S*541 Session 109 (1991-1992)
S*0541(Rat #0340, Act #0306 of 1992) General Bill, By I.E. Lourie, Bryan,
Giese, J.C. Hayes, J.M. Long and Passailaigue
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
62-5-504 so as to provide for health care powers of attorney, to define terms,
to explain the relationship between a health care power of attorney and a
durable power of attorney, to provide that the Adult Health Consent Act
applies to decisions made pursuant to a health care power of attorney, to
provide standards for determining mental incompetence, to provide execution
requirements, including witness qualifications, and a form for a health care
power of attorney, to provide specific powers for a health care agent in
addition to those provided in the health care power of attorney, to provide
that a health care agent is not liable for health care costs incurred on
behalf of a principal and is entitled to reimbursement but not compensation
for services performed under a health care power of attorney, to provide that
life-sustaining procedures may not be withheld pursuant to a durable power of
attorney if the principal is pregnant, to provide that health care providers
must follow directives of a health care agent under a power of attorney and
that the agent must give directives in accordance with the principal's
directives in the power of attorney or in a declaration of a desire for a
natural death, to provide a good faith defense to those who make and those who
rely on decisions made pursuant to a health care power of attorney, to provide
that a principal may appoint successor agents and that if no agent is
available, decisions must be made by a surrogate under the Adult Health Care
Consent Act, in accordance with the directions in the power of attorney, to
provide revocation procedures, to provide that execution and effectuation of a
health care power of attorney does not constitute suicide, to provide that a
health care power of attorney must not be required as a condition for
insurance, medical treatment, or admission to a health care facility, to
provide that this Section does not authorize mercy killing, to provide that
the absence of a health care power of attorney does not give rise to any
presumption regarding life-sustaining procedures, to provide penalties for
violations, and to provide that a physician or facility that does not follow
instructions pursuant to a health care power of attorney must attempt to find
a physician or facility that will; to amend Section 44-43-330, relating to
anatomical gifts, so as to reorder the priority of individuals who may consent
to an anatomical gift for a decedent by adding an agent under a health care
power of attorney; to amend Section 44-66-20, relating to definitions in the
Adult Health Care Consent Act, so as to revise the definition of health care;
to amend Section 44-66-30, relating to persons authorized to make health care
decisions, so as to require that those decisions must be based on the
patient's wishes, if known, and to allow the authorized person to either
consent or withhold health care; and to amend Section 62-5-501, as amended,
relating to the execution of a power of attorney not affected by physical
disability, or mental incompetence, so as to provide how physical disability
or mental incompetence may be determined, and to provide for the continued
validity of a durable power of attorney for health care; to amend Section
44-43-950, relating to consent for organ donations, so as to reorder the
priority for consent by adding an agent under a health care power of attorney;
and to provide for the validity of a durable power of attorney for health care
irrespective of amendments to Section 62-5-501 contained in this Act.-amended
title
01/23/91 Senate Introduced and read first time SJ-9
01/23/91 Senate Referred to Committee on Judiciary SJ-9
02/27/91 Senate Committee report: Favorable Judiciary SJ-16
03/05/91 Senate Read second time SJ-13
03/05/91 Senate Ordered to third reading with notice of
amendments SJ-14
03/06/91 Senate Read third time and sent to House SJ-15
03/07/91 House Introduced and read first time HJ-8
03/07/91 House Referred to Committee on Judiciary HJ-9
