cannot.
| Document | What it does | Authority |
| Directive to Physicians | States your wishes about life-sustaining treatment in a terminal or irreversible condition | § 166.033 |
| Medical Power of Attorney | Names the agent who decides everything the directive did not anticipate | § 166.164, executed under § 166.154 |
| HIPAA Authorization | Lets the people you name actually receive medical information | Federal privacy rule |
| Out-of-Hospital DNR | Directs EMS and others outside a hospital to withhold specified resuscitation | §§ 166.081–166.087 |
Two more are worth considering: a Declaration of Guardian in Advance of Need, naming who you would want as guardian — and who you would not — if a court ever had to appoint one; and an Appointment of Agent to Control Disposition of Remains, which prevents an entirely avoidable family fight at the worst possible time.
Directive to physicians
The statutory form asks you to make choices about two defined situations.
The two conditions in § 166.033
Terminal condition — you are suffering with a terminal condition from which you are expected to die within six months, even with available life-sustaining treatment. Irreversible condition — you are suffering with an irreversible condition so that you cannot care for yourself or make decisions for yourself, and you are expected to die without life-sustaining treatment.
For each, you initial whether you want life-sustaining treatment provided, or whether you want to be kept comfortable and allowed to die naturally. You can add your own instructions, and you should if you have specific views on artificial nutrition and hydration, ventilator support, dialysis, or antibiotics.
Write more than the form asks for. The statutory language is broad because it has to cover everyone. The families who navigate this best are the ones whose parent wrote a few sentences in their own words — what a good day would have to look like, what they were most afraid of, what they would not want to trade for more time. That paragraph does more work in an ICU than any checkbox.
Witness rules that invalidate forms
This is the single most common reason a Texas advance directive fails, and it is entirely preventable.
Under Health & Safety Code § 166.003, each witness must be a competent adult, and at least one witness may not be:
- The person you designated to make health care decisions for you;
- Related to you by blood or marriage;
- Entitled to any part of your estate after your death, whether under a will or by operation of law;
- A person with a claim against your estate;
- Your attending physician, or an employee of that physician; or
- An employee of the health care facility providing your direct care, or an officer, director, partner, or business office employee of that facility or its parent organization.
The scenario we see constantly. A family fills out forms at the hospital and the two people standing there — both adult children — sign as witnesses. Both are heirs and both are related by blood, so neither can serve as the independent witness. The directive is defective. Notarizing instead avoids the whole problem, which is why we often do exactly that.
Out-of-hospital DNR
A directive to physicians governs decisions made by physicians in a care setting. It does not govern what paramedics do when someone calls 911.
The Out-of-Hospital DNR under Health & Safety Code §§ 166.081–166.087 is a separate instrument, executed on a form prescribed by the state and signed by the attending physician, directing health care professionals and emergency responders to withhold specified resuscitation measures outside a hospital — at home, in a nursing facility, in an ambulance.
If this matters to you, it has to be visible. EMS acts in seconds. An out-of-hospital DNR in a filing cabinet does nothing. It needs to be where responders will see it, and the state form and identification device exist precisely so it can be recognized immediately.
What changed in 2023
The Texas Advance Directives Act was substantially amended in 2023, and most published content about it is still describing the old law.
The 10-day rule is now 25 days
Where a physician concludes that requested life-sustaining treatment is medically inappropriate and an ethics or medical committee agrees, the facility historically had to continue treatment for 10 days while the family sought transfer. Under the current § 166.046, the attending physician, other treating physicians, and the facility are not obligated to provide life-sustaining treatment after the 25th calendar day following a written start notice, with the period beginning the first calendar day after notice is given.
More notice, earlier
The family must now receive written notice at least seven days before the committee meeting, including how the review process works, the date, time, and location of the meeting, contact information for the personnel who coordinate transfers, the factors the committee will consider, and a registry list of providers who may be willing to consider a transfer.
A delay notice
The 25-day period is postponed where certain procedures — a tracheostomy or a percutaneous endoscopic gastrostomy — are performed to make a transfer possible.
