REPORT TITLE:
Health Care Decisions
DESCRIPTION:
Adopts a comprehensive, modified uniform health-care decisions
act which would permit a competent individual to control
decisions relating to his or her own medical care. (HB171 CD1)
171
HOUSE OF REPRESENTATIVES H.B. NO. H.D. 2
TWENTIETH LEGISLATURE, 1999 S.D. 2
STATE OF HAWAII C.D. 1
________________________________________________________________
________________________________________________________________
A BILL FOR AN ACT
RELATING TO HEALTH CARE DECISIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. The Hawaii Revised Statutes is amended by adding
2 a new chapter to be appropriately designated and to read as
3 follows:
4 "CHAPTER
5 UNIFORM HEALTH-CARE DECISIONS ACT (MODIFIED)
6 § -1 Short title. This chapter may be cited as the
7 Uniform Health-Care Decisions Act (Modified).
8 § -2 Definitions. Whenever used in this chapter, unless
9 the context otherwise requires:
10 "Advance health-care directive" means an individual
11 instruction or a power of attorney for health care.
12 "Agent" means an individual designated in a power of
13 attorney for health care to make a health-care decision for the
14 individual granting the power.
15 "Best interest" means that the benefits to the individual
16 resulting from a treatment outweigh the burdens to the individual
17 resulting from that treatment and shall include:
18 (1) The effect of the treatment on the physical, emotional,
19 and cognitive functions of the patient;
Page 2 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (2) The degree of physical pain or discomfort caused to the
2 individual by the treatment or the withholding or
3 withdrawal of the treatment;
4 (3) The degree to which the individual's medical condition,
5 the treatment, or the witholding or withdrawal of
6 treatment, results in a severe and continuing
7 impairment;
8 (4) The effect of the treatment on the life expectancy of
9 the patient;
10 (5) The prognosis of the patient for recovery, with and
11 without the treatment;
12 (6) The risks, side effects, and benefits of the treatment
13 or the withholding of treatment; and
14 (7) The religious beliefs and basic values of the
15 individual receiving treatment, to the extent that
16 these may assist the surrogate decision-maker in
17 determining benefits and burdens.
18 "Capacity" means an individual's ability to understand the
19 significant benefits, risks, and alternatives to proposed health
20 care and to make and communicate a health-care decision.
21 "Emancipated minor" means a person under eighteen years of
22 age who is totally self-supporting.
Page 3 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 "Guardian" means a judicially appointed guardian or
2 conservator having authority to make a health-care decision for
3 an individual.
4 "Health care" means any care, treatment, service, or
5 procedure to maintain, diagnose, or otherwise affect an
6 individual's physical or mental condition, including:
7 (1) Selection and discharge of health-care providers and
8 institutions;
9 (2) Approval or disapproval of diagnostic tests, surgical
10 procedures, programs of medication, and orders not to
11 resuscitate; and
12 (3) Direction to provide, withhold, or withdraw artificial
13 nutrition and hydration; provided that withholding or
14 withdrawing artificial nutrition or hydration is in
15 accord with generally accepted health care standards
16 applicable to health care providers or institutions.
17 "Health-care decision" means a decision made by an
18 individual or the individual's agent, guardian, or surrogate,
19 regarding the individual's health care.
20 "Health-care institution" means an institution, facility, or
21 agency licensed, certified, or otherwise authorized or permitted
22 by law to provide health care in the ordinary course of business.
Page 4 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 "Health-care provider" means an individual licensed,
2 certified, or otherwise authorized or permitted by law to provide
3 health care in the ordinary course of business or practice of a
4 profession.
5 "Individual instruction" means an individual's direction
6 concerning a health-care decision for the individual.
7 "Interested persons" means the patient's spouse, unless
8 legally separated or estranged, a reciprocal beneficiary, any
9 adult child, either parent of the patient, an adult sibling or
10 adult grandchild of the patient, or any adult who has exhibited
11 special care and concern for the patient and who is familiar with
12 the patient's personal values.
13 "Person" means an individual, corporation, business trust,
14 estate, trust, partnership, association, joint venture,
15 government, governmental subdivision, agency, or instrumentality,
16 or any other legal or commercial entity.
17 "Physician" means an individual authorized to practice
18 medicine or osteopathy under chapter 453 or 460.
19 "Power of attorney for health care" means the designation of
20 an agent to make health-care decisions for the individual
21 granting the power.
Page 5 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 "Primary physician" means a physician designated by an
2 individual or the individual's agent, guardian, or surrogate, to
3 have primary responsibility for the individual's health care or,
4 in the absence of a designation or if the designated physician is
5 not reasonably available, a physician who undertakes the
6 responsibility.