02/26/92 House Committee report: Favorable with amendment
Judiciary HJ-35
03/05/92 House Debate adjourned until Tuesday, March 17, 1992 HJ-2
03/18/92 House Amended HJ-28
03/18/92 House Debate adjourned until Thursday, March 19, 1992 HJ-29
03/19/92 House Read second time HJ-16
03/24/92 House Read third time and returned to Senate with
amendments HJ-18
03/25/92 Senate Concurred in House amendment and enrolled SJ-10
04/02/92 Ratified R 340
04/08/92 Signed By Governor
04/08/92 Effective date 04/08/92
04/08/92 Act No. 306
05/05/92 Copies available
(A306, R340, S541)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING SECTION 62-5-504 SO AS
TO PROVIDE FOR HEALTH CARE POWERS OF
ATTORNEY, TO DEFINE TERMS, TO EXPLAIN THE
RELATIONSHIP BETWEEN A HEALTH CARE POWER OF
ATTORNEY AND A DURABLE POWER OF ATTORNEY, TO
PROVIDE THAT THE ADULT HEALTH CARE CONSENT
ACT APPLIES TO DECISIONS MADE PURSUANT TO A
HEALTH CARE POWER OF ATTORNEY, TO PROVIDE
STANDARDS FOR DETERMINING MENTAL
INCOMPETENCE, TO PROVIDE EXECUTION
REQUIREMENTS, INCLUDING WITNESS
QUALIFICATIONS, AND A FORM FOR A HEALTH CARE
POWER OF ATTORNEY, TO PROVIDE SPECIFIC POWERS
FOR A HEALTH CARE AGENT IN ADDITION TO THOSE
PROVIDED IN THE HEALTH CARE POWER OF
ATTORNEY, TO PROVIDE THAT A HEALTH CARE AGENT
IS NOT LIABLE FOR HEALTH CARE COSTS INCURRED
ON BEHALF OF A PRINCIPAL AND IS ENTITLED TO
REIMBURSEMENT BUT NOT COMPENSATION FOR
SERVICES PERFORMED UNDER A HEALTH CARE POWER
OF ATTORNEY, TO PROVIDE THAT LIFE-SUSTAINING
PROCEDURES MAY NOT BE WITHHELD PURSUANT TO A
DURABLE POWER OF ATTORNEY IF THE PRINCIPAL IS
PREGNANT, TO PROVIDE THAT HEALTH CARE
PROVIDERS MUST FOLLOW DIRECTIVES OF A HEALTH
CARE AGENT UNDER A POWER OF ATTORNEY AND
THAT THE AGENT MUST GIVE DIRECTIVES IN
ACCORDANCE WITH THE PRINCIPAL'S DIRECTIVES IN
THE POWER OF ATTORNEY OR IN A DECLARATION OF A
DESIRE FOR A NATURAL DEATH, TO PROVIDE A GOOD
FAITH DEFENSE TO THOSE WHO MAKE AND THOSE
WHO RELY ON DECISIONS MADE PURSUANT TO A
HEALTH CARE POWER OF ATTORNEY, TO PROVIDE
THAT A PRINCIPAL MAY APPOINT SUCCESSOR AGENTS
AND THAT IF NO AGENT IS AVAILABLE, DECISIONS
MUST BE MADE BY A SURROGATE UNDER THE ADULT
HEALTH CARE CONSENT ACT, IN ACCORDANCE WITH
THE DIRECTIONS IN THE POWER OF ATTORNEY, TO
PROVIDE REVOCATION PROCEDURES, TO PROVIDE
THAT EXECUTION AND EFFECTUATION OF A HEALTH
CARE POWER OF ATTORNEY DOES NOT CONSTITUTE
SUICIDE, TO PROVIDE THAT A HEALTH CARE POWER OF
ATTORNEY MUST NOT BE REQUIRED AS A CONDITION
FOR INSURANCE, MEDICAL TREATMENT, OR
ADMISSION TO A HEALTH CARE FACILITY, TO PROVIDE
THAT THIS SECTION DOES NOT AUTHORIZE MERCY
KILLING, TO PROVIDE THAT THE ABSENCE OF A
HEALTH CARE POWER OF ATTORNEY DOES NOT GIVE
RISE TO ANY PRESUMPTION REGARDING
LIFE-SUSTAINING PROCEDURES, TO PROVIDE
PENALTIES FOR VIOLATIONS, AND TO PROVIDE THAT A
PHYSICIAN OR FACILITY THAT DOES NOT FOLLOW
INSTRUCTIONS PURSUANT TO A HEALTH CARE POWER
OF ATTORNEY MUST ATTEMPT TO FIND A PHYSICIAN
OR FACILITY THAT WILL; TO AMEND SECTION
44-43-330, RELATING TO ANATOMICAL GIFTS, SO AS TO
REORDER THE PRIORITY OF INDIVIDUALS WHO MAY
CONSENT TO AN ANATOMICAL GIFT FOR A DECEDENT
BY ADDING AN AGENT UNDER A HEALTH CARE POWER
OF ATTORNEY; TO AMEND SECTION 44-66-20, RELATING
TO DEFINITIONS IN THE ADULT HEALTH CARE
CONSENT ACT, SO AS TO REVISE THE DEFINITION OF
HEALTH CARE; TO AMEND SECTION 44-66-30, RELATING
TO PERSONS AUTHORIZED TO MAKE HEALTH CARE
DECISIONS, SO AS TO REQUIRE THAT THOSE DECISIONS
MUST BE BASED ON THE PATIENT'S WISHES, IF KNOWN,
AND TO ALLOW THE AUTHORIZED PERSON TO EITHER
CONSENT OR WITHHOLD HEALTH CARE; AND TO
AMEND SECTION 62-5-501, AS AMENDED, RELATING TO
THE EXECUTION OF A POWER OF ATTORNEY NOT
AFFECTED BY PHYSICAL DISABILITY, OR MENTAL
INCOMPETENCE, SO AS TO PROVIDE HOW PHYSICAL
DISABILITY OR MENTAL INCOMPETENCE MAY BE
DETERMINED, AND TO PROVIDE FOR THE CONTINUED
VALIDITY OF A DURABLE POWER OF ATTORNEY FOR
HEALTH CARE; TO AMEND SECTION 44-43-950,
RELATING TO CONSENT FOR ORGAN DONATIONS, SO
AS TO REORDER THE PRIORITY FOR CONSENT BY
ADDING AN AGENT UNDER A HEALTH CARE POWER OF
ATTORNEY; AND TO PROVIDE FOR THE VALIDITY OF A
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
IRRESPECTIVE OF AMENDMENTS TO SECTION 62-5-501
CONTAINED IN THIS ACT.
