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A BILL TO BE ENTITLED
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AN ACT
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relating to declarations for mental health treatment. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 137, Civil Practice and Remedies Code, |
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is transferred to Chapter 576, Health and Safety Code, redesignated |
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as Subchapter C, Chapter 576, Health and Safety Code, and amended to |
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read as follows: |
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SUBCHAPTER C [CHAPTER 137]. DECLARATION FOR MENTAL HEALTH |
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TREATMENT |
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Sec. 576.051 [137.001]. DEFINITIONS. In this chapter: |
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(1) "Adult" means a person 18 years of age or older or |
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a person under 18 years of age who has had the disabilities of |
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minority removed. |
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(2) "Attending physician" means the physician, |
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selected by or assigned to a patient, who has primary |
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responsibility for the treatment and care of the patient. |
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(3) "Declaration for mental health treatment" means a |
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document making a declaration of preferences or instructions |
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regarding mental health treatment. |
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(4) "Emergency" means a situation in which it is |
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immediately necessary to treat a patient to prevent: |
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(A) probable imminent death or serious bodily |
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injury to the patient because the patient: |
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(i) overtly or continually is threatening |
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or attempting to commit suicide or serious bodily injury to the |
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patient; or |
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(ii) is behaving in a manner that indicates |
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that the patient is unable to satisfy the patient's need for |
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nourishment, essential medical care, or self-protection; or |
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(B) imminent physical or emotional harm to |
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another because of threats, attempts, or other acts of the patient. |
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(5) "Health care provider" means an individual or |
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facility licensed, certified, or otherwise authorized to |
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administer health care or treatment, for profit or otherwise, in |
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the ordinary course of business or professional practice and |
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includes a physician or other health care provider, a residential |
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care provider, or an inpatient mental health facility as defined by |
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Section 571.003[, Health and Safety Code]. |
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(6) "Incapacitated" means that, in the opinion of the |
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court in a guardianship proceeding under Chapter XIII, Texas |
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Probate Code, or in a medication hearing under Section 574.106[,
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Health and Safety Code], a person lacks the ability to understand |
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the nature and consequences of a proposed treatment, including the |
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benefits, risks, and alternatives to the proposed treatment, and |
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lacks the ability to make mental health treatment decisions because |
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of impairment. |
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(7) "Mental health treatment" means electroconvulsive |
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or other convulsive treatment, treatment of mental illness with |
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psychoactive medication as defined by Section 574.101[, Health and
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Safety Code], or emergency mental health treatment. |
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(8) "Principal" means a person who has executed a |
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declaration for mental health treatment. |
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Sec. 576.052 [137.002]. PERSONS WHO MAY EXECUTE |
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DECLARATION FOR MENTAL HEALTH TREATMENT; PERIOD OF VALIDITY. |
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(a) An adult who is not incapacitated may execute a declaration |
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for mental health treatment. The preferences or instructions may |
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include consent to or refusal of mental health treatment. |
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(b) A declaration for mental health treatment is effective |
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on execution as provided by this chapter. Except as provided by |
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Subsection (c), a declaration for mental health treatment expires |
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on the third anniversary of the date of its execution or when |
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revoked by the principal, whichever is earlier. |
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(c) If the declaration for mental health treatment is in |
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effect and the principal is incapacitated on the third anniversary |
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of the date of its execution, the declaration remains in effect |
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until the principal is no longer incapacitated. |
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Sec. 576.053 [137.003]. EXECUTION AND WITNESSES. (a) A |
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declaration for mental health treatment must be signed by the |
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principal in the presence of two or more subscribing witnesses. |
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(b) A witness may not, at the time of execution, be: |
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(1) the principal's health or residential care |
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provider or an employee of that provider; |
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(2) the operator of a community health care facility |
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providing care to the principal or an employee of an operator of the |
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facility; |
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(3) a person related to the principal by blood, |
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marriage, or adoption; |
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(4) a person entitled to any part of the estate of the |
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principal on the death of the principal under a will, trust, or deed |
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in existence or who would be entitled to any part of the estate by |
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operation of law if the principal died intestate; or |
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(5) a person who has a claim against the estate of the |
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principal. |
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(c) For a witness's signature to be effective, the witness |
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must sign a statement affirming that, at the time the declaration |
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for mental health treatment was signed, the principal: |
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(1) appeared to be of sound mind to make a mental |
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health treatment decision; |
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(2) has stated in the witness's presence that the |