7 "Reasonably available" means able to be contacted with a
8 level of diligence appropriate to the seriousness and urgency of
9 a patient's health care needs, and willing and able to act in a
10 timely manner considering the urgency of the patient's health
11 care needs.
12 "State" means a state of the United States, the District of
13 Columbia, the Commonwealth of Puerto Rico, or a territory or
14 insular possession subject to the jurisdiction of the United
15 States.
16 "Supervising health-care provider" means the primary
17 physician or the physician's designee, or the health-care
18 provider or the provider's designee who has undertaken primary
19 responsibility for an individual's health care.
20 "Surrogate" means an individual, other than a patient's
21 agent or guardian, authorized under this chapter to make a
22 health-care decision for the patient.
Page 6 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 § -3 Advance health-care directives.(a) An adult or
2 emancipated minor may give an individual instruction. The
3 instruction may be oral or written. The instruction may be
4 limited to take effect only if a specified condition arises.
5 (b) An adult or emancipated minor may execute a power of
6 attorney for health care, which may authorize the agent to make
7 any health-care decision the principal could have made while
8 having capacity. The power remains in effect notwithstanding the
9 principal's later incapacity and may include individual
10 instructions. Unless related to the principal by blood,
11 marriage, or adoption, an agent may not be an owner, operator, or
12 employee of the health-care institution at which the principal is
13 receiving care. The power shall be in writing, contain the date
14 of its execution, be signed by the principal, and be witnessed by
15 one of the following methods:
16 (1) Signed by at least two individuals, each of whom
17 witnessed either the signing of the instrument by the
18 principal or the principal's acknowledgement of the
19 signature of the instrument; or
20 (2) Acknowledged before a notary public at any place within
21 this State.
22 (c) A witness for a power of attorney for health care shall
23 not be:
Page 7 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (1) A health-care provider;
2 (2) An employee of a health-care provider or facility; or
3 (3) The agent.
4 (d) At least one of the individuals used as a witness for a
5 power of attorney for health care shall be someone who is
6 neither:
7 (1) Related to the principal by blood, marriage, or
8 adoption; nor
9 (2) Entitled to any portion of the estate of the principal
10 upon the principal's death under any will or codicil
11 thereto of the principal existing at the time of
12 execution of the power of attorney for health care or
13 by operation of law then existing.
14 (e) Unless otherwise specified in a power of attorney for
15 health care, the authority of an agent becomes effective only
16 upon a determination that the principal lacks capacity, and
17 ceases to be effective upon a determination that the principal
18 has recovered capacity.
19 (f) Unless otherwise specified in a written advance health-
20 care directive, a determination that an individual lacks or has
21 recovered capacity, or that another condition exists that affects
22 an individual instruction or the authority of an agent, shall be
23 made by the primary physician.
Page 8 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (g) An agent shall make a health-care decision in
2 accordance with the principal's individual instructions, if any,
3 and other wishes to the extent known to the agent. Otherwise,
4 the agent shall make the decision in accordance with the agent's
5 determination of the principal's best interest. In determining
6 the principal's best interest, the agent shall consider the
7 principal's personal values to the extent known to the agent.
8 (h) A health-care decision made by an agent for a principal
9 shall be effective without judicial approval.
10 (i) A written advance health-care directive may include the
11 individual's nomination of a guardian of the person.
12 (j) An advance health-care directive shall be valid for
13 purposes of this chapter if it complies with this chapter, or if
14 it was executed in compliance with the laws of the state where it
15 was executed.
16 § -4 Revocation of advance health-care directive.(a)
17 An individual may revoke the designation of an agent only by a
18 signed writing or by personally informing the supervising health-
19 care provider.
20 (b) An individual may revoke all or part of an advance
21 health-care directive, other than the designation of an agent, at
22 any time and in any manner that communicates an intent to revoke.
Page 9 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (c) A health-care provider, agent, guardian, or surrogate
2 who is informed of a revocation shall promptly communicate the
3 fact of the revocation to the supervising health-care provider
4 and to any health-care institution at which the patient is
5 receiving care.
6 (d) A decree of annulment, divorce, dissolution of
7 marriage, or legal separation revokes a previous designation of a
8 spouse as agent unless otherwise specified in the decree or in a
9 power of attorney for health care.
10 (e) An advance health-care directive that conflicts with an
11 earlier advance health-care directive revokes the earlier
12 directive to the extent of the conflict.
13 § -5 Health-care decisions; surrogates. (a) A patient
14 may designate or disqualify any individual to act as a surrogate
15 by personally informing the supervising health-care provider. In
16 the absence of such a designation, or if the designee is not
17 reasonably available, a surrogate may be appointed to make a
18 health-care decision for the patient.
