New Statutory Rules for Witnessing Advance Directives in Texas

By S. Van McCrary, Health Law & Policy Institute

On June 18, 1999, Governor George W. Bush signed Texas Senate Bill 1260 into law. This bill consolidates all the previous Texas statutes related to advance directives--including the Natural Death Act, Durable Power of Attorney for Health Care, and Out-of-Hospital DNR Orders--into a unified statutory form.

One of the most helpful aspects of the new law is that requirements for witnesses for written directives are now both consistent and less burdensome for patients, families, health care providers, and health care institutions. Under the previous statutes, the criteria for determining which persons were eligible (or not) to serve as witnesses were found under three separate statutory provisions, which frequently confused health care providers and social workers who were assisting patients in making end-of-life decisions. Under the new law, the requirements for witness eligibility for all three advance directives will be found at a single statutory location [Texas Health & Safety Code § 166.003 (effective 9-1-99)].

Moreover, the requirements for witnessing a valid directive have been eased. In order to prevent conflicts of interest and possible undue influence on patients contemplating executing a directive, the witnessing requirements eliminate some persons from eligibility as witnesses. Such ineligible persons include: (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 person 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) the attending physician; (5) an employee of the attending physician; (6) 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; or (7) a person who, at the time the written advance directive is executed or, if the directive is a nonwritten directive issued under this chapter, at the time the nonwritten directive is issued, has a claim against any part of the declarant's estate after the declarant's death [Texas Health & Safety Code § 166.003 (2)]. Whereas under the previous statutes, two witnesses were required for the document to be valid and both witnesses were required to meet the criteria specified above, under the new bill only one witness must meet the restrictive requirements. Because many advance directives are executed in health care institutions, a law making all employees of such institutions, attending physicians, and many family members ineligible to witness a document has often had the effect in the past of making it very difficult to locate two eligible witnesses. This problem was sometimes exacerbated by the short time period in which some patients could competently execute a directive. These statutory changes should have the effect of relieving this burden.

The new law will take effect on September 1, 1999. It seems likely that making it less burdensome to locate eligible witnesses for execution of advance directives, through reducing the number of witnesses required to meet the statutory criteria, will have the salutary effects of relieving stress on both providers, patients, and families, while preserving the safeguards appropriately intended in the earlier law. Although the new bill makes numerous other controversial changes in the previous laws, this particular aspect of the new law appears to have potential to benefit health care providers, patients, and families alike.