Informed Consent and Adult Surrogates
Adult Surrogates When No Directive Exists
The qualified-patient prerequisites, attending physician's participation, and representative priority under Texas Health and Safety Code Section 166.039. Firewall doctrine: render structure, refuse interpretation, cite, abstain, and hand off.
Structured Visual
Jurisdiction: TX; as of 2026-09-11; not legal advice; Render structure, refuse interpretation, cite, abstain, and hand off.
RENDER STRUCTURE · REFUSE INTERPRETATION · CITE · ABSTAIN · HAND-OFF: render structure, refuse interpretation, cite provenance, abstain when unsupported, and hand off to human review.
Scope and honesty note
Jurisdiction: Texas medical-practice statutes, as of 2026-09-11. This classroom page provides legal information, not legal or medical advice. It does not assess a patient, clinician, license, report, prescription, disclosure, privilege, disciplinary ground, offense, or outcome. Current statutes, agency rules, facts, procedure, and professional standards may differ. Render only pinned structure; refuse unsupported interpretation or action; cite, abstain, and hand off to qualified legal, medical, regulatory, or emergency professionals.
The rule in plain terms
Section 166.039 applies to an adult qualified patient who has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication. Qualified patient is a defined status requiring the attending physician's written certification of a terminal or irreversible condition. The attending physician and a legal guardian or medical-power-of-attorney agent act under subsection (a). Only if the patient has neither does subsection (b) identify one available person from the following categories, in priority order: spouse, reasonably available adult children, parents, nearest living relative. These are conditions for a source-specific treatment-decision process, not a general consent hierarchy for every adult. The physician participates; the diagram never selects a treatment or predicts an outcome.
Capacity and condition definitions
The chapter defines competence, incompetence, terminal and irreversible conditions, and life-sustaining treatment. Verbatim statutory text: “In this chapter: (1) "Advance directive" means: (A) a directive, as that term is defined by Section 166.031; (B) an out-of-hospital DNR order, as that term is defined by Section 166.081; or (C) a medical power of attorney under Subchapter D. (2) "Artificially administered nutrition and hydration" means the provision of nutrients or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the gastrointestinal tract. (3) "Attending physician" means a physician selected by or assigned to a patient who has primary responsibility for a patient's treatment and care. (4) "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. (5) "Declarant" means a person who has executed or issued a directive under this chapter. (5-a) "Digital signature" means an electronic identifier intended by the person using it to have the same force and effect as the use of a manual signature. (5-b) "Electronic signature" means a facsimile, scan, uploaded image, computer-generated image, or other electronic representation of a manual signature that is intended by the person using it to have the same force and effect of law as a manual signature. (6) "Ethics or medical committee" means a committee established under Sections 161.031-161.033. (7) "Health care or treatment decision" means consent, refusal to consent, or withdrawal of consent to health care, treatment, service, or a procedure to maintain, diagnose, or treat an individual's physical or mental condition, including such a decision on behalf of a minor. (8) "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. (9) "Irreversible condition" means a condition, injury, or illness: (A) that may be treated but is never cured or eliminated; (B) that leaves a person unable to care for or make decisions for the person's own self; and (C) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal. (10) "Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain. (11) "Medical power of attorney" means a document delegating to an agent authority to make health care decisions executed or issued under Subchapter D. (12) "Physician" means: (A) a physician licensed by the Texas Medical Board; or (B) 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. (13) "Terminal condition" means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care. A patient who has been admitted to a program under which the person receives hospice services provided by a home and community support services agency licensed under Chapter 142 is presumed to have a terminal condition for purposes of this chapter. (14) "Witness" means a person who may serve as a witness under Section 166.003. (15) "Cardiopulmonary resuscitation" means any medical intervention used to restore circulatory or respiratory function that has ceased.” Legal citation: Tex. Health Safety Code § 166.002. Pinned source: https://www.neochart.com/catalog/texas/health_safety/chapter_166/section_166_002/tex_hs_166_002_ffd559a5cb42/tex_health_safety_code_sec_166_002_definitions_in_this_chapt_0001/index.html; data via neochart.com, snapshot 2026-09-11.