19 (b) A surrogate may make a health care decision for a
20 patient who is an adult or emancipated minor if the patient has
21 been determined by the primary physician to lack capacity and no
22 agent or guardian has been appointed or the agent or guardian is
Page 10 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 not reasonably available. Upon a determination that a patient
2 lacks decisional capacity to provide informed consent to or
3 refusal of medical treatment, the primary physician or the
4 physican's designee shall make reasonable efforts to notify the
5 patient of the patient's lack of capacity. The primary
6 physician, or the physician's designee, shall make reasonable
7 efforts to locate as many interested persons as practicable, and
8 the primary physician may rely on such individuals to notify
9 other family members or interested persons.
10 (c) Upon locating interested persons, the primary
11 physician, or the physician's designee, shall inform such persons
12 of the patient's lack of decisional capacity and that a surrogate
13 decision-maker should be selected for the patient.
14 (d) Interested persons shall make reasonable efforts to
15 reach a consensus as to who among them shall make health-care
16 decisions on behalf of the patient. The person selected to act
17 as the patient's surrogate should be the person who has a close
18 relationship with the patient and who is the most likely to be
19 currently informed of the patient's wishes regarding health-care
20 decisions. If any of the interested persons disagrees with the
21 selection or the decision of the surrogate, or, if after
22 reasonable efforts the interested persons are unable to reach a
Page 11 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 consensus as to who should act as the surrogate decision-maker,
2 then any of the interested persons may seek guardianship of the
3 patient by initiating guardianship proceedings pursuant to
4 chapter 551. Only interested persons involved in the discussions
5 to choose a surrogate may initiate such proceedings with regard
6 to the patient.
7 (e) If any interested person, the guardian, or primary
8 physician believes the patient has regained decisional capacity,
9 the primary physician shall reexamine the patient and determine
10 whether or not the patient has regained decisional capacity and
11 shall enter a decision and the basis for such decision into the
12 patient's medical record and shall notify the patient, the
13 surrogate decision-maker, and the person who initiated the
14 redetermination of decisional capacity.
15 (f) A surrogate who has been designated by the patient may
16 make health-care decisions for the patient that the patient could
17 make on the patient's own behalf.
18 (g) A surrogate who has not been designated by the patient
19 may make all health-care decisions for the patient that the
20 patient could make on the patient's own behalf, except that
21 artificial nutrition and hydration may be withheld or withdrawn
22 for a patient upon a decision of the surrogate only when the
Page 12 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 primary physician and a second independent physician certify in
2 the patient's medical records that the provision or continuation
3 of artificial nutrition or hydration is merely prolonging the act
4 of dying and the patient is highly unlikely to have any
5 neurological response in the future.
6 The surrogate who has not been designated by the patient
7 shall make health-care decisions for the patient based on the
8 wishes of the patient, or, if the wishes of the patient are
9 unknown or unclear, on the patient's best interest.
10 The decision of a surrogate who has not been designated by
11 the patient regarding whether life-sustaining procedures should
12 be provided, withheld, or withdrawn shall not be based, in whole
13 or in part, on either a patient's preexisting, long-term mental
14 or physical disability, or a patient's economic status. A
15 surrogate who has not been designated by the patient shall inform
16 the patient, to the extent possible, of the proposed procedure
17 and the fact that someone else is authorized to make a decision
18 regarding that procedure.
19 (h) A health-care decision made by a surrogate for a
20 patient is effective without judicial approval.
21 (i) A supervising health-care provider shall require a
22 surrogate to provide a written declaration under the penalty of
Page 13 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 false swearing stating facts and circumstances reasonably
2 sufficient to establish the claimed authority.
3 § -6 Decisions by guardian.(a) A guardian shall
4 comply with the ward's individual instructions and shall not
5 revoke the ward's pre-incapacity advance health-care directive
6 unless expressly authorized by a court.
7 (b) Absent a court order to the contrary, a health-care
8 decision of an agent takes precedence over that of a guardian.
9 (c) A health-care decision made by a guardian for the ward
10 is effective without judicial approval.
11 § -7 Obligations of health-care provider. (a) Before
12 implementing a health-care decision made for a patient, a
13 supervising health-care provider, if possible, shall promptly
14 communicate to the patient the decision made and the identity of
15 the person making the decision.
16 (b) A supervising health-care provider who knows of the
17 existence of an advance health-care directive, a revocation of an
18 advance health-care directive, or a designation or
19 disqualification of a surrogate, shall promptly record its
20 existence in the patient's health-care record and, if it is in
21 writing, shall request a copy and if one is furnished shall
22 arrange for its maintenance in the health-care record.