Be it enacted by the General Assembly of the State of South
Carolina:
Requirements; form, powers, penalties
SECTION 1. The 1976 Code is amended by adding:
"Section 62-5-504. (A) As used in this section:
(1) `Agent' or `health care agent' means an individual
designated in a health care power of attorney to make health care
decisions on behalf of a principal.
(2) `Declaration of a desire for a natural death' or
`declaration' means a document executed in accordance with the
South Carolina Death with Dignity Act or a similar document
executed in accordance with the law of another state.
(3) `Health care' means a procedure to diagnose or treat a
human disease, ailment, defect, abnormality, or complaint,
whether of physical or mental origin. It also includes the
provision of intermediate or skilled nursing care; services for the
rehabilitation of injured, disabled, or sick persons; and placement
in or removal from a facility that provides these forms of care.
(4) `Health care power of attorney' means a durable
power of attorney executed in accordance with this section.
(5) `Health care provider' means a person, health care
facility, organization, or corporation licensed, certified, or
otherwise authorized or permitted by the laws of this State to
administer health care.
(6) `Life-sustaining procedure' means a medical
procedure or intervention which serves only to prolong the dying
process. Life-sustaining procedures do not include the
administration of medication or other treatment for comfort care
or alleviation of pain. The principal shall indicate in the health
care power of attorney whether the provision of nutrition and
hydration through medically or surgically implanted tubes is
desired.
(7) `Permanent unconsciousness' means a medical
diagnosis, consistent with accepted standards of medical practice,
that a person is in a persistent vegetative state or some other
irreversible condition in which the person has no neocortical
functioning, but only involuntary vegetative or primitive reflex
functions controlled by the brain stem.
(8) `Nursing care provider' means a nursing care facility
or an employee of the facility.
(9) `Principal' means an individual who executes a health
care power of attorney. A principal must be eighteen years of age
or older and of sound mind.
(10) `Separated' means that the principal and his or her
spouse are separated pursuant to one of the following:
(a) entry of a pendente lite order in a divorce or separate
maintenance action;
(b) formal signing of a written property or marital
settlement agreement;
(c) entry of a permanent order of separate maintenance
and support or of a permanent order approving a property or
marital settlement agreement between the parties.
(B)(1) A health care power of attorney is a durable power of
attorney pursuant to Section 62-5-501. Sections that refer to a
durable power of attorney or judicial interpretations of the law
relating to durable powers of attorney apply to a health care power
of attorney to the extent that they are not inconsistent with this
section.
(2) This section does not affect the right of a person to
execute a durable power of attorney relating to health care
pursuant to other provisions of law but which does not conform to
the requirements of this section. If a durable power of attorney
for health care executed under Section 62-5-501 or under the laws
of another state does not conform to the requirements of this
section, the provisions of this section do not apply to it. However,
a court is not precluded from determining that the law applicable
to nonconforming durable powers of attorney for health care is the
same as the law set forth in this section for health care powers of
attorney.
(3) To the extent not inconsistent with this section, the
provisions of the Adult Health Care Consent Act apply to the
making of decisions by a health care agent and the
implementation of those decisions by health care providers.
(4) In determining the effectiveness of a health care
power of attorney, mental incompetence is to be determined
according to the standards and procedures for inability to consent
under Section 44-66-20(6), except that certification of mental
incompetence by the agent may be substituted for certification by
a second physician. If the certifying physician states that the
principal's mental incompetence precludes the principal from
making all health care decisions or all decisions concerning
certain categories of health care, and that the principal's mental
incompetence is permanent or of extended duration, no further
certification is necessary in regard to the stated categories of
health care decisions during the stated duration of mental
incompetence unless the agent or the attending physician believes
the principal may have regained capacity.
(C)(1) A health care power of attorney must:
(a) be substantially in the form set forth in subsection (D)
of this section;
(b) be dated and signed by the principal or in the
principal's name by another person in the principal's presence and
by his direction;
(c) be signed by at least two persons, each of whom
witnessed either the signing of the health care power of attorney
or the principal's acknowledgment of his signature on the health
care power of attorney. Each witness must state in an affidavit as
set forth in subsection (D) of this section that, at the time of the
execution of the health care power of attorney, to the extent the
witness has knowledge, the witness is not related to the principal
by blood, marriage, or adoption, either as a spouse, lineal
ancestor, descendant of the parents of the principal, or spouse of
any of them; not directly financially responsible for the principal's
medical care; not entitled to any portion of the principal's estate
upon his decease under a will of the principal then existing or as
an heir by intestate succession; not a beneficiary of a life
insurance policy of the principal; and not appointed as health care
agent or successor health care agent in the health care power of
attorney; and that no more than one witness is an employee of a
health facility in which the principal is a patient, no witness is the
attending physician or an employee of the attending physician, or
no witness has a claim against the principal's estate upon his
decease;
(d) state the name and address of the agent. A health care
agent must be an individual who is eighteen years of age or older
and of sound mind. A health care agent may not be a health care
provider, or an employee of a provider, with whom the principal
has a provider-patient relationship at the time the health care
power of attorney is executed, or an employee of a nursing care
facility in which the principal resides, or a spouse of the health
care provider or employee, unless the health care provider,
employee, or spouse is a relative of the principal.
