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§ 3452. Definitions

As used in this chapter,

(1) "Agent" means an adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care.

(2) "Attending physician" means the physician, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient.

(3) "Capacity to make health care decisions" means the ability to understand and appreciate the nature and consequences of a health care decision, including the significant benefits and harms of and reasonable alternatives to any proposed health care.

(4) "Durable power of attorney for health care" means a document delegating to an agent the authority to make health care decisions executed in accordance with the provisions of this chapter.

(5) "Health care decision" means consent, refusal to consent, or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose or treat an individual's physical or mental condition.

(6) "Health care provider" means an individual or facility licensed, certified or otherwise authorized or permitted by law to administer health care, for profit or otherwise, in the ordinary course of business or professional practice.

(7) "Ombudsman" means a person appointed as a long-term care ombudsman under the program established within the office on aging pursuant to the Older Americans Act of 1965, as amended.

(8) "Principal" means an adult who has executed a durable power of attorney for health care.

(9) "Residential care provider" means an individual or facility licensed, certified or otherwise authorized or permitted by law to operate, for profit or otherwise, a residential care home as that term is defined in section 2002 of Title 18. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3453. Scope and duration of authority

(a) Subject to the provisions of this chapter and any express limitations set forth by the principal in the durable power of attorney for health care, the agent shall have the authority to make any and all health care decisions on the principal's behalf that the principal could make.

(b) After consultation with the attending physician and other health care providers, the agent shall make health care decisions:

(1) in accordance with the agent's knowledge of the principal's wishes and religious or moral beliefs, as stated orally, or as contained in the durable power of attorney for health care or in a terminal care document executed pursuant to the provisions of chapter 111 of Title 18 ("living will"); or

(2) if the principal's wishes are unknown, in accordance with the agent's assessment of the principal's best interests.

(c) Under a durable power of attorney for health care, the agent's authority shall be in effect only when the principal lacks capacity to make health care decisions, as certified in writing by the principal's attending physician and filed in the principal's medical record.

(d) Notwithstanding that a durable power of attorney for health care is in effect and irrespective of the principal's capacity to make health care decisions at the time, treatment may not be given to or withheld from the principal over the principal's objection. 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.

(e) Nothing in this chapter shall be construed to give an agent authority to consent to voluntary admission to any state institution or to a voluntary sterilization. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3454. Use of statutory forms

(a) Every person wishing to execute a durable power of attorney for health care shall be provided with a disclosure statement substantially in the form set forth in section 3465 of this title prior to execution. The principal shall be required to sign a statement acknowledging that he or she has received the disclosure statement and has read and understands its contents.

(b) A durable power of attorney for health care executed on or after July 1, 1988 shall be substantially in the form set forth in section 3466 of this title. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3455. Restrictions on who can act as agent

A person may not exercise the authority of agent while serving in one of the following capacities:

(1) the principal's health care provider;

(2) a nonrelative of the principal who is an employee of the principal's health care provider;

(3) the principal's residential care provider; or

(4) a nonrelative of the principal who is an employee of the principal's residential care provider. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3456. Execution and witnesses

The durable power of attorney for health care shall be signed by the principal in the presence of at least two or more subscribing witnesses, neither of whom shall, at the time of execution, be the agent, the principal's health or residential care provider or the provider's employee, the principal's spouse, heir, or reciprocal beneficiary, a person entitled to any part of the estate of the principal upon the death of the principal under a will or deed in existence or by operation of law or any other person who has, at the time of execution, any claims against the estate of the principal. The witnesses shall affirm that the principal appeared to be of sound mind and free from duress at the time the durable power of attorney for health care was signed and that the principal affirmed that he or she was aware of the nature of the documents and signed it freely and voluntarily. If the principal is physically unable to sign, the durable power of attorney for health care may be signed by the principal's name written by some other person in the principal's presence and at the principal's express direction. (Added 1987, No. 223 (Adj. Sess.), § 1; amended 1999, No. 91 (Adj. Sess.), § 33.)

§3457. Revocation

(a) A durable power of attorney for health care shall be revoked:

(1) by notification by the principal to the agent or a health or residential care provider orally, or in writing, or by any other act evidencing a specific intent to revoke the power;

(2) by execution by the principal of a subsequent durable power of attorney for health care; or

(3) by the divorce of the principal and spouse, where the spouse is the principal's agent.