Page 14 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (c) A supervising health-care provider who makes or is
2 informed of a determination that a patient lacks or has recovered
3 capacity, or that another condition exists which affects an
4 individual instruction or the authority of an agent, guardian, or
5 surrogate, shall promptly record the determination in the
6 patient's health-care record and communicate the determination to
7 the patient, if possible, and to any person then authorized to
8 make health-care decisions for the patient.
9 (d) Except as provided in subsections (e) and (f), a
10 health-care provider or institution providing care to a patient
11 shall:
12 (1) Comply with an individual instruction of the patient
13 and with a reasonable interpretation of that
14 instruction made by a person then authorized to make
15 health-care decisions for the patient; and
16 (2) Comply with a health-care decision for the patient made
17 by a person then authorized to make health-care
18 decisions for the patient to the same extent as if the
19 decision had been made by the patient while having
20 capacity.
21 (e) A health-care provider may decline to comply with an
22 individual instruction or health-care decision for reasons of
Page 15 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 conscience. A health-care institution may decline to comply with
2 an individual instruction or health-care decision if the
3 instruction or decision is contrary to a policy of the
4 institution which is expressly based on reasons of conscience and
5 if the policy was timely communicated to the patient or to a
6 person then authorized to make health-care decisions for the
7 patient.
8 (f) A health-care provider or institution may decline to
9 comply with an individual instruction or health-care decision
10 that requires medically ineffective health care or health care
11 contrary to generally accepted health-care standards applicable
12 to the health-care provider or institution.
13 (g) A health-care provider or institution that declines to
14 comply with an individual instruction or health-care decision
15 shall:
16 (1) Promptly so inform the patient, if possible, and any
17 person then authorized to make health-care decisions
18 for the patient;
19 (2) Provide continuing care to the patient until a transfer
20 can be effected; and
21 (3) Unless the patient or person then authorized to make
22 health-care decisions for the patient refuses
Page 16 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 assistance, immediately make all reasonable efforts to
2 assist in the transfer of the patient to another
3 health-care provider or institution that is willing to
4 comply with the instruction or decision.
5 (h) A health-care provider or institution may not require
6 or prohibit the execution or revocation of advance health-care
7 directive as a condition for providing health care.
8 § -8 Health-care information. Unless otherwise
9 specified in an advance health-care directive, a person then
10 authorized to make health-care decisions for a patient has the
11 same rights as the patient to request, receive, examine, copy,
12 and consent to the disclosure of medical or any other health-care
13 information.
14 § -9 Immunities.(a) A health-care provider or
15 institution acting in good faith and in accordance with generally
16 accepted health-care standards applicable to the health-care
17 provider or institution shall not be subject to civil or criminal
18 liability or to discipline for unprofessional conduct for:
19 (1) Complying with a health-care decision of a person
20 apparently having authority to make a health-care
21 decision for a patient, including a decision to
22 withhold or withdraw health care;
Page 17 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (2) Declining to comply with a health-care decision of a
2 person based on a belief that the person then lacked
3 authority; or
4 (3) Complying with an advance health-care directive and
5 assuming that the directive was valid when made and has
6 not been revoked or terminated.
7 (b) An individual acting as agent, guardian, or surrogate
8 under this chapter shall not be subject to civil or criminal
9 liability or to discipline for unprofessional conduct for health-
10 care decisions made in good faith.
11 § -10 Statutory damages.(a) A health-care provider or
12 institution that intentionally violates this chapter shall be
13 subject to liability to the individual or the individual's estate
14 for damages of $500 or actual damages resulting from the
15 violation, whichever is greater, plus reasonable attorney's fees.
16 (b) A person who intentionally falsifies, forges, conceals,
17 defaces, or obliterates an individual's advance health-care
18 directive or a revocation of an advance health-care directive
19 without the individual's consent, or who coerces or fraudulently
20 induces an individual to give, revoke, or not to give an advance
21 health-care directive, shall be subject to liability to that
22 individual for damages of $2,500 or actual damages resulting from
Page 18 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 the action, whichever is greater, plus reasonable attorney's
2 fees.
3 § -11 Capacity.(a) This chapter does not affect the
4 right of an individual to make health-care decisions while having
5 capacity to do so.
6 (b) An individual is presumed to have capacity to make a
7 health-care decision, to give or revoke an advance health-care
8 directive, and to designate or disqualify a surrogate.
9 § -12 Effect of copy. A copy of a written advance
10 health-care directive, revocation of an advance health-care
11 directive, or designation or disqualification of a surrogate has
12 the same effect as the original.
13 § -13 Effect of this chapter.(a) This chapter shall
14 not create a presumption concerning the intention of an
15 individual who has not made or who has revoked an advance
16 health-care directive.