(2) The validity of a health care power of attorney is not
affected by the principal's failure to initial any of the choices
provided in Section 4, 6, or 7 of the Health Care Power of
Attorney form or to name successor agents. If the principal fails
to indicate either of the statements in Section 7 concerning
provision of artificial nutrition and hydration, the agent does not
have authority to direct that nutrition and hydration necessary for
comfort care or alleviation of pain be withheld or withdrawn.
(D) A health care power of attorney must be substantially in
the following form:
`INFORMATION ABOUT THIS
DOCUMENT
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE
SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE
IMPORTANT FACTS:
1. THIS DOCUMENT GIVES THE PERSON YOU NAME
AS YOUR AGENT THE POWER TO MAKE HEALTH CARE
DECISIONS FOR YOU IF YOU CANNOT MAKE THE
DECISION FOR YOURSELF. THIS POWER INCLUDES THE
POWER TO MAKE DECISIONS ABOUT LIFE-SUSTAINING
TREATMENT. UNLESS YOU STATE OTHERWISE, YOUR
AGENT WILL HAVE THE SAME AUTHORITY TO MAKE
DECISIONS ABOUT YOUR HEALTH CARE AS YOU
WOULD HAVE.
2. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR
STATEMENTS OF YOUR DESIRES THAT YOU INCLUDE IN
THIS DOCUMENT. YOU MAY STATE IN THIS DOCUMENT
ANY TREATMENT YOU DO NOT DESIRE OR TREATMENT
YOU WANT TO BE SURE YOU RECEIVE. YOUR AGENT
WILL BE OBLIGATED TO FOLLOW YOUR INSTRUCTIONS
WHEN MAKING DECISIONS ON YOUR BEHALF. YOU
MAY ATTACH ADDITIONAL PAGES IF YOU NEED MORE
SPACE TO COMPLETE THE STATEMENT.
3. AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU
HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS
FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO
DO SO. AFTER YOU HAVE SIGNED THIS DOCUMENT, NO
TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER
YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT
TO MAKE THAT DECISION.
4. YOU HAVE THE RIGHT TO REVOKE THIS
DOCUMENT, AND TERMINATE YOUR AGENT'S
AUTHORITY, BY INFORMING EITHER YOUR AGENT OR
YOUR HEALTH CARE PROVIDER ORALLY OR IN
WRITING.
5. IF THERE IS ANYTHING IN THIS DOCUMENT THAT
YOU DO NOT UNDERSTAND, YOU SHOULD ASK A
SOCIAL WORKER, LAWYER, OR OTHER PERSON TO
EXPLAIN IT TO YOU.
6. THIS POWER OF ATTORNEY WILL NOT BE VALID
UNLESS TWO PERSONS SIGN AS WITNESSES. EACH OF
THESE PERSONS MUST EITHER WITNESS YOUR SIGNING
OF THE POWER OF ATTORNEY OR WITNESS YOUR
ACKNOWLEDGMENT THAT THE SIGNATURE ON THE
POWER OF ATTORNEY IS YOURS.
THE FOLLOWING PERSONS MAY NOT ACT AS
WITNESSES:
A. YOUR SPOUSE; YOUR CHILDREN,
GRANDCHILDREN, AND OTHER LINEAL DESCENDANTS;
YOUR PARENTS, GRANDPARENTS, AND OTHER LINEAL
ANCESTORS; YOUR SIBLINGS AND THEIR LINEAL
DESCENDANTS; OR A SPOUSE OF ANY OF THESE
PERSONS.
B. A PERSON WHO IS DIRECTLY FINANCIALLY
RESPONSIBLE FOR YOUR MEDICAL CARE.
C. A PERSON WHO IS NAMED IN YOUR WILL, OR, IF
YOU HAVE NO WILL, WHO WOULD INHERIT YOUR
PROPERTY BY INTESTATE SUCCESSION.
D. A BENEFICIARY OF A LIFE INSURANCE POLICY
ON YOUR LIFE.
E. THE PERSONS NAMED IN THE HEALTH CARE
POWER OF ATTORNEY AS YOUR AGENT OR SUCCESSOR
AGENT.
F. YOUR PHYSICIAN OR AN EMPLOYEE OF YOUR
PHYSICIAN.
G. ANY PERSON WHO WOULD HAVE A CLAIM
AGAINST ANY PORTION OF YOUR ESTATE (PERSONS TO
WHOM YOU OWE MONEY).
IF YOU ARE A PATIENT IN A HEALTH FACILITY, NO
MORE THAN ONE WITNESS MAY BE AN EMPLOYEE OF
THAT FACILITY.
