1140
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   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      "Capacity" means an individual's ability to understand the
 
16 significant benefits, risks, and alternatives to proposed health
 
17 care and to make and communicate a health-care decision.
 

 
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 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.
 
 7      "Health-care decision" means a decision made by an
 
 8 individual or the individual's agent, guardian, or surrogate,
 
 9 regarding the individual's health care, including:
 
10      (1)  Selection and discharge of health-care providers and
 
11           institutions;
 
12      (2)  Approval or disapproval of diagnostic tests, surgical
 
13           procedures, programs of medication, and orders not to
 
14           resuscitate; and
 
15      (3)  Directions to provide, withhold, or withdraw artificial
 
16           nutrition and hydration, and all other forms of health
 
17           care.
 
18      "Health-care institution" means an institution, facility, or
 
19 agency licensed, certified, or otherwise authorized or permitted
 
20 by law to provide health care in the ordinary course of business.
 
21      "Health-care provider" means an individual licensed,
 
22 certified, or otherwise authorized or permitted by law to provide
 

 
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 1 health care in the ordinary course of business or practice of a
 
 2 profession.
 
 3      "Individual instruction" means an individual's direction
 
 4 concerning a health-care decision for the individual.
 
 5      "Person" means an individual, corporation, business trust,
 
 6 estate, trust, partnership, association, joint venture,
 
 7 government, governmental subdivision, agency, or instrumentality,
 
 8 or any other legal or commercial entity.
 
 9      "Physician" means an individual authorized to practice
 
10 medicine or osteopathy under chapter 453 or chapter 460.
 
11      "Power of attorney for health care" means the designation of
 
12 an agent to make health-care decisions for the individual
 
13 granting the power.
 
14      "Primary physician" means a physician designated by an
 
15 individual or the individual's agent, guardian, or surrogate, to
 
16 have primary responsibility for the individual's health care or,
 
17 in the absence of a designation or if the designated physician is
 
18 not reasonably available, a physician who undertakes the
 
19 responsibility.
 
20      "Reasonably available" means readily able to be contacted
 
21 without undue effort and willing and able to act in a timely
 
22 manner considering the urgency of the patient's health-care
 
23 needs.
 

 
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 1      "State" means a state of the United States, the District of
 
 2 Columbia, the Commonwealth of Puerto Rico, or a territory or
 
 3 insular possession subject to the jurisdiction of the United
 
 4 States.
 
 5      "Supervising health-care provider" means the primary
 
 6 physician or, if there is no primary physician or the primary
 
 7 physician is not reasonably available, the health-care provider
 
 8 who has undertaken primary responsibility for an individual's
 
 9 health care.
 
10      "Surrogate" means an individual, other than a patient's
 
11 agent or guardian, authorized under this chapter to make a
 
12 health-care decision for the patient.
 
13          -3  Advance health-care directives.(a)  An adult or
 
14 emancipated minor may give an individual instruction. The
 
15 instruction may be oral or written.  The instruction may be
 
16 limited to take effect only if a specified condition arises.
 
17      (b)  An adult or emancipated minor may execute a power of
 
18 attorney for health care, which may authorize the agent to make
 
19 any health-care decision the principal could have made while
 
20 having capacity.  The power remains in effect notwithstanding the
 
21 principal's later incapacity and may include individual
 
22 instructions.  Unless related to the principal by blood,
 
23 marriage, or adoption, an agent may not be an owner, operator, or
 

 
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 1 employee of health-care institution at which the principal is
 
 2 receiving care.  The power must be in writing, contain the date
 
 3 of its execution, be signed by the principal, and be witnessed by
 
 4 one of the following methods:
 
 5      (1)  Be signed by at least two individuals each of whom
 
 6           witnessed either the signing of the instrument by the
 
 7           principal or the principal's acknowledgment of the
 
 8           signature or of the instrument, each witness making the
 
 9           following declaration in substance:
 
10           I declare under penalty of false swearing, pursuant to
 
11           section 710-1062, that the principal is personally
 
12           known to me, that the principal signed or acknowledged
 
13           this power of attorney in my presence, that the
 
14           principal appears to be of sound mind and under no
 
15           duress, fraud or undue influence, that I am not the
 
16           person appointed as agent by this document, and that I
 
17           am not a health-care provider, nor an employee of a
 
18           health-care provider or facility. In addition, the
 
19           declaration of at least one of the witnesses must
 
20           include the following:
 
21           I am not related to the principal by blood, marriage or
 
22           adoption, and to the best of my knowledge, I am not
 
23           entitled to any part of the estate of the principal
 

 
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 1           upon the death of the principal under a will now
 
 2           existing or by operation of law.
 