Why this belongs on an estate planning page. Families almost never learn these rules before they are inside them. Knowing that the clock is 25 days rather than 10, that notice must come a week before the meeting, and that a transfer registry exists changes what a family can realistically do with that time.
Talking to your family
The documents are the easy part. The conversation is what actually protects people.
01
Tell your agent first
Nobody should learn they are your health care agent from a hospital. Ask, explain, and make sure they can carry it.
02
Tell the ones you didn't name
A daughter who finds out at the bedside that her brother decides is a fight waiting to happen. Hearing it from you removes that.
03
Distribute the copies
Agent, alternates, physician, hospital system, and somewhere at home your family can reach in an hour. Not the safe deposit box.
Revisit after any significant diagnosis, divorce, death of a named agent, or move to a new state. And tell us — updating these is quick.
Frequently asked questions
What is a living will in Texas?
Texas does not use the term “living will” in its statutes. The document people mean is the Directive to Physicians and Family or Surrogates under Health & Safety Code § 166.033. It states whether you want life-sustaining treatment if you have a terminal condition (expected to die within six months even with treatment) or an irreversible condition (cannot care for or make decisions for yourself and expected to die without treatment).
How is a Texas advance directive signed?
Signed by you in the presence of two competent adult witnesses, or signed and notarized instead. Under § 166.003 at least one witness must be independent — not the person you named as health care agent, not related to you by blood or marriage, not entitled to any part of your estate or holding a claim against it, not your attending physician or their employee, and not an officer, administrator, or direct-care employee of the facility treating you.
What is the difference between a directive to physicians and a medical power of attorney?
A directive to physicians states what you want. A medical power of attorney names who decides. The directive speaks to situations you anticipated; the agent handles everything you did not. Almost nobody should have only one of them — medicine produces situations no form predicted, and a document without a decision-maker leaves those unresolved.
Is the Texas '10-day rule' still 10 days?
No. The Texas Advance Directives Act was substantially overhauled in 2023. Under the current Health & Safety Code § 166.046, when an ethics or medical committee agrees with a physician’s decision not to provide life-sustaining treatment the family requested, the facility is not obligated to continue that treatment after the 25th calendar day following a written start notice — not 10 days. The amendments also require written notice to the family at least seven days before the committee meeting, with information about the process, the factors the committee will weigh, and a registry of providers who may consider a transfer.
What is an out-of-hospital DNR?
An Out-of-Hospital Do-Not-Resuscitate Order, governed by Health & Safety Code §§ 166.081–166.087, directs emergency personnel and health care professionals outside a hospital setting to withhold specified resuscitation measures. It is a separate, physician-signed document on a state-prescribed form — a directive to physicians alone will not stop paramedics from performing CPR in your living room.
Do I need a HIPAA authorization if I have a medical power of attorney?
Yes, and it is the cheapest document in the plan. A medical power of attorney lets your agent decide; a HIPAA authorization lets the people you name actually obtain information. Without it, family members who are not your agent — adult children, a sibling, an unmarried partner — can be told nothing at all. We routinely name more people on the HIPAA authorization than on the medical POA.
Can I change my mind later?
Yes, at any time and regardless of your mental state. Texas advance directives can be revoked by the declarant orally, in writing, or by destroying the document, and a competent adult’s contemporaneous wishes control over a prior written directive. Tell your physician and your agent, and replace the paperwork so the old document is not the one found later.
Where should I keep these documents?
Not in a safe deposit box. Give copies to your agent, your alternates, your physician, and the hospital system you use. Keep the originals somewhere your family can reach immediately, and carry a wallet card naming your agent. A directive nobody can find during the first hour of an emergency has no effect on that hour.
Written and reviewed by Jireh Davis, J.D., MBA
Attorney and mediator at J. Davis Law & Mediation. Licensed in Texas. Practice focused on estate planning, probate, and business law for families and owners across Harris, Fort Bend, Montgomery, Tarrant, and Dallas Counties.
Last reviewed: September 2026 · Citations are to the Texas Estates Code, Texas Property Code, and federal law as noted.
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