7. YOUR AGENT MUST BE A PERSON WHO IS 18
YEARS OLD OR OLDER AND OF SOUND MIND. IT MAY
NOT BE YOUR DOCTOR OR ANY OTHER HEALTH CARE
PROVIDER THAT IS NOW PROVIDING YOU WITH
TREATMENT; OR AN EMPLOYEE OF YOUR DOCTOR OR
PROVIDER; OR A SPOUSE OF THE DOCTOR, PROVIDER,
OR EMPLOYEE; UNLESS THE PERSON IS A RELATIVE OF
YOURS.
8. YOU SHOULD INFORM THE PERSON 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. IF YOU ARE IN A HEALTH CARE
FACILITY OR A NURSING CARE FACILITY, A COPY OF
THIS DOCUMENT SHOULD BE INCLUDED IN YOUR
MEDICAL RECORD.
HEALTH CARE POWER OF
ATTORNEY
(S.C. STATUTORY FORM)
1. DESIGNATION OF HEALTH CARE AGENT
I, , hereby appoint:
(Principal)
(Agent)
(Address)
Home Telephone: Work Telephone:
as my agent to make health care decisions for me as authorized in
this document.
2. EFFECTIVE DATE AND DURABILITY
By this document I intend to create a durable power of attorney
effective upon, and only during, any period of mental
incompetence.
3. AGENT'S POWERS
I grant to my agent full authority to make decisions for me
regarding my health care. In exercising this authority, my agent
shall follow my desires as stated in this document or otherwise
expressed by me or known to my agent. In making any decision,
my agent shall attempt to discuss the proposed decision with me
to determine my desires if I am able to communicate in any way.
If my agent cannot determine the choice I would want made, then
my agent shall make a choice for me based upon what my agent
believes to be in my best interests. My agent's authority to
interpret my desires is intended to be as broad as possible, except
for any limitations I may state below.
Accordingly, unless specifically limited by Section E, below,
my agent is authorized as follows:
A. To consent, refuse, or withdraw consent to any and all types
of medical care, treatment, surgical procedures, diagnostic
procedures, medication, and the use of mechanical or other
procedures that affect any bodily function, including, but not
limited to, artificial respiration, nutritional support and hydration,
and cardiopulmonary resuscitation;
B. To authorize, or refuse to authorize, any medication or
procedure intended to relieve pain, even though such use may lead
to physical damage, addiction, or hasten the moment of, but not
intentionally cause, my death;
C. To authorize my admission to or discharge, even against
medical advice, from any hospital, nursing care facility, or similar
facility or service;
D. To take any other action necessary to making, documenting,
and assuring implementation of decisions concerning my health
care, including, but not limited to, granting any waiver or release
from liability required by any hospital, physician, nursing care
provider, or other health care provider; signing any documents
relating to refusals of treatment or the leaving of a facility against
medical advice, and pursuing any legal action in my name, and at
the expense of my estate to force compliance with my wishes as
determined by my agent, or to seek actual or punitive damages for
the failure to comply.
E. The powers granted above do not include the following powers
or are subject to the following rules or limitations:
4. ORGAN DONATION (INITIAL ONLY ONE)
My agent may ___; may not ___ consent to the donation of all or
any of my tissue or organs for purposes of transplantation.
5. EFFECT ON DECLARATION OF A DESIRE FOR A
NATURAL DEATH (LIVING WILL)
I understand that if I have a valid Declaration of a Desire for a
Natural Death, the instructions contained in the Declaration will
be given effect in any situation to which they are applicable. My
agent will have authority to make decisions concerning my health
care only in situations to which the Declaration does not
apply.
6. STATEMENT OF DESIRES AND SPECIAL
PROVISIONS
With respect to any Life-Sustaining Treatment, I direct the
following: (INITIAL ONLY ONE OF THE FOLLOWING 4
PARAGRAPHS)
(1) ____ GRANT OF DISCRETION TO AGENT. I do not want
my life to be prolonged nor do I want life-sustaining treatment to
be provided or continued if my agent believes the burdens of the
treatment outweigh the expected benefits. I want my agent to
consider the relief of suffering, my personal beliefs, the expense
involved and the quality as well as the possible extension of my
life in making decisions concerning life-sustaining treatment.
OR
(2) ______ DIRECTIVE TO WITHHOLD OR WITHDRAW
TREATMENT. I do not want my life to be prolonged and I do
not want life-sustaining treatment:
a. if I have a condition that is incurable or irreversible and,
without the administration of life-sustaining procedures, expected
to result in death within a relatively short period of time; or
b. if I am in a state of permanent unconsciousness.
OR
(3) _____ DIRECTIVE FOR MAXIMUM TREATMENT. I want
my life to be prolonged to the greatest extent possible, within the
standards of accepted medical practice, without regard to my
condition, the chances I have for recovery, or the cost of the
procedures.
OR
(4) DIRECTIVE IN MY OWN WORDS:
___________________________________________________________________________________________________________________________________________________
7. STATEMENT OF DESIRES REGARDING TUBE
FEEDING
With respect to Nutrition and Hydration provided by means of a
nasogastric tube or tube into the stomach, intestines, or veins, I
wish to make clear that (INITIAL ONLY ONE)
____ I do not want to receive these forms of artificial nutrition
and hydration, and they may be withheld or withdrawn under the
conditions given above.