 3      (2)  Be acknowledged before a notary public at any place
 
 4           within this state, the notary public certifying to the
 
 5           substance of the following:
 
 6           State of Hawaii
 
 7           County of _________________
 
 8           On this _______ day of __________, in the year ____,
 
 9           before me, _______________, (insert name of notary
 
10           public) appeared _______________, personally known to
 
11           me (or proved to me on the basis of satisfactory
 
12           evidence) to be the person whose name is subscribed to
 
13           this instrument, and acknowledged that he or she
 
14           executed it.  I declare under the penalty of false
 
15           swearing that the person whose name is subscribed to
 
16           this instrument appears to be of sound mind and under
 
17           no duress, fraud or undue influence.
 
18           Notary Seal
 
19           _____________________________
 
20           (Signature of Notary Public)
 
21           My Commission Expires:
 
22      (c)  A witness for a power of attorney for health care shall
 
23 not be:
 

 
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 1      (1)  A health-care provider;
 
 2      (2)  An employee of a health-care provider or facility;
 
 3          or
 
 4      (3)  The agent.
 
 5      (d)  At least one of the individuals used as a witness for a
 
 6 power of attorney for health care shall be someone who is
 
 7 neither:
 
 8      (1)  A relative of the principal by blood, marriage, or
 
 9           adoption; nor
 
10      (2)  An individual who would be entitled to any portion of
 
11           the estate of the principal upon his or her death under
 
12           any will or codicil thereto of the principal existing
 
13           at the time of execution of the power of attorney for
 
14           health care or by operation of law then existing.
 
15      (e)  Unless otherwise specified in a power of attorney for
 
16 health care, the authority of an agent becomes effective only
 
17 upon a determination that the principal lacks capacity, and
 
18 ceases to be effective upon a determination that the principal
 
19 has recovered capacity.
 
20      (f)  Unless otherwise specified in a written advance health-
 
21 care directive, a determination that an individual lacks or has
 
22 recovered capacity, or that another condition exists that affects
 

 
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 1 an individual instruction or the authority of an agent, must be
 
 2 made by the primary physician.
 
 3      (g)  An agent shall make a health-care decision in
 
 4 accordance with the principal's individual instructions, if any,
 
 5 and other wishes to the extent known to the agent.  Otherwise,
 
 6 the agent shall make the decision in accordance with the agent's
 
 7 determination of the principal's best interest.  In determining
 
 8 the principal's best interest, the agent shall consider the
 
 9 principal's personal values to the extent known to the agent.
 
10      (h)  A health-care decision made by an agent for a principal
 
11 is effective without judicial approval.
 
12      (i)  A written advance health-care directive may include the
 
13 individual's nomination of a guardian of the person.
 
14      (j)  An advance health-care directive is valid for purposes
 
15 of this chapter if it complies with this chapter, regardless of
 
16 when or where executed or communicated.
 
17          -4  Revocation of advance health-care directive.(a)
 
18 An individual may revoke the designation of an agent only by a
 
19 signed writing or by personally informing the supervising health-
 
20 care provider.
 
21      (b)  An individual may revoke all or part of an advance
 
22 health-care directive, other than the designation of an agent, at
 
23 any time and in any manner that communicates an intent to revoke.
 

 
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 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  Optional form.  The following form may, but need
 
14 not, be used to create an advance health-care directive.  The
 
15 other sections of this chapter govern the effect of this or any
 
16 other writing used to create an advance health-care directive.
 