17 (b) Death resulting from the withholding or withdrawal of
18 health care in accordance with this chapter shall not for any
19 purpose constitute a suicide or homicide or legally impair or
20 invalidate a policy of insurance or an annuity providing a death
21 benefit, notwithstanding any term of the policy or annuity to the
22 contrary.
Page 19 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (c) This chapter shall not authorize mercy killing,
2 assisted suicide, euthanasia, or the provision, withholding, or
3 withdrawal of health care, to the extent prohibited by other
4 statutes of this State.
5 (d) This chapter shall not authorize or require a
6 health-care provider or institution to provide health care
7 contrary to generally accepted health-care standards applicable
8 to the health-care provider or institution.
9 (e) This chapter shall not authorize an agent or surrogate
10 to consent to the admission of an individual to a psychiatric
11 facility as defined in chapter 334, unless the individual's
12 written advance health-care directive expressly so provides.
13 (f) This chapter shall not affect other statutes of this
14 State governing treatment for mental illness of an individual
15 involuntarily committed to a psychiatric facility.
16 (g) This chapter shall not apply to a patient diagnosed as
17 pregnant by the attending physician.
18 § -14 Judicial relief. On petition of a patient, the
19 patient's agent, guardian, or surrogate, or a health-care
20 provider or institution involved with the patient's care, any
21 court of competent jurisdiction may enjoin or direct a health-
22 care decision or order other equitable relief. A proceeding
Page 20 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 under this section shall be governed by part 3 of article V of
2 chapter 560.
3 § -15 Uniformity of application and construction. This
4 chapter shall be applied and construed to effectuate its general
5 purpose to make uniform the law with respect to the subject of
6 this chapter among states enacting it.
7 § -16 Optional form. The following sample form may be
8 used to create an advance health-care directive. This form may
9 be duplicated. This form may be modified to suit the needs of
10 the person, or a completely different form may be used that
11 contains the substance of the following form.
12 "ADVANCE HEALTH-CARE DIRECTIVE
13 Explanation
14 You have the right to give instructions about your own
15 health care. You also have the right to name someone else to
16 make health-care decisions for you. This form lets you do either
17 or both of these things. It also lets you express your wishes
18 regarding the designation of your health care provider. If you
19 use this form, you may complete or modify all or any part of it.
20 You are free to use a different form.
21 Part 1 of this form is a power of attorney for health care.
22 Part 1 lets you name another individual as agent to make health-
Page 21 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 care decisions for you if you become incapable of making your own
2 decisions or if you want someone else to make those decisions for
3 you now even though you are still capable. You may name an
4 alternate agent to act for you if your first choice is not
5 willing, able, or reasonably available to make decisions for you.
6 Unless related to you, your agent may not be an owner, operator,
7 or employee of a health-care institution where you are receiving
8 care.
9 Unless the form you sign limits the authority of your agent,
10 your agent may make all health-care decisions for you. This form
11 has a place for you to limit the authority of your agent. You
12 need not limit the authority of your agent if you wish to rely on
13 your agent for all health-care decisions that may have to be
14 made. If you choose not to limit the authority of your agent,
15 your agent will have the right to:
16 (a) Consent or refuse consent to any care, treatment,
17 service, or procedure to maintain, diagnose, or
18 otherwise affect a physical or mental condition;
19 (b) Select or discharge health-care providers and
20 institutions;
21 (c) Approve or disapprove diagnostic tests, surgical
22 procedures, programs of medication, and orders not to
23 resuscitate; and
Page 22 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (d) Direct the provision, withholding, or withdrawal of
2 artificial nutrition and hydration and all other forms
3 of health care.
4 Part 2 of this form lets you give specific instructions
5 about any aspect of your health care. Choices are provided for
6 you to express your wishes regarding the provision, withholding,
7 or withdrawal of treatment to keep you alive, including the
8 provision of artificial nutrition and hydration, as well as the
9 provision of pain relief medication. Space is provided for you
10 to add to the choices you have made or for you to write out any
11 additional wishes.
12 Part 4 of this form lets you designate a physician to have
13 primary responsibility for your health care.
14 After completing this form, sign and date the form at the
15 end and have the form witnessed by one of the two alternative
16 methods listed below. Give a copy of the signed and completed
17 form to your physician, to any other health-care providers you
18 may have, to any health-care institution at which you are
19 receiving care, and to any health-care agents you have named.
20 You should talk to the person you have named as agent to make
21 sure that he or she understands your wishes and is willing to
22 take the responsibility.
Page 23 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 You have the right to revoke this advance health-care
2 directive or replace this form at any time.
