The Texas Consent to Medical Treatment Act, codified at Chapter 313 of the Texas Health and Safety Code, lets specific family members authorize medical care for an adult patient who cannot make or communicate decisions and who has no legal guardian or medical power of attorney agent available. It sets a ranked list of surrogate decision-makers, tells physicians how to document the patient’s incapacity, and protects both the surrogate and the provider from liability when they act in good faith.1State of Texas. Texas Health and Safety Code Chapter 313 – Consent to Medical Treatment Act
What the Act Does
Chapter 313 answers a narrow but common question: when an adult patient cannot speak for themselves and never signed advance paperwork, who gets to say yes to treatment? Without a rule like this, hospitals and nursing homes would be stuck choosing between delaying care and treating patients on nothing more than a relative’s word. The Act fills that gap by naming, in order, the people a provider can turn to.
The statute applies in hospitals, nursing homes, and home health settings. It covers medical treatment decisions only. A surrogate acting under Chapter 313 cannot handle the patient’s finances, sign legal documents unrelated to care, or make other personal decisions on the patient’s behalf.
When the Act Applies
Three conditions must line up before the surrogate list is used.
First, a physician must determine that the patient is incapacitated. Under the Act, that means the patient lacks the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including its significant benefits, harms, and reasonable alternatives.1State of Texas. Texas Health and Safety Code Chapter 313 – Consent to Medical Treatment Act This is a clinical determination, not a court order.2Justia. Texas Health and Safety Code Chapter 313 – Consent to Medical Treatment Act The attending physician makes the call and documents the patient’s condition and inability to communicate in the medical record. Texas presumes adults have capacity unless a physician finds otherwise, and the finding can change: a patient knocked out by medication, anesthesia recovery, or an acute illness may regain the ability to decide once the condition improves, and when that happens, the patient’s own consent controls again.
Second, the care must be happening in a hospital, nursing home, or home health context. The Act is written around those settings.
Third, no higher-ranking decision-maker can be available. If the patient has a court-appointed guardian or a Medical Power of Attorney agent who can be located after a reasonable search, that person decides, and the Chapter 313 list is never reached.
Who Can Consent, in Order
Once incapacity is documented and no guardian or MPOA agent is available, the first person on this list who is both available and willing becomes the surrogate:3State of Texas. Texas Health and Safety Code 313.004
- The patient’s spouse
- An adult child of the patient
- Either parent of the patient
- The nearest living relative
The order matters. A provider cannot skip past an available spouse to an adult child because the child is easier to reach, and an adult child’s consent is not needed on top of a spouse’s. The surrogate must act in the patient’s best interests and, when possible, honor preferences the patient expressed before losing capacity.
A surrogate’s authority is strictly medical. It does not reach banking, housing, or other decisions. And it exists only while the patient remains incapacitated. If the patient recovers enough to understand and communicate a decision, the surrogate steps back and the patient resumes making their own choices.
What Happens If No One on the List Is Available
If no one from the priority list can be located, the attending physician may seek guidance from the facility’s ethics or medical committee. For patients with permanent conditions like advanced dementia or a severe brain injury, a family member may need to petition a court for formal guardianship. Guardianship takes longer and involves ongoing court oversight, but it provides broader decision-making authority than Chapter 313’s medical-only surrogacy.
Family disagreement about whether the patient truly lacks capacity can also push a case into court. When relatives cannot agree, a guardianship proceeding may be the only way to resolve the dispute cleanly.
Protection from Liability
The Act shields both sides of the decision from being punished for using it. A surrogate who consents to treatment in good faith is not subject to criminal or civil liability. An attending physician, hospital, nursing home, or home health agency that acts in good faith on surrogate consent is likewise protected, provided the medical treatment itself meets the standard of due care.4State of Texas. Texas Health and Safety Code 313.007 – Limitation on Liability
This matters in practice because providers are often reluctant to treat an incapacitated patient on a relative’s say-so alone. Section 313.007 gives them clear legal cover, which is why most Texas hospitals have internal procedures built directly around the statute’s priority list.