17 An individual may complete or modify all or any part of the
 
18 following form:
 
19                   ADVANCE HEALTH-CARE DIRECTIVE
 
20                            Explanation
 
21      You have the right to give instructions about your own
 
22 health care.  You also have the right to name someone else to
 
23 make health-care decisions for you.  This form lets you do either
 

 
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 1 or both of these things.  It also lets you express your wishes
 
 2 regarding the designation of your primary physician.  If you use
 
 3 this form, you may complete or modify all or any part of it.  You
 
 4 are free to use a different form.
 
 5      Part 1 of this form is a power of attorney for health care.
 
 6 Part 1 lets you name another individual as agent to make health-
 
 7 care decisions for you if you become incapable of making your own
 
 8 decisions or if you want someone else to make those decisions for
 
 9 you now even though you are still capable.  You may name an
 
10 alternate agent to act for you if your first choice is not
 
11 willing, able, or reasonably available to make decisions for you.
 
12 Unless related to you, your agent may not be an owner, operator,
 
13 or employee of a residential long-term health-care institution at
 
14 which you are receiving care.
 
15      Unless the form you sign limits the authority of your agent,
 
16 your agent may make all health-care decisions for you.  This form
 
17 has a place for you to limit the authority of your agent.  You
 
18 need not limit the authority of your agent if you wish to rely on
 
19 your agent for all health-care decisions that may have to be
 
20 made.  If you choose not to limit the authority of your agent,
 
21 your agent will have the right to:
 
22      (a)  Consent or refuse consent to any care, treatment,
 
23           service, or procedure to maintain, diagnose, or
 

 
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 1           otherwise affect a physical or mental condition;
 
 2      (b)  Select or discharge health-care providers and
 
 3           institutions;
 
 4      (c)  Approve or disapprove diagnostic tests, surgical
 
 5           procedures, programs of medication, and orders not to
 
 6           resuscitate; and
 
 7      (d)  Direct the provision, withholding, or withdrawal of
 
 8           artificial nutrition and hydration and all other forms
 
 9           of health care.
 
10      Part 2 of this form lets you give specific instructions
 
11 about any aspect of your health care.  Choices are provided for
 
12 you to express your wishes regarding the provision, withholding,
 
13 or withdrawal of treatment to keep you alive, including the
 
14 provision of artificial nutrition and hydration, as well as the
 
15 provision of pain relief.  Space is provided for you to add to
 
16 the choices you have made or for you to write out any additional
 
17 wishes.
 
18      Part 3 of this form lets you designate a physician to have
 
19 primary responsibility for your health care.
 
20      After completing this form, sign and date the form at the
 
21 end and have the form witnessed by one of the two alternative
 
22 methods listed below.  Give a copy of the signed and completed
 
23 form to your physician, to any other health-care providers you
 

 
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 1 may have, to any health-care institution at which you are
 
 2 receiving care, and to any health-care agents you have named.
 
 3 You should talk to the person you have named as agent to make
 
 4 sure that he or she understands your wishes and is willing to
 
 5 take the responsibility.
 
 6      You have the right to revoke this advance health-care
 
 7 directive or replace this form at any time.
 
 8                              PART 1
 
 9        DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
 
10 DESIGNATION OF AGENT: I designate the following individual as my
 
11 agent to make health-care decisions for me:
 
12 ____________________________________________________________
 
13 (name of individual you choose as agent)
 
14 ___________________________________________________________
 
15 (address)(city) (state) (zip code)
 
16 ___________________________________________________________
 
17 (home phone) (work phone)
 
18      OPTIONAL: If I revoke my agent's authority or if my agent is
 
19 not willing, able, or reasonably available to make a health-care
 
20 decision for me, I designate as my first alternate agent:
 
21 ___________________________________________________________
 
22 (name of individual you choose as first alternate agent)
 

 
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 1 ___________________________________________________________
 
 2 (address) (city) (state) (zip code)
 
 3 ___________________________________________________________
 
 4 (home phone) (work phone)
 
 5      OPTIONAL: If I revoke the authority of my agent and first
 
 6 alternate agent or if neither is willing, able, or reasonably
 
 7 available to make a health-care decision for me, I designate as
 
 8 my second alternate agent:
 