OR
____ I do want to receive these forms of artificial nutrition and
hydration.
IF YOU DO NOT INITIAL EITHER OF THE ABOVE
STATEMENTS, YOUR AGENT WILL NOT HAVE
AUTHORITY TO DIRECT THAT NUTRITION AND
HYDRATION NECESSARY FOR COMFORT CARE OR
ALLEVIATION OF PAIN BE WITHDRAWN.
8. SUCCESSORS
If an agent named by me dies, becomes legally disabled, resigns,
refuses to act, becomes unavailable, or if an agent who is my
spouse is divorced or separated from me, I name the following as
successors to my agent, each to act alone and successively, in the
order named.
A. First Alternate Agent: _______________________
Address: _____________________________________
Telephone: ___________________________________
B. Second Alternate Agent: ______________________
Address: _____________________________________
Telephone: ___________________________________
9. ADMINISTRATIVE PROVISIONS
A. I revoke any prior Health Care Power of Attorney and any
provisions relating to health care of any other prior power of
attorney.
B. This power of attorney is intended to be valid in any
jurisdiction in which it is presented.
10. UNAVAILABILITY OF AGENT
If at any relevant time the Agent or Successor Agents named
herein are unable or unwilling to make decisions concerning my
health care, and those decisions are to be made by a guardian, by
the Probate Court, or by a surrogate pursuant to the Adult Health
Care Consent Act, it is my intention that the guardian, Probate
Court, or surrogate make those decisions in accordance with my
directions as stated in this document.
BY SIGNING HERE I INDICATE THAT I UNDERSTAND
THE CONTENTS OF THIS DOCUMENT AND THE EFFECT
OF THIS GRANT OF POWERS TO MY AGENT.
I sign my name to this Health Care Power of Attorney on this
____ day of_________________, 19__. My current home
address is:
__________________________________________________________________________________________________
Signature: _______________________________________
Name: ___________________________________________
WITNESS STATEMENT
I declare, on the basis of information and belief, that the person
who signed or acknowledged this document (the principal) is
personally known to me, that he/she signed or acknowledged this
Health Care Power of Attorney in my presence, and that he/she
appears to be of sound mind and under no duress, fraud, or undue
influence. I am not related to the principal by blood, marriage, or
adoption, either as a spouse, a lineal ancestor, descendant of the
parents of the principal, or spouse of any of them. I am not
directly financially responsible for the principal's medical care. I
am not entitled to any portion of the principal's estate upon his
decease, whether under any will or as an heir by intestate
succession, nor am I the beneficiary of an insurance policy on the
principal's life, nor do I have a claim against the principal's estate
as of this time. I am not the principal's attending physician, nor an
employee of the attending physician. No more than one witness is
an employee of a health facility in which the principal is a patient.
I am not appointed as Health Care Agent or Successor Health
Care Agent by this document.
Witness No. 1
Signature: __________________ Date: _______________
Print Name: _________________ Telephone: __________
Residence Address: _______________________________
________________________________________________
Witness No. 2
Signature: __________________ Date: _______________
Print Name: _________________ Telephone: __________
Residence Address: _______________________________
_________________________________________________'.
(E) A health care agent has, in addition to the powers set forth
in the health care power of attorney, the following specific
powers:
(1) to have access to the principal's medical records and
information to the same extent that the principal would have
access, including the right to disclose the contents to others;
(2) to contract on the principal's behalf for placement in a
health care or nursing care facility or for health care related
services, without the agent incurring personal financial liability
for the contract;
(3) to hire and fire medical, social service, and other
support personnel responsible for the principal's care.
(F)(1) The agent is not entitled to compensation for services
performed under the health care power of attorney, but the agent
is entitled to reimbursement for all reasonable expenses incurred
as a result of carrying out the health care power of attorney or the
authority granted by this section.
(2) The agent's consent to health care or to the provision
of services to the principal does not cause the agent to be liable
for the costs of the care or services.
(G) If a principal has been diagnosed as pregnant,
life-sustaining procedures may not be withheld or withdrawn
pursuant to the health care power of attorney during the course of
the principal's pregnancy. This subsection does not otherwise
affect the agent's authority to make decisions concerning the
principal's obstetrical and other health care during the course of
the pregnancy.
(H) A health care provider or nursing care provider having
knowledge of the principal's health care power of attorney has a
duty to follow directives of the agent that are consistent with the
health care power of attorney to the same extent as if they were
given by the principal. If it is uncertain whether a directive is
consistent with the health care power of attorney, the health care
provider, nursing care provider, agent, or other interested person
may petition the probate court for an order determining the
authority of the agent to give the directive.
(I) An agent acting pursuant to a health care power of
attorney shall make decisions concerning the principal's health
care in accordance with the principal's directives in the health care
power of attorney and with any other statements of intent by the
principal that are known to the agent and are not inconsistent with
the directives in the health care power of attorney. If a principal
has a valid Declaration of a Desire for a Natural Death pursuant to
Title 44, Chapter 77, the declaration must be given effect in any
situation to which it is applicable. The agent named in the health
care power of attorney has authority to make decisions only in
situations to which the declaration does not apply. However,
nothing herein prevents the principal or a person designated by
the principal in the declaration from revoking the declaration as
provided in Section 44-77-80.