The protection has limits. It covers good-faith reliance on the Act’s framework. A provider who treats a patient without going through the Act, or who acts outside its rules, cannot point to Section 313.007 as a defense, and the good-faith shield does not excuse negligent treatment of the patient once consent is in hand.
How Chapter 313 Fits with Other Consent Rules
The Act is one piece of a larger consent framework, and knowing what it does not cover is as useful as knowing what it does.
Advance Directives Take Priority
An adult who signs a Medical Power of Attorney while they still have capacity names an agent to make healthcare decisions if they later cannot. The agent’s authority covers any healthcare decision the patient could make, including the right to consent to or refuse treatment, unless the document limits it.5Texas Health and Human Services. Medical Power of Attorney Designation of Health Care Agent (MPOA) When an MPOA agent is available, that person decides, and the Chapter 313 surrogate list is bypassed entirely. A Directive to Physicians (sometimes called a living will) does similar work for end-of-life care, letting a person specify in advance what treatment they want or do not want if they become terminally ill or irreversibly unconscious. Executing either document is voluntary. No hospital, physician, insurer, or health plan can require it as a condition of care.
Emergencies Are Governed Separately
The Act lists several situations where its consent requirements do not apply, including emergency care governed by Government Code Chapter 773.6State of Texas. Texas Health and Safety Code 313.003 – Exceptions When a patient faces a life-threatening condition or severe injury that demands immediate intervention, providers can act without waiting for a surrogate. The legal basis is implied consent: a reasonable person facing death or permanent disability would agree to treatment. Cardiac arrest, stroke, and severe trauma all fall into this category.
Minors Are Not Covered
Chapter 313 is about incapacitated adults. Consent for children runs through Texas Family Code Chapter 32, which gives authority to parents, managing conservators, legal guardians, and certain other adults authorized in writing by a parent, and which also lets some minors consent for themselves in specific situations.7State of Texas. Texas Family Code Chapter 32 – Consent to Treatment of Child by Non-Parent or Child An adult child making decisions for an incapacitated parent is acting under Chapter 313; a parent making decisions for a sick child is not.
Informed Consent for Procedures Is a Separate Duty
Chapter 313 governs who may consent. The quality of the information the patient or surrogate receives before consenting is governed by a different statute. Under Texas Civil Practice and Remedies Code Chapter 74, physicians must disclose the risks and hazards of specific procedures identified by the Texas Medical Disclosure Panel, and failure to do so creates a rebuttable presumption of negligence in a malpractice suit.8State of Texas. Texas Civil Practice and Remedies Code 74.104 A surrogate consenting under Chapter 313 is entitled to the same disclosures the patient would receive.
If the Rules Are Not Followed
A patient who is treated without proper consent, or who suffers harm from a procedure they were not adequately informed about, can sue under Texas Civil Practice and Remedies Code Subchapter C.9State of Texas. Texas Civil Practice and Remedies Code 74.101 The Texas Medical Board can discipline a physician whose conduct falls below professional standards, with outcomes ranging from remedial education to license suspension or revocation. The Texas Health and Human Services Commission oversees facility compliance and can investigate complaints about inadequate consent practices at hospitals and nursing homes. Criminal exposure is rare but possible: a provider who intentionally treats a patient without any form of consent in a non-emergency could face a battery charge under general criminal law, and the good-faith protections in Section 313.007 do not reach conduct outside the Act’s framework.4State of Texas. Texas Health and Safety Code 313.007 – Limitation on Liability
If you want to control who speaks for you before any of this becomes relevant, signing a Medical Power of Attorney is the most direct way. The Texas Health and Human Services Commission publishes a standard form, and no attorney is required to complete it. Without one, Chapter 313’s list decides for you.