 9 ___________________________________________________________
 
10 (name of individual you choose as second alternate agent)
 
11 ___________________________________________________________
 
12 (address) (city) (state) (zip code)
 
13 ___________________________________________________________
 
14           (home phone) (work phone)
 
15      (2)  AGENT'S AUTHORITY: My agent is authorized to make all
 
16 health-care decisions for me, including decisions to provide,
 
17 withhold, or withdraw artificial nutrition and hydration, and all
 
18 other forms of health care to keep me alive, except as I state
 
19 here:
 
20 ___________________________________________________________
 
21 ___________________________________________________________
 
22 ___________________________________________________________
 
23                (Add additional sheets if needed.)
 

 
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 1      (3)  WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's
 
 2 authority becomes effective when my primary physician determines
 
 3 that I am unable to make my own health-care decisions unless I
 
 4 mark the following box.  If I mark this box [ ], my agent's
 
 5 authority to make health-care decisions for me takes effect
 
 6 immediately.
 
 7      (4)  AGENT'S OBLIGATION: My agent shall make health-care
 
 8 decisions for me in accordance with this power of attorney for
 
 9 health care, any instructions I give in Part 2 of this form, and
 
10 my other wishes to the extent known to my agent.  To the extent
 
11 my wishes are unknown, my agent shall make health-care decisions
 
12 for me in accordance with what my agent determines to be in my
 
13 best interest.  In determining my best interest, my agent shall
 
14 consider my personal values to the extent known to my agent.
 
15      (5)  NOMINATION OF GUARDIAN: If a guardian of my person
 
16 needs to be appointed for me by a court, I nominate the agent
 
17 designated in this form.  If that agent is not willing, able, or
 
18 reasonably available to act as guardian, I nominate the alternate
 
19 agents whom I have named, in the order designated.
 
20                              PART 2
 
21                   INSTRUCTIONS FOR HEALTH CARE
 
22      If you are satisfied to allow your agent to determine what
 
23 is best for you in making end-of-life decisions, you need not
 

 
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 1 fill out this part of the form.  If you do fill out this part of
 
 2 the form, you may strike any wording you do not want.
 
 3      (6) END-OF-LIFE DECISIONS: I direct that my health-care
 
 4 providers and others involved in my care provide, withhold, or
 
 5 withdraw treatment in accordance with the choice I have marked
 
 6 below:
 
 7 [   ] (a) Choice Not To Prolong Life
 
 8      I do not want my life to be prolonged if (i) I have an
 
 9 incurable and irreversible condition that will result in my death
 
10 within a relatively short time, (ii) I become unconscious and, to
 
11 a reasonable degree of medical certainty, I will not regain
 
12 consciousness, or (iii) the likely risks and burdens of treatment
 
13 would outweigh the expected benefits, OR
 
14      [   ] (b) Choice To Prolong Life
 
15      I want my life to be prolonged as long as possible within
 
16 the limits of generally accepted health-care standards.
 
17      (7)  ARTIFICIAL NUTRITION AND HYDRATION:  Artificial
 
18 nutrition and hydration must be provided, withheld or withdrawn
 
19 in accordance with the choice I have made in paragraph (6) unless
 
20 I mark the following box.  If I mark this box [   ], artificial
 
21 nutrition and hydration must be provided regardless of my
 
22 condition and regardless of the choice I have made in paragraph
 
23 (6).
 

 
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 1      (8)  RELIEF FROM PAIN: Except as I state in the following
 
 2 space, I direct that treatment for alleviation of pain or
 
 3 discomfort be provided at all times, even if it hastens my death:
 
 4 _________________________________________________________________
 
 5 _________________________________________________________________
 
 6      (9)  OTHER WISHES: (If you do not agree with any of the
 
 7 optional choices above and wish to write your own, or if you wish
 
 8 to add to the instructions you have given above, you may do so
 
 9 here.)  I direct that:
 
10 ____________________________________________________________
 
11 ____________________________________________________________
 
12                (Add additional sheets if needed.)
 