(J)(1) A person who relies in good faith upon a person's
representation that he is the person named as agent in a health
care power of attorney is not subject to civil or criminal liability
or disciplinary action for recognizing the agent's authority.
(2) A health care provider or nursing care provider who in
good faith relies on a health care decision made by an agent or
successor agent is not subject to civil or criminal liability or
disciplinary action on account of relying on the decision.
(3) An agent who in good faith makes a health care
decision pursuant to a health care power of attorney is not subject
to civil or criminal liability on account of the substance of the
decision.
(K)(1) The principal may appoint one or more successor
agents in the health care power of attorney in the event an agent
dies, becomes legally disabled, resigns, refuses to act, is
unavailable, or, if the agent is the spouse of the principal, becomes
divorced or separated from the principal. A successor agent will
succeed to all duties and powers given to the agent in the health
care power of attorney.
(2) If no agent or successor agent is available, willing,
and qualified to make a decision concerning the principal's health
care, the decision must be made according to the provisions of and
by the person authorized by the Adult Health Care Consent
Act.
(3) All directives, statements of personal values, or
statements of intent made by the principal in the health care power
of attorney must be treated as exercises of the principal's right to
direct the course of his health care. Decisions concerning the
principal's health care made by a guardian, by the probate court,
or by a surrogate pursuant to the Adult Health Care Consent Act,
must be made in accordance with the directions stated in the
health care power of attorney.
(L)(1) A health care power of attorney may be revoked in the
following ways:
(a) by a writing, an oral statement, or any other act
constituting notification by the principal to the agent or to a health
care provider responsible for the principal's care of the principal's
specific intent to revoke the health care power of attorney; or
(b) by the principal's execution of a subsequent health
care power of attorney or the principal's execution of a subsequent
durable power of attorney under Section 62-5-501 if the durable
power of attorney states an intention that the health care power of
attorney be revoked or if the durable power of attorney is
inconsistent with the health care power of attorney.
(2) A health care provider who is informed of or provided
with a revocation of a health care power of attorney immediately
must record the revocation in the principal's medical record and
notify the agent, the attending physician, and all other health care
providers or nursing care providers who are responsible for the
principal's care.
(M) The execution and effectuation of a health care power
of attorney does not constitute suicide for any purpose.
(N) No person may be required to sign a health care power of
attorney in accordance with this section as a condition for
coverage under an insurance contract or for receiving medical
treatment or as a condition of admission to a health care or
nursing care facility.
(O) Nothing in this section may be construed to authorize or
approve mercy killing or to permit any affirmative or deliberate
act or omission to end life other than to permit the natural process
of dying.
(P) The absence of a health care power of attorney by an adult
patient does not give rise to a presumption of his intent to consent
to or refuse death prolonging procedures. Nothing in this section
impairs other legal rights or legal responsibilities which a person
may have to effect the provision or the withholding or withdrawal
of life-sustaining procedures in a lawful manner.
(Q)(1) If a person coerces or fraudulently induces another
person to execute a health care power of attorney, falsifies or
forges a health care power of attorney, or wilfully conceals,
cancels, obliterates, or destroys a revocation of a health care
power of attorney, and the principal dies as a result of the
withdrawal or withholding of treatment pursuant to the health care
power of attorney, that person is subject to prosecution in
accordance with the criminal laws of this State.
(2) Nothing in this section prohibits a person from
informing another person of the existence of this section,
delivering to another person a copy of this section or a form for a
health care power of attorney, or counseling another person in
good faith concerning the execution of a health care power of
attorney.
(3) If a person wilfully conceals, cancels, defaces,
obliterates, or damages a health care power of attorney without
the principal's consent, or falsifies or forges a revocation of a
health care power of attorney, or otherwise prevents the
implementation of the principal's wishes as stated in a health care
power of attorney, that person breaches a duty owed to the
principal and is responsible for payment of any expenses or other
damages incurred as a result of the wrongful act.
(R) A physician or health care facility electing for any reason
not to follow an agent's instruction that life-sustaining procedures
be withheld or withdrawn as authorized in the health care power
of attorney shall make a reasonable effort to locate a physician or
health care facility that will follow the instruction and has a duty
to transfer the patient to that physician or facility. If a nurse or
other employee of a health care provider or nursing care provider
gives notice that the employee does not wish to participate in the
withholding or withdrawal of life-sustaining procedures as
directed by an agent, a reasonable effort shall be made by the
physician and the health care provider or nursing care provider to
effect the withholding or withdrawal of life-sustaining procedures
without the participation of the employee."