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principal was aware of the nature of the declaration for mental |
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health treatment and that the principal was signing the document |
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voluntarily and free from any duress; and |
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(3) requested that the witness serve as a witness to |
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the principal's execution of the document. |
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Sec. 576.054 [137.004]. HEALTH CARE PROVIDER TO ACT IN |
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ACCORDANCE WITH DECLARATION FOR MENTAL HEALTH TREATMENT. A |
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physician or other health care provider shall act in accordance |
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with the declaration for mental health treatment when the principal |
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has been found to be incapacitated. A physician or other provider |
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shall continue to seek and act in accordance with the principal's |
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informed consent to all mental health treatment decisions if the |
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principal is capable of providing informed consent. |
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Sec. 576.055 [137.005]. LIMITATION ON LIABILITY. (a) An |
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attending physician, health or residential care provider, or person |
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acting for or under an attending physician's or health or |
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residential care provider's control is not subject to criminal or |
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civil liability and has not engaged in professional misconduct for |
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an act or omission if the act or omission is done in good faith under |
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the terms of a declaration for mental health treatment. |
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(b) An attending physician, health or residential care |
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provider, or person acting for or under an attending physician's or |
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health or residential care provider's control does not engage in |
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professional misconduct for: |
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(1) failure to act in accordance with a declaration |
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for mental health treatment if the physician, provider, or other |
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person: |
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(A) was not provided with a copy of the |
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declaration; and |
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(B) had no knowledge of the declaration after a |
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good faith attempt to learn of the existence of a declaration; or |
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(2) acting in accordance with a directive for mental |
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health treatment after the directive has expired or has been |
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revoked if the physician, provider, or other person does not have |
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knowledge of the expiration or revocation. |
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Sec. 576.056 [137.006]. DISCRIMINATION RELATING TO |
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EXECUTION OF DECLARATION FOR MENTAL HEALTH TREATMENT. A health or |
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residential care provider, health care service plan, insurer |
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issuing disability insurance, self-insured employee benefit plan, |
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or nonprofit hospital service plan may not: |
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(1) charge a person a different rate solely because |
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the person has executed a declaration for mental health treatment; |
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(2) require a person to execute a declaration for |
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mental health treatment before: |
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(A) admitting the person to a hospital, nursing |
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home, or residential care home; |
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(B) insuring the person; or |
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(C) allowing the person to receive health or |
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residential care; |
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(3) refuse health or residential care to a person |
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solely because the person has executed a declaration for mental |
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health treatment; or |
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(4) discharge the person solely because the person has |
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or has not executed a declaration for mental health treatment. |
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Sec. 576.057 [137.007]. USE AND EFFECT OF DECLARATION FOR |
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MENTAL HEALTH TREATMENT. (a) On being presented with a |
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declaration for mental health treatment, a physician or other |
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health care provider shall make the declaration a part of the |
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principal's medical record. When acting in accordance with a |
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declaration for mental health treatment, a physician or other |
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health care provider shall comply with the declaration to the |
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fullest extent possible. |
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(b) If a physician or other provider is unwilling at any |
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time to comply with a declaration for mental health treatment, the |
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physician or provider may withdraw from providing treatment |
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consistent with the exercise of independent medical judgment and |
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must promptly: |
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(1) make a reasonable effort to transfer care for the |
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principal to a physician or provider who is willing to comply with |
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the declaration; |
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(2) notify the principal, or principal's guardian, if |
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appropriate, of the decision to withdraw; and |
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(3) record in the principal's medical record the |
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notification and, if applicable, the name of the physician or |
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provider to whom the principal is transferred. |
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Sec. 576.058 [137.008]. DISREGARD OF DECLARATION FOR |
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MENTAL HEALTH TREATMENT. (a) A physician or other health care |
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provider may subject the principal to mental health treatment in a |
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manner contrary to the principal's wishes as expressed in a |
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declaration for mental health treatment only: |
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(1) if the principal is under an order for temporary or |
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extended mental health services under Section 574.034 or 574.035[,
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Health and Safety Code], and treatment is authorized in compliance |
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with Section 574.106[, Health and Safety Code]; or |
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(2) in case of an emergency when the principal's |
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instructions have not been effective in reducing the severity of |
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the behavior that has caused the emergency. |
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(b) A declaration for mental health treatment does not limit |