(b) A principal's health or residential care provider who is informed of or provided with a revocation of a durable power of attorney for health care shall immediately record the revocation in the principal's medical record and notify the agent, the attending physician and staff responsible for the principal's care of the revocation. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3458. Inspection and disclosure of medical information

Subject to any limitations set forth in the durable power of attorney for health care by the principal, an agent whose authority is in effect may for the purpose of making health care decisions:

(1) request, review and receive any information, oral or written, regarding the principal's physical or mental health, including, but not limited to, medical and hospital records;

(2) execute any releases or other documents which may be required in order to obtain such medical information;

(3) consent to the disclosure of such medical information. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3459. Action by provider

(a) A principal's health or residential care provider, and employees thereof, having knowledge of the principal's durable power of attorney for health care, shall be bound to follow the directives of the principal's designated agent to the extent they are consistent with this chapter and the durable power of attorney for health care.

(b) If because of a moral or other conflict with a specific directive given by the agent, a principal's health or residential care provider finds it impossible to follow that directive, he or she shall forthwith have the duty to inform the agent and if possible the principal, and actively assist in selecting another health care provider or physician who is willing to honor the agent's directive. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3460. Freedom from influence

(a) No health care provider or residential care provider, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital service plan shall charge a person a different rate or require any person to execute a durable power of attorney for health care as a condition of admission to a hospital, nursing home or residential care home, nor as a condition of being insured for, or receiving health or residential care. Health or residential care shall not be refused because a person has executed a durable power of attorney for health care.

(b) A durable power of attorney for health care shall not be effective if, at the time of execution, the principal is being admitted or is a resident of a nursing or residential care home unless an ombudsman, recognized member of the clergy, attorney licensed to practice in this state, or other person as may be designated by the probate court for the county in which the facility is located, signs a statement affirming that he or she has explained the nature and effect of the durable power of attorney for health care to the principal. It is the intent of this subsection to recognize that some residents of nursing or residential care homes are insulated from a voluntary decision-making role, by virtue of the custodial nature of their care, so as to require special assurance that they are capable of willingly and voluntarily executing a durable power of attorney for health care.

(c) A durable power of attorney for health care shall not be effective if, at the time of execution, the principal is being admitted to or is a patient in a hospital unless a person designated by the hospital signs a statement that he or she has explained the nature and effect of the durable power of attorney for health care to the principal. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3461. Reciprocity

Nothing in this chapter limits the enforceability of a durable power of attorney for health care or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3462. Immunity

(a) No person acting as agent pursuant to a durable power of attorney for health care shall be subjected to criminal or civil liability for making a health care decision in good faith pursuant to the terms of the durable power of attorney for health care and the provisions of this chapter.

(b) No health or residential care provider, nor any other person acting for the provider or under the provider's control, shall be subjected to civil or criminal liability, nor be deemed to have engaged in unprofessional conduct, for any act or intentional failure to act done in good faith if the act or intentional failure to act is done pursuant to the dictates of the durable power of attorney for health care, the directives of the patient's agent and the provisions of this chapter. Nothing herein shall be construed to establish immunity for the failure to exercise due care in the provision of services. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3463. Effect of appointment of guardian

(a) On motion filed in connection with a petition for appointment of a guardian or on petition of a guardian if one has been appointed, the probate court shall consider whether the authority of an agent designated pursuant to a durable power of attorney for health care should be suspended or revoked. In making its determination, the probate court shall take into consideration the preferences of the principal as expressed in the durable power of attorney for health care.

(b) To the extent a durable power of attorney for health care conflicts with a terminal care document executed in accordance with chapter 111 of Title 18 ("living will"), the instrument executed later in time shall control. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3464. Liability for health care costs

Liability for the cost of health care provided pursuant to the agent's decision shall be the same as if the health care were provided pursuant to the principal's decision. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3465. Durable power of attorney; disclosure statement

The disclosure statement which must accompany a durable power of attorney for health care shall be in substantially the following form:

INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you when you are no longer capable of making them yourself. "Health care" means any treatment, service or procedure to maintain, diagnose or treat your physical or mental condition. Your agent therefore can have the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment.

You may state in this document any treatment you do not desire or treatment you want to be sure you receive. Your agent's authority will begin when your doctor certifies that you lack the capacity to make health care decisions. You may attach additional pages if you need more space to complete your statement.

Your agent will be obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent will have the same authority to make decisions about your health care as you would have had.

It is important that you discuss this document with your physician or other health care providers before you sign it to make sure that you understand the nature and range of decisions which may be made on your behalf. If you do not have a physician, you should talk with someone else who is knowledgeable about these issues and can answer your questions. You do not need a lawyer's assistance to complete this document, but if there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.