Anatomical gifts, authority to consent
SECTION 2. Section 44-43-330(b) of the 1976 Code is amended
to read:
"(b) Any of the following persons, in order of priority
stated, when persons in prior classes are not available at the time
of death, and in the absence of actual notice of contrary
indications by the decedent or actual notice of opposition by a
member of the same or a prior class, may give all or any part of
the decedent's body for any purposes specified in Section
44-43-340:
(1) a health care agent or other attorney in fact authorized to
make such gifts by a health care power of attorney or by a durable
power of attorney executed pursuant to law;
(2) the spouse;
(3) an adult son or daughter;
(4) either parent;
(5) an adult brother or sister;
(6) a guardian of the person of the decedent at the time of his
death;
(7) any other person authorized or under obligation to dispose
of the body."
Adult Health Care Consent Act, definitions
SECTION 3. Section 44-66-20(1) of the 1976 Code, as added by
Act 472 of 1990, is amended to read:
"(1) `Health care' means a procedure to diagnose or
treat a human disease, ailment, defect, abnormality, or complaint,
whether of physical or mental origin. It also includes the provision
of intermediate or skilled nursing care; services for the
rehabilitation of injured, disabled, or sick persons; and the
placement in or removal from a facility that provides these forms
of care."
Priority to consent to health care
SECTION 4. Section 44-66-30 of the 1976 Code, as added by
Act 472 of 1990, is amended by adding:
"(F) A person authorized to make health care decisions
under subsection (A) of this section must base those decisions on
the patient's wishes to the extent that the patient's wishes can be
determined. Where the patient's wishes cannot be determined, the
person must base the decision on the patient's best interest.
(G) A person authorized to make health care decisions under
subsection (A) of this section either may consent or withhold
consent to health care on behalf of the patient."
Power of attorney, when not affected by disability
SECTION 5. Section 62-5-501(A) of the 1976 Code, as last
amended by Act 521 of 1990, is further amended to read:
"(A) Whenever a principal designates another his
attorney in fact by a power of attorney in writing and the writing
contains (1) the words `This power of attorney is not affected by
physical disability or mental incompetence of the principal which
renders the principal incapable of managing his own estate', (2)
the words `This power of attorney becomes effective upon the
physical disability or mental incompetence of the principal', or (3)
similar words showing the intent of the principal that the authority
conferred is exercisable notwithstanding his physical disability or
mental incompetence or either physical disability or mental
incompetence, the authority of the attorney in fact is exercisable
by him as provided in the power on behalf of the principal
notwithstanding later physical disability or mental incompetence
of the principal or later uncertainty as to whether the principal is
dead or alive. The power may define `physical disability' or
`mental incompetence' and may set forth the procedures for
determining whether the principal is physically disabled or
mentally incompetent. If no definition of mental incompetence or
procedures for determining mental incompetence are set forth, and
the authority of the attorney in fact relates solely to health care,
mental incompetence is to be determined according to the
standards and procedures for inability to consent under Section
44-66-20(6) of the Adult Health Care Consent Act. The authority
of the attorney in fact to act on behalf of the principal must be set
forth in the power and may relate to any act, power, duty, right, or
obligation which the principal has or may acquire relating to the
principal or any matter, transaction, or property, including the
power to consent or withhold consent on behalf of the principal to
health care. The attorney in fact has a fiduciary relationship with
the principal and is accountable and responsible as a fiduciary.
All acts done by the attorney in fact pursuant to the power during
a period of physical disability or mental incompetence or
uncertainty as to whether the principal is dead or alive have the
same effect and inure to the benefit of and bind the principal or
his heirs, devisees, legatees, and personal representative as if the
principal were alive, mentally competent, and not disabled
physically."
Validity of power of attorney for health care
decisions
SECTION 6. Section 62-5-501 of the 1976 Code, as last
amended by an act of 1992 bearing ratification number 263, is
further amended by adding:
"(F) A properly executed durable power of attorney that
authorizes an attorney in fact to make health care decisions or
other decisions regarding the principal is valid whether or not it
was executed after May 14, 1990."
Organ and tissue donation, priority to consent
SECTION 7. Section 44-43-950 of the 1976 Code, as added by
Act 29 of 1991, is amended to read:
"Section 44-43-950. As provided in Section 44-43-330,
unless there has been notice of opposition by a decedent or actual
notice of opposition by a member of the same or a prior class, the
following persons in the stated order of priority may give consent
for organ or tissue donation, or both:
(1) a health care agent or other attorney in fact authorized to
make such gifts by a health care power of attorney or by a durable
power of attorney executed pursuant to law;
(2) spouse;
(3) son or daughter eighteen years of age or older;
(4) either parent;
(5) brother or sister eighteen years of age or older;
(6) guardian of the decedent at the time of death;
(7) other person authorized or under obligation to dispose of
the body."
Validity of durable power of attorney for health
decisions
SECTION 8. The validity of a durable power of attorney that
authorizes an attorney to make health care decisions regarding the
principal properly executed pursuant to Section 62-5-501 of the
1976 Code before or after the effective date of this act is not
affected by the amendments to Part 5, Article 5, Title 62 of the
1976 Code contained in this act.
Time effective
SECTION 9. This act takes effect upon approval by the
Governor.
Approved the 8th day of April, 1992. |