13                              PART 3
 
14                    DONATION OF ORGANS AT DEATH
 
15                            (OPTIONAL)
 
16      (10) Upon my death (mark applicable box)
 
17      [ ]  (a)  I give any needed organs, tissues, or parts,
 
18           OR
 
19      [ ]  (b)  I give the following organs, tissues, or parts
 
20           only
 
21           __________________________________________________
 
22           (c)  My gift is for the following purposes (strike any
 
23           of the following you do not want)
 

 
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 1           (i)   Transplant
 
 2           (ii)  Therapy
 
 3           (iii) Research
 
 4           (iv)  Education
 
 5                              PART 4
 
 6                         PRIMARY PHYSICIAN
 
 7                            (OPTIONAL)
 
 8      (11) I designate the following physician as my primary
 
 9 physician:
 
10 ____________________________________________________________
 
11 (name of physician)
 
12 ___________________________________________________________
 
13 (address) (city) (state) (zip code)
 
14 __________________________________________________________
 
15 (phone)
 
16      OPTIONAL:  If the physician I have designated above is not
 
17 willing, able, or reasonably available to act as my primary
 
18 physician, I designate the following physician as my primary
 
19 physician:
 
20 ___________________________________________________________
 
21 (name of physician)
 
22 ___________________________________________________________
 
23 (address) (city) (state) (zip code)
 

 
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 1 ___________________________________________________________
 
 2 (phone)
 
 3 ___________________________________________________________
 
 4      (12) EFFECT OF COPY:  A copy of this form has the same
 
 5 effect as the original.
 
 6      (13) SIGNATURES:  Sign and date the form here:
 
 7 _____________________________ _____________________________
 
 8 (date)                        (sign your name)
 
 9 _____________________________ _____________________________
 
10 (address)                     (print your name)
 
11 _____________________________
 
12 (city) (state)
 
13      (14) WITNESSES: This power of attorney will not be valid for
 
14 making health-care decisions unless it is either (a) signed by
 
15 two qualified adult witnesses who are personally known to you and
 
16 who are present when you sign or acknowledge your signature; or
 
17 (b) acknowledged before a notary public in the state.
 
18                         ALTERNATIVE NO. 1
 
19      Witness
 
20      I declare under penalty of false swearing pursuant to
 
21 section 710-1062, Hawaii Revised Statutes, that the principal is
 
22 personally known to me, that the principal signed or acknowledged
 
23 this power of attorney in my presence, that the principal appears
 

 
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 1 to be of sound mind and under no duress, fraud or undue
 
 2 influence, that I am not the person appointed as agent by this
 
 3 document, and that I am not a health-care provider, nor an
 
 4 employee of a health-care provider or facility.  I am not related
 
 5 to the principal by blood, marriage, or adoption, and to the best
 
 6 of my knowledge, I am not entitled to any part of the estate of
 
 7 the principal upon the death of the principal under a will now
 
 8 existing or by operation of law.
 
 9 _____________________________ _____________________________
 
10 (date)                        (signature of witness)
 
11 _____________________________ _____________________________
 
12 (address)                     (printed name of witness)
 
13 _____________________________ _____________________________
 
14 (city)                        (state)
 
15      Witness
 
16      I declare under penalty of false swearing pursuant to
 
17 section 710-1062, Hawaii Revised Statutes, that the principal is
 
18 personally known to me, that the principal signed or acknowledged
 
19 this power of attorney in my presence, that the principal appears
 
20 to be of sound mind and under no duress, fraud or undue
 
21 influence, that I am not the person appointed as agent by this
 
22 document, and that I am not a health-care provider, nor an
 
23 employee of a health-care provider or facility.
 

 
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 1 _____________________________ _____________________________
 
 2 (date)                        (signature of witness)
 
 3 _____________________________ _____________________________
 
 4 (address)                     (printed name of witness)
 
 5 _____________________________ _____________________________
 
 6 (city)                        (state)
 
 7                         ALTERNATIVE NO. 2
 
 8 State of Hawaii
 
 9 County of ________________
 
10 On this _______ day of __________, in the year ____, before me,
 
11 _______________ (insert name of notary public) appeared
 
12 _______________, personally known to me (or proved to me on the
 
13 basis of satisfactory evidence) to be the