The person you appoint as agent should be someone you know and trust and must be at least 18 years old. If you appoint your health or residential care provider (e.g. your physician, or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person will have to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.

You should inform the person you appoint that you want him or her to be your health care agent. You should discuss this document with your agent and your physician and give each a signed copy. You should indicate on the document itself the people and institutions who will have signed copies. Your agent will not be liable for health care decisions made in good faith on your behalf.

Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so, and treatment cannot be given to you or stopped over your objection. You have the right to revoke the authority granted to your agent by informing him or her or your health care provider orally or in writing.

This document may not be changed or modified. If you want to make changes in the document you must make an entirely new one.

You may wish to designate an alternate agent in the event that your agent is unwilling, unable or ineligible to act as your agent. Any alternate agent you designate will have the same authority to make health care decisions for you.

THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO (2) OR MORE QUALIFIED WITNESSES WHO MUST BOTH BE PRESENT WHEN YOU SIGN OR ACKNOWLEDGE YOUR SIGNATURE. THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

-the person you have designated as your agent;

-your health or residential care provider or one of their employees;

-your spouse;

-your lawful heirs or beneficiaries named in your will or a deed;

-creditors or persons who have a claim against you. (Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3466. Durable power of attorney; form

The durable power of attorney shall be in substantially the following form:

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

I , …………………………………………………………………………, hereby appoint

.................... of .................................................... as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This durable power of attorney for health care shall take effect in the event I become unable to make my own health care decisions.

(a) STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS REGARDING HEALTH CARE DECISIONS.

Here you may include any specific desires or limitations you deem appropriate, such as when or what life-sustaining measures should be withheld; directions whether to continue or discontinue artificial nutrition and hydration; or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any other reason.

……………………………………………...................................................................

...........................................……………………………………………........................

……………………………………………...................................................................

……………………………………………................................................................... (attach additional pages as necessary)

(b) THE SUBJECT OF LIFE-SUSTAINING TREATMENT IS OF PARTICULAR

IMPORTANCE. For your convenience in dealing with that subject, some general statements concerning the withholding or removal of life-sustaining treatment are set forth below. IF YOU AGREE WITH ONE OF THESE STATEMENTS, YOU MAY INCLUDE THE STATEMENT IN THE BLANK SPACE ABOVE:

If I suffer a condition from which there is no reasonable prospect of regaining my ability to think and act for myself, I want only care directed to my comfort and dignity, and authorize my agent to decline all treatment (including artificial nutrition and hydration) the primary purpose of which is to prolong my life.

If I suffer a condition from which there is no reasonable prospect of regaining the ability to think and act for myself, I want care directed to my comfort and dignity and also want artificial nutrition and hydration if needed, but authorize my agent to decline all other treatment the primary purpose of which is to prolong my life.

I want my life sustained by any reasonable medical measures, regardless of my condition.

In the event the person I appoint above is unable, unwilling or unavailable to act as my health care agent, I hereby appoint ..............…………………..... of ....................................................

as alternate agent.

I hereby acknowledge that I have been provided with a disclosure statement explaining the effect of this document. I have read and understand the information contained in the disclosure statement.

The original of this document will be kept at ..........………………………………………......

and the following persons and institutions will have signed copies: ……………………
..................................................................................................................................
………………………………………………..........................................................
………………………………………………..........................................................

In witness whereof, I have hereunto signed my name this .......... day of ..............., 19 ...... . …………………………………………………............................................................

Signature

I declare that the principal appears to be of sound mind and free from duress at the time the durable power of attorney for health care is signed and that the principal has affirmed that he or she is aware of the nature of the document and is signing it freely and voluntarily.

Witness: ..…………………..........……….... Address: ……………….....................................

Witness: ……………………….................... Address: ..............................……………….......

Statement of ombudsman, hospital representative or other authorized person (to be signed only if the principal is in or is being admitted to a hospital, nursing home or residential care home):

I declare that I have personally explained the nature and effect of this durable power of attorney to the principal and that the principal understands the same.

Date: ................................................................

Address: .............................................................

Name: ......................................................................

(Added 1987, No. 223 (Adj. Sess.), § 1.)

§ 3467. Civil action

Any person who is a near relative of the principal or a responsible adult who is directly interested in the principal, including but not limited to a guardian, social worker, physician or clergyman, may file an action in superior court requesting that the durable power of attorney for health care be revoked on the grounds that the principal was not of sound mind or was under duress, fraud or undue influence when the durable power of attorney for health care was executed. (Added 1987, No. 223 (Adj. Sess.), § 1.)