Chapter 08 - Health Care Decisions

Chapter 08 - Health Care Decisions

13.0801 Appointment of a health care representative.


(a) A written document appointing a representative to make health care decisions for a principal shall be signed by the principal in the presence of two subscribing witnesses. A principal unable to sign the instrument may, in the presence of witnesses, direct that another person not a witness to the instrument sign the principal’s name as required herein. An exact copy of the instrument shall be provided to the representative.

(b) The person appointed as representative shall not act as witness to the execution of the instrument appointing the health care representative. Both witnesses must be at least 18 years of age, and at least one person who acts as a witness shall be neither the principal’s spouse nor relative by blood or adoption.

(c) An instrument appointing a health care representative may also appoint an alternate representative provided the appointment is explicit. The alternate representative may assume his or her duties as representative for the principal if the original representative is unwilling or unable to perform his or her duties. The principal’s failure to appoint an alternate representative shall not invalidate the appointment of the original representative.

(d) Unless the instrument states a time of termination, the appointment shall remain in effect until revoked by the principal.

(e) A written appointment of a health care representative executed pursuant to this section establishes a rebuttable presumption of clear and convincing evidence of the principal’s appointment of the representative.

13.0802 Capacity of principal.


(a) A principal is presumed to be capable of making health care decisions for himself or herself unless she/he is determined to be incapacitated. Incapacity may not be inferred from the person’s voluntary or involuntary hospitalization for mental illness or from his or her mental retardation.

(b) If a principal’s capacity to make health care decisions for himself or herself is in question, the attending physician shall evaluate the principal’s capacity and, if the physician concludes that the principal lacks capacity, enter that evaluation in the principal’s medical record. If the attending physician has a question as to whether the principal lacks capacity, another physician also shall evaluate the principal’s capacity, and if the second physician agrees that the principal lacks the capacity to make health care decisions, the health care facility shall enter both physicians’ evaluations in the principal’s medical record. If the principal has appointed a health care representative, the facility shall notify such health care representative in writing that his or her authority under the instrument has commenced.

(c) The representative’s authority shall commence upon a determination under subsection (b) that the principal lacks capacity, and such authority shall remain in effect until a determination that the principal has regained capacity. Upon commencement of the representative’s authority, a representative who is not the principal’s spouse shall notify the principal’s spouse and adult children of the principal’s appointment of the representative. In the event the attending physician determines that the principal has regained capacity, the authority of the representative shall cease, but shall recommence if the principal subsequently loses capacity as determined pursuant to this section.

(d) A determination made pursuant to this section that the principal lacks capacity to make health care decisions shall not be construed as a finding that the principal lacks capacity for any other purpose.

(e) In the event the representative is required to consent to withholding or withdrawing life-prolonging procedures, the provisions of part II shall apply.

13.0803 Responsibility of the representative.


(a) The representative, in accordance with the principal’s instructions, unless such authority has been limited expressly by the principal, shall:

(1) Have the authority to act for the principal and to make all health care decisions for the principal during the principal’s incapacity;

(2) Consult expeditiously with appropriate health care providers to provide informed consent, and make only health care decisions for the principal which she/he believes the principal would have made under the circumstances if the principal were capable of making such decisions. If there is no indication of what the principal would have chosen, the representative may consider the principal’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn;

(3) Provide written consent using an appropriate form whenever consent is required, including a physician’s order not to resuscitate;

(4) Be provided access to the appropriate medical records of the principal;

(5) Apply for public benefits, such as Medicare and Medicaid, for the principal and have access to information regarding the principal’s income and assets, and banking and financial records, to the extent required to complete the application.

(b) The representative may authorize the release of information and medical records to appropriate persons to ensure the continuity of the principal’s health care and may authorize the admission, discharge or transfer of the principal to or from a health care facility or other facility or program licensed to provide long-term, tertiary or hospice care.

(c) If, after the appointment of a representative, a court appoints a guardian, the representative shall continue to make health care decisions for the principal, unless the court has modified or revoked the authority of the representative pursuant to this section. The representative may be directed by the court to report the principal’s health care status to the guardian.

(d) In the event a guardian is appointed for a principal who has executed an instrument appointing a health care representative, the court appointing the guardian shall specify in its order of guardianship what authority, if any, the guardian shall exercise over the representative. The court may, with notice to the representative and any other appropriate parties, modify or revoke the authority of the representative to make health care decisions for the ward, if the court finds the representative unfit to exercise the appointed duties.

13.0804 Procedure for making a living will.


(a) Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom being neither a spouse nor relative by blood or adoption of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal’s signature in the principal’s presence and at the principal’s direction.

(b) It is the responsibility of the principal to provide for notification to his or her attending physician that the living will has been made. In the event the principal is physically or mentally incapacitated at the time the principal is admitted to a health care facility, any other person may notify the physician or health care facility of the existence of the living will. An attending or treating physician or health care facility which is so notified shall promptly make the living will or a copy thereof a part of the principal’s medical records.

(c) A living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.

13.0805 Procedure for living will.


(a) If a person has made a living will expressing his or her desires concerning life-prolonging procedures, but has not appointed a representative pursuant to this part I, the attending physician may proceed as directed by the principal in the living will. In the event of a dispute or disagreement concerning the attending physician’s decision to withhold or withdraw life-prolonging procedures, the attending physician shall not withhold or withdraw life-prolonging procedures for 7 calendar days, during which time the party disputing the attending physician’s decision may seek review in the High Court. If a review of a disputed decision is not sought within 7 calendar days following the attending physician’s decision to withhold or withdraw life-prolonging procedures, the attending physician may proceed in accordance with the principal’s instructions.

(b) Before proceeding in accordance with the principal’s living will, it must be determined that:

(1) The principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the principal;

(2) The principal has a terminal condition, has an end-stage condition, or is in a persistent vegetative state; and

(3) Any limitations or conditions expressed orally or in a written declaration have been considered carefully and have been satisfied.

13.0806 Procedure in absence of living will.


(a) In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care representative appointed by the principal pursuant to part I unless the instrument limits the representative’s authority to consent to the withholding or withdrawal of life-prolonging procedures.

(b) Before exercising the incompetent patient’s right to forego treatment, the representative must be satisfied that:

(1) The principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the principal; and

(2) The principal has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.

13.0807 Determination of patient condition.


In determining whether a patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state, or may recover capacity, or whether a medical condition or limitation referenced in an advanced directive exists, the patient’s attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient’s medical records and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.

13.0808 Mercy killing or euthanasia not authorized—Suicide distinguished.


(a) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

(b) The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this chapter shall not, for any purpose, constitute a suicide.