3 PART 1
4 DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
5 (1) DESIGNATION OF AGENT: I designate the following
6 individual as my agent to make health-care decisions for me:
7 ________________________________________________________
8 (name of individual you choose as agent)
9 ________________________________________________________
10 (address)(city) (state) (zip code)
11 ________________________________________________________
12 (home phone) (work phone)
13 OPTIONAL: If I revoke my agent's authority or if my agent is
14 not willing, able, or reasonably available to make a health-care
15 decision for me, I designate as my first alternate agent:
16 ________________________________________________________
17 (name of individual you choose as first alternate agent)
18 ________________________________________________________
19 (address) (city) (state) (zip code)
20 ________________________________________________________
21 (home phone) (work phone)
Page 24 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 OPTIONAL: If I revoke the authority of my agent and first
2 alternate agent or if neither is willing, able, or reasonably
3 available to make a health-care decision for me, I designate as
4 my second alternate agent:
5 ________________________________________________________
6 (name of individual you choose as second alternate agent)
7 ________________________________________________________
8 (address) (city) (state) (zip code)
9 ________________________________________________________
10 (home phone) (work phone)
11 (2) AGENT'S AUTHORITY: My agent is authorized to make
12 all health-care decisions for me, including decisions to
13 provide, withhold, or withdraw artificial nutrition and
14 hydration, and all other forms of health care to keep me
15 alive, except as I state here:
16 ____________________________________________________________
17 ____________________________________________________________
18 ____________________________________________________________
19 (Add additional sheets if needed.)
20 (3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's
21 authority becomes effective when my primary physician determines
22 that I am unable to make my own health-care decisions unless I
Page 25 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 mark the following box. If I mark this box [ ], my agent's
2 authority to make health-care decisions for me takes effect
3 immediately.
4 (4) AGENT'S OBLIGATION: My agent shall make health-care
5 decisions for me in accordance with this power of attorney for
6 health care, any instructions I give in Part 2 of this form, and
7 my other wishes to the extent known to my agent. To the extent
8 my wishes are unknown, my agent shall make health-care decisions
9 for me in accordance with what my agent determines to be in my
10 best interest. In determining my best interest, my agent shall
11 consider my personal values to the extent known to my agent.
12 (5) NOMINATION OF GUARDIAN: If a guardian of my person
13 needs to be appointed for me by a court, I nominate the agent
14 designated in this form. If that agent is not willing, able, or
15 reasonably available to act as guardian, I nominate the alternate
16 agents whom I have named, in the order designated.
17 PART 2
18 INSTRUCTIONS FOR HEALTH CARE
19 If you are satisfied to allow your agent to determine what
20 is best for you in making end-of-life decisions, you need not
21 fill out this part of the form. If you do fill out this part of
22 the form, you may strike any wording you do not want.
Page 26 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (6) END-OF-LIFE DECISIONS: I direct that my health-care
2 providers and others involved in my care provide, withhold, or
3 withdraw treatment in accordance with the choice I have marked
4 below: (Check only one box.)
5 [ ] (a) Choice Not To Prolong Life
6 I do not want my life to be prolonged if (i) I
7 have an incurable and irreversible condition that
8 will result in my death within a relatively short
9 time, (ii) I become unconscious and, to a
10 reasonable degree of medical certainty, I will not
11 regain consciousness, or (iii) the likely risks
12 and burdens of treatment would outweigh the
13 expected benefits, OR
14 [ ] (b) Choice To Prolong Life
15 I want my life to be prolonged as long as possible
16 within the limits of generally accepted health-
17 care standards.
18 (7) ARTIFICIAL NUTRITION AND HYDRATION: Artificial
19 nutrition and hydration must be provided, withheld or withdrawn
20 in accordance with the choice I have made in paragraph (6) unless
21 I mark the following box. If I mark this box [ ], artificial
Page 27 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 nutrition and hydration must be provided regardless of my
2 condition and regardless of the choice I have made in paragraph
3 (6).
4 (8) RELIEF FROM PAIN: If I mark this box [ ], I direct
5 that treatment to alleviate pain or discomfort should be provided
6 to me even if it hastens my death.
7 (9) OTHER WISHES: (If you do not agree with any of the
8 optional choices above and wish to write your own, or if you wish
9 to add to the instructions you have given above, you may do so
10 here.) I direct that:
11 ___________________________________________________________
12 ___________________________________________________________
13 (Add additional sheets if needed.)