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any authority provided by Chapter 573 or 574[, Health and Safety
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Code]: |
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(1) to take a person into custody; or |
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(2) to admit or retain a person in a mental health |
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treatment facility. |
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(c) This section does not apply to the use of |
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electroconvulsive treatment or other convulsive treatment. |
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Sec. 576.059 [137.009]. CONFLICTING OR CONTRARY |
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PROVISIONS. (a) Mental health treatment instructions contained |
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in a declaration executed in accordance with this chapter supersede |
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any contrary or conflicting instructions given by: |
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(1) a durable power of attorney under Subchapter D, |
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Chapter 166 [Chapter 135]; or |
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(2) a guardian appointed under Chapter XIII, Texas |
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Probate Code, after the execution of the declaration. |
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(b) Mental health treatment instructions contained in a |
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declaration executed in accordance with this chapter shall be |
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conclusive evidence of a declarant's preference in a medication |
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hearing under Section 574.106[, Health and Safety Code]. |
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Sec. 576.060 [137.010]. REVOCATION. (a) A declaration |
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for mental health treatment is revoked when a principal who is not |
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incapacitated: |
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(1) notifies a licensed or certified health or |
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residential care provider of the revocation; |
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(2) acts in a manner that demonstrates a specific |
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intent to revoke the declaration; or |
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(3) executes a later declaration for mental health |
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treatment. |
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(b) A principal's health or residential care provider who is |
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informed of or provided with a revocation of a declaration for |
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mental health treatment immediately shall: |
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(1) record the revocation in the principal's medical |
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record; and |
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(2) give notice of the revocation to any other health |
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or residential care provider the provider knows to be responsible |
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for the principal's care. |
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Sec. 576.061 [137.011]. FORM OF DECLARATION FOR MENTAL |
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HEALTH TREATMENT. The declaration for mental health treatment must |
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be in substantially the following form: |
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DECLARATION FOR MENTAL HEALTH TREATMENT |
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I, __________________, being an adult of sound mind, wilfully |
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and voluntarily make this declaration for mental health treatment |
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to be followed if it is determined by a court that my ability to |
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understand the nature and consequences of a proposed treatment, |
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including the benefits, risks, and alternatives to the proposed |
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treatment, is impaired to such an extent that I lack the capacity to |
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make mental health treatment decisions. "Mental health treatment" |
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means electroconvulsive or other convulsive treatment, treatment |
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of mental illness with psychoactive medication, and preferences |
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regarding emergency mental health treatment. |
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(OPTIONAL PARAGRAPH) I understand that I may become |
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incapable of giving or withholding informed consent for mental |
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health treatment due to the symptoms of a diagnosed mental |
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disorder. These symptoms may include: |
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________________________________________________________________ |
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PSYCHOACTIVE MEDICATIONS |
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If I become incapable of giving or withholding informed |
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consent for mental health treatment, my wishes regarding |
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psychoactive medications are as follows: |
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_____ I consent to the administration of the following |
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medications: |
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________________________________________________________________ |
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_____ I do not consent to the administration of the following |
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medications: |
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________________________________________________________________ |
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_____ I consent to the administration of a federal Food and |
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Drug Administration approved medication that was only approved and |
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in existence after my declaration and that is considered in the same |
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class of psychoactive medications as stated below: |
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________________________________________________________________ |
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Conditions or limitations: ________________________________ |
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CONVULSIVE TREATMENT |
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If I become incapable of giving or withholding informed |
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consent for mental health treatment, my wishes regarding convulsive |
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treatment are as follows: |
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_____ I consent to the administration of convulsive |
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treatment. |
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_____ I do not consent to the administration of convulsive |
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treatment. |
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Conditions or limitations: ________________________________ |
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PREFERENCES FOR EMERGENCY TREATMENT |
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In an emergency, I prefer the following treatment FIRST |
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(circle one) Restraint/Seclusion/Medication. |
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In an emergency, I prefer the following treatment SECOND |
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(circle one) Restraint/Seclusion/Medication. |
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In an emergency, I prefer the following treatment THIRD |
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(circle one) Restraint/Seclusion/Medication. |
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______ I prefer a male/female to administer restraint, |
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seclusion, and/or medications. |
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Options for treatment prior to use of restraint, seclusion, |
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and/or medications: |