Qualified patient
The attending physician must diagnose and certify in writing the terminal or irreversible condition for the subchapter's qualified-patient definition. Verbatim statutory text: “In this subchapter: (1) "Directive" means an instruction made under Section 166.032, 166.034, or 166.035 to administer, withhold, or withdraw life-sustaining treatment in the event of a terminal or irreversible condition. (2) "Qualified patient" means a patient with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician.” Legal citation: Tex. Health Safety Code § 166.031. Pinned source: https://www.neochart.com/catalog/texas/health_safety/chapter_166/section_166_031/tex_hs_166_031_7ace55face7a/tex_health_safety_code_sec_166_031_definitions_in_this_subch_0001/index.html; data via neochart.com, snapshot 2026-09-11.
No-directive representative priority
This provision supplies the prerequisites, physician participation, representative categories, patient-wishes standard, documentation, concurrence, and challenge route. Verbatim statutory text: “(a) If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient. (b) If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, if available, from one of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment: (1) the patient's spouse; (2) the patient's reasonably available adult children; (3) the patient's parents; or (4) the patient's nearest living relative. (c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known. (d) A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the attending physician. (e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient. (f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment. (g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Chapter 1251, Estates Code. The court may waive applicable fees in that proceeding.” Legal citation: Tex. Health Safety Code § 166.039. Pinned source: https://www.neochart.com/catalog/texas/health_safety/chapter_166/section_166_039/tex_hs_166_039_f410d97b1dca/tex_health_safety_code_sec_166_039_procedure_when_person_has_0001/index.html; data via neochart.com, snapshot 2026-09-11.
MPOA authority and principal objection
An agent's exercise of authority retains the written incapacity certification, principal-objection protection, decision standard, and prohibited-consent limits. Verbatim statutory text: “(a) Subject to this subchapter or any express limitation on the authority of the agent contained in the medical power of attorney, the agent may make any health care decision on the principal's behalf that the principal could make if the principal were competent. (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 is incompetent. (c) Notwithstanding any other provisions of this subchapter, 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 medical power of attorney is in effect; or (2) the principal is competent. (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 advance 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 subchapter, 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 subchapter and delivery of the document to the agent, unless it is revoked as provided by this subchapter or the principal becomes competent. If the medical power of attorney includes an expiration date and on that date the principal is incompetent, the power of attorney continues to be effective until the principal becomes competent unless it is revoked as provided by this subchapter.” Legal citation: Tex. Health Safety Code § 166.152. Pinned source: https://www.neochart.com/catalog/texas/health_safety/chapter_166/section_166_152/tex_hs_166_152_4d1cbf0dea17/tex_health_safety_code_sec_166_152_scope_and_duration_of_aut_0001/index.html; data via neochart.com, snapshot 2026-09-11.
Work the pinned classroom record
A synthetic file records a certified irreversible condition, inability to communicate, no directive, no guardian or MPOA agent, an unavailable spouse, and a reasonably available adult child. Those stated facts identify the adult-child category for legal review, not authority to implement a clinical decision. The record separately preserves the patient's known desires, the attending physician's participation, and the signed medical-record documentation required for a subsection (b) decision. If a guardian or agent is found, the file must be reassessed under the applicable source rather than continuing down the family list.
Limits and authored cross-references
Subsection (c) requires decisions to follow known patient desires. Subsection (d) requires documentation and the attending physician's signature for a subsection (b) decision. Subsection (e) has a separate physician-concurrence pathway when its no-guardian and no-available-listed-person conditions hold. Absence of a directive creates no presumption against withholding or withdrawal. A listed person challenging the decision uses the temporary-guardianship route in subsection (g). The adult-child category retains the reasonably-available qualifier; no majority rule is added. An MPOA agent's authority also remains subject to Section 166.152, including its written certification and principal-objection rules. Actual capacity, representation, disputes, and treatment decisions require qualified legal and clinical review.
Read the glanceable structure
The six-node map shows eligibility and priority only. Each fallback requires its own absence or availability facts; the full source preserves the attending physician, patient wishes, documentation, concurrence, and challenge rules. The diagram contains 6 deliberately limited nodes. It is a navigation aid, not law or advice; the words and pinned sources below control the classroom explanation.
Jurisdiction: TX; as of 2026-09-11; not legal advice; Render structure, refuse interpretation, cite, abstain, and hand off.
RENDER STRUCTURE · REFUSE INTERPRETATION · CITE · ABSTAIN · HAND-OFF: render structure, refuse interpretation, cite provenance, abstain when unsupported, and hand off to human review.
Narrow summary
Establish the qualified-patient and no-directive prerequisites, identify the proper representative with the attending physician, preserve patient wishes and procedural safeguards, and hand off the actual decision.