14 PART 3
15 DONATION OF ORGANS AT DEATH
16 (OPTIONAL)
17 (10) Upon my death: (mark applicable box)
18 [ ] (a) I give any needed organs, tissues, or parts,
19 OR
20 [ ] (b) I give the following organs, tissues, or
21 parts only
22 _____________________________________________
Page 28 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 [ ] (c) My gift is for the following purposes (strike
2 any of the following you do not want)
3 (i) Transplant
4 (ii) Therapy
5 (iii) Research
6 (iv) Education
7 PART 4
8 PRIMARY PHYSICIAN
9 (OPTIONAL)
10 (11) I designate the following physician as my primary
11 physician:
12 ____________________________________________________________
13 (name of physician)
14 ____________________________________________________________
15 (address) (city) (state) (zip code)
16 ____________________________________________________________
17 (phone)
18 OPTIONAL: If the physician I have designated above is not
19 willing, able, or reasonably available to act as my primary
20 physician, I designate the following physician as my primary
21 physician:
Page 29 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 _________________________________________________________________
2 (name of physician)
3 _________________________________________________________________
4 (address) (city) (state) (zip code)
5 _________________________________________________________________
6 (phone)
7 (12) EFFECT OF COPY: A copy of this form has the same
8 effect as the original.
9 (13) SIGNATURES: Sign and date the form here:
10 ____________________________ ______________________________
11 (date) (sign your name)
12 ____________________________ ______________________________
13 (address) (print your name)
14 ____________________________
15 (city) (state)
16 (14) WITNESSES: This power of attorney will not be valid for
17 making health-care decisions unless it is either (a) signed by
18 two qualified adult witnesses who are personally known to you and
19 who are present when you sign or acknowledge your signature; or
20 (b) acknowledged before a notary public in the state.
Page 30 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 ALTERNATIVE NO. 1
2 Witness
3 I declare under penalty of false swearing pursuant to
4 section 710-1062, Hawaii Revised Statutes, that the principal is
5 personally known to me, that the principal signed or acknowledged
6 this power of attorney in my presence, that the principal appears
7 to be of sound mind and under no duress, fraud, or undue
8 influence, that I am not the person appointed as agent by this
9 document, and that I am not a health-care provider, nor an
10 employee of a health-care provider or facility. I am not related
11 to the principal by blood, marriage, or adoption, and to the best
12 of my knowledge, I am not entitled to any part of the estate of
13 the principal upon the death of the principal under a will now
14 existing or by operation of law.
15 ____________________________ ______________________________
16 (date) (signature of witness)
17 ____________________________ ______________________________
18 (address) (printed name of witness)
19 ____________________________
20 (city) (state)
21 Witness
Page 31 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 I declare under penalty of false swearing pursuant to
2 section 710-1062, Hawaii Revised Statutes, that the principal is
3 personally known to me, that the principal signed or acknowledged
4 this power of attorney in my presence, that the principal appears
5 to be of sound mind and under no duress, fraud, or undue
6 influence, that I am not the person appointed as agent by this
7 document, and that I am not a health-care provider, nor an
8 employee of a health-care provider or facility.
9 ____________________________ ______________________________
10 (date) (signature of witness)
11 ____________________________ ______________________________
12 (address) (printed name of witness)
13 ____________________________
14 (city) (state)
15 ALTERNATIVE NO. 2
16 State of Hawaii
17 County of ________________
18 On this _______ day of __________, in the year ____, before me,
19 _______________ (insert name of notary public) appeared
20 _______________, personally known to me (or proved to me on the
21 basis of satisfactory evidence) to be the person whose name is
22 subscribed to this instrument, and acknowledged that he or she
23 executed it.
Page 32 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 Notary Seal
2 _____________________________
3 (Signature of Notary Public)"
4 SECTION 2. Section 551D-2.5, Hawaii Revised Statutes, is
5 amended to read as follows:
6 "[[]§551D-2.5[]] Durable power of attorney for health care
7 decisions. [(a)] A competent person who has attained the age of
8 majority may execute a durable power of attorney authorizing an
9 agent to make any lawful health care decisions [that could have
10 been made by the principal at the time of election.] pursuant to
11 chapter .
12 [(b) The durable power of attorney made pursuant to this
13 section:
14 (1) Shall be in writing;
15 (2) Shall be signed by the principal, or by another person
16 in the principal's presence and at the principal's
17 expressed direction;
18 (3) Shall be dated;
19 (4) Shall be signed in the presence of two or more
20 witnesses who:
21 (A) Are at least eighteen years of age;
Page 33 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 (B) Are not related to the principal by blood,
2 marriage, or adoption; and
3 (C) Are not, at the time that the durable power of
4 attorney is executed, attending physicians,
5 employees of an attending physician, or employees
6 of a health care facility in which the principal
7 is a patient; and
8 (5) Shall have all signatures notarized at the same time.
