(a) A community program provider must develop and implement written procedures for identifying and using a surrogate decision-maker in accordance with the provisions of this division.
(b) A surrogate decision-maker may:
  (1) consent to major medical treatment;
  (2) consent to major dental treatment;
  (3) consent to release of records related to the individual's condition or treatment to facilitate the treatment to which the surrogate decision-maker has consented; and
  (4) make a decision that involves risk to individual protection and rights.
(c) A surrogate decision-maker may not consent to the use of psychoactive medication or a highly restrictive procedure.
(d) If, based on the assessment described in §9.283 of this division (relating to Informed Decision Assessment), a community program provider determines that an individual does not have the capacity to make an informed decision about matters listed in subsection (b) of this section, the community program provider must determine if one of the following persons, in order of descending preference, is available and willing to act as the surrogate decision-maker for the individual:
  (1) an actively involved spouse;
  (2) an actively involved adult child who has the waiver and consent of all other actively involved adult children of the individual to act as the sole decision-maker;
  (3) an actively involved parent or stepparent;
  (4) an actively involved adult sibling who has the waiver and consent of all other actively involved adult siblings of the individual to act as the sole decision-maker; or
  (5) any other actively involved adult relative who has the waiver and consent of all other actively involved adult relatives of the individual to act as the sole decision-maker.
(e) If a community program provider is aware of a dispute as to the right of a person to act as a surrogate decision-maker, the community program provider must inform the persons involved that the dispute may be resolved only by a court of record under the Texas Probate Code, Chapter XIII.
(f) If a community program provider identifies a person to be a surrogate decision-maker in accordance with subsection (d) of this section, the community program provider must document the identity of that person in the individual's record.
(g) If a community program provider is unable to identify a surrogate decision-maker in accordance with subsection (d) of this section, including because of an unresolved dispute, the community program provider must document the reason the community program provider was unable to identify a surrogate decision-maker.

Source Note: The provisions of this §261.286 adopted to be effective July 1, 2007, 32 TexReg 3856; transferred effective October 1, 2020, as published in the Texas Register August 28, 2020, 45 TexReg 6127