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________________________________________________________________ |
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Conditions or limitations: ________________________________ |
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ADDITIONAL PREFERENCES OR INSTRUCTIONS |
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________________________________________________________________ |
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Conditions or limitations: ________________________________ |
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Signature of Principal/Date: ______________________________ |
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STATEMENT OF WITNESSES |
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I declare under penalty of perjury that the principal's name |
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has been represented to me by the principal, that the principal |
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signed or acknowledged this declaration in my presence, that I |
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believe the principal to be of sound mind, that the principal has |
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affirmed that the principal is aware of the nature of the document |
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and is signing it voluntarily and free from duress, that the |
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principal requested that I serve as witness to the principal's |
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execution of this document, and that I am not a provider of health |
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or residential care to the principal, an employee of a provider of |
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health or residential care to the principal, an operator of a |
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community health care facility providing care to the principal, or |
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an employee of an operator of a community health care facility |
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providing care to the principal. |
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I declare that I am not related to the principal by blood, |
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marriage, or adoption and that to the best of my knowledge I am not |
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entitled to and do not have a claim against any part of the estate of |
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the principal on the death of the principal under a will or by |
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operation of law. |
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Witness Signature: _________________________________________ |
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Print Name: ________________________________________________ |
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Date: ______________________ |
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Address: ___________________________________________________ |
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Witness Signature: _________________________________________ |
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Print Name: ________________________________________________ |
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Date: ______________________ |
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Address: ___________________________________________________ |
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NOTICE TO PERSON MAKING A DECLARATION FOR MENTAL HEALTH TREATMENT |
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This is an important legal document. It creates a |
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declaration for mental health treatment. Before signing this |
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document, you should know these important facts: |
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This document allows you to make decisions in advance about |
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mental health treatment and specifically three types of mental |
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health treatment: psychoactive medication, convulsive therapy, |
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and emergency mental health treatment. The instructions that you |
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include in this declaration will be followed only if a court |
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believes that you are incapacitated to make treatment decisions. |
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Otherwise, you will be considered able to give or withhold consent |
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for the treatments. |
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This document will continue in effect for a period of three |
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years unless you become incapacitated to participate in mental |
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health treatment decisions. If this occurs, the directive will |
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continue in effect until you are no longer incapacitated. |
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You have the right to revoke this document in whole or in part |
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at any time you have not been determined to be incapacitated. YOU |
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MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED BY A COURT |
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TO BE INCAPACITATED. A revocation is effective when it is |
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communicated to your attending physician or other health care |
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provider. |
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If there is anything in this document that you do not |
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understand, you should ask a lawyer to explain it to you. This |
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declaration is not valid unless it is signed by two qualified |
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witnesses who are personally known to you and who are present when |
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you sign or acknowledge your signature. |
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SECTION 2. (a) Subdivision (6), Section 576.051, Health |
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and Safety Code, as effective September 1, 2013, is amended to read |
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as follows: |
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(6) "Incapacitated" means that, in the opinion of the |
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court in a guardianship proceeding under Title 3, Estates [Chapter
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XIII, Texas Probate] Code, or in a medication hearing under Section |
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574.106, a person lacks the ability to understand the nature and |
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consequences of a proposed treatment, including the benefits, |
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risks, and alternatives to the proposed treatment, and lacks the |
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ability to make mental health treatment decisions because of |
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impairment. |
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(b) This section takes effect January 1, 2014. |
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SECTION 3. (a) Subsection (a), Section 576.059, Health and |
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Safety Code, as effective September 1, 2013, is amended to read as |
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follows: |
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(a) Mental health treatment instructions contained in a |
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declaration executed in accordance with this chapter supersede any |
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contrary or conflicting instructions given by: |
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(1) a durable power of attorney under Subchapter D, |
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Chapter 166; or |
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(2) a guardian appointed under Title 3, Estates |
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[Chapter XIII, Texas Probate] Code, after the execution of the |
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declaration. |
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(b) This section takes effect January 1, 2014. |
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SECTION 4. Except as otherwise provided by this Act, this |
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Act takes effect September 1, 2013. |
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* * * * * |