9 (c) A durable power of attorney for health care decisions
10 shall be presumed not to grant authority to decide that the
11 principal's life should not be prolonged through surgery,
12 resuscitation, life sustaining medicine or procedures or the
13 provision of nutrition or hydration, unless such authority is
14 explicitly stated.
15 (d) A durable power of attorney for health care decisions
16 shall only be effective during the period of incapacity of the
17 principal as determined by a licensed physician.
18 (e) No person shall serve as both the treating physician
19 and attorney-in-fact for any principal for matters relating to
20 health care decisions.
21 (f) A durable power of attorney for health care decisions
22 executed prior to June 12, 1992, that substantially complies with
Page 34 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 the requirements of this chapter shall be considered valid
2 provided that the powers relating to the health care decisions
3 granted in the power of attorney have not been previously revoked
4 by the principal or otherwise terminated.]"
5 SECTION 3. Section 551D-2.6, Hawaii Revised Statutes, is
6 repealed.
7 ["[§551D-2.6] Durable power of attorney sample form. The
8 following sample form may be copied and used by filling in the
9 blanks or may be changed to add more individualized instructions;
10 or an entirely different format may be used to provide health
11 care instructions.
12 DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
13 A. Statement of Principal
14 Declaration made this ________ day of ___________ (month,
15 year). I, _________________, being of sound mind, and
16 understanding that I have the right to request that my life be
17 prolonged to the greatest extent possible, willfully and
18 voluntarily make known my desire that my attorney-in-fact
19 ("agent") shall be authorized as set forth below and do hereby
20 declare:
21 My instructions shall prevail even if they create a conflict
22 with the desires of my relatives, hospital policies, or the
23 principles of those providing my care.
Page 35 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 CHECKLIST
2 I have considered the extent of the authority I want my
3 agent to have with respect to health care decisions if I should
4 develop a terminal condition or a permanent loss of the ability
5 to communicate concerning medical treatment decisions with no
6 reasonable chance of regaining this ability. I want my agent to
7 request care, including medicine and procedures, for the purpose
8 of providing comfort and pain relief. I have also considered
9 whether my agent should have the authority to decide whether or
10 not my life should be prolonged, and have selected one of the
11 following provisions by putting a mark in the space provided:
12 ( ) My agent is authorized to decide whether my life should
13 be prolonged through surgery, resuscitation, life
14 sustaining medicine or procedures, and tube or other
15 artificial feeding or provisions of fluids by a tube.
16 ( ) My agent is authorized to decide whether my life should
17 be prolonged through tube or other artificial feeding
18 or provisions of fluids by a tube.
19 If neither provision is selected, it shall be presumed that
20 my agent shall have only the power to request care, including
21 medicine and procedures, for the purpose of providing comfort and
22 pain relief.
Page 36 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 This durable power of attorney shall control in all
2 circumstances. I understand that my physician may not act as my
3 agent under this durable power of attorney.
4 I understand the full meaning of this durable power of
5 attorney and I am emotionally and mentally competent to make this
6 declaration.
7 Signed _____________________
8 Address ____________________
9 B. Statement of Witnesses
10 I am at least eighteen years of age and -not related to the
11 principal by blood, marriage, or adoption; and
12 -not currently the attending physician, an employee of the
13 attending physician, or an employee of the health care
14 facility in which the principal is a patient.
15 The principal is personally known to me and I believe the
16 principal to be of sound mind.
17 Witness ______________________
18 Address ______________________
19 Witness ______________________
20 Address ______________________
21 C. Statement of Agent
Page 37 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 I am at least eighteen years of age, I accept the
2 appointment under this durable power of attorney as the attorney-
3 in-fact ("agent") of the principal, and I am not the physician of
4 the principal. The principal is personally known to me and I
5 believe the principal to be of sound mind.
6 Agent ______________________
7 Address _____________________
8 D. Notarization.
9 Subscribed, sworn to and acknowledged before me by
10 _________________, the principal, and subscribed and sworn to
11 before me by ______________________ and __________, witnesses,
12 this day of ____________, 19 ____.
13 (SEAL)
14 Signed _____________________________
15 _____________________________
16 (Official capacity of officer)"]
17 SECTION 4. Chapter 327D, Hawaii Revised Statutes, is
18 repealed.
19 SECTION 5. If any provision of this chapter or its
20 application to any person or circumstance is held invalid, the
21 invalidity does not affect other provisions or applications of
22 this chapter which can be given effect without the invalid
Page 38 171
H.B. NO. H.D. 2
S.D. 2
C.D. 1
1 provision or application, and to this end the provisions of this
2 chapter are severable.
3 SECTION 6. Statutory material to be repealed is bracketed.
4 New statutory material is underscored.
5 SECTION 7. This Act shall take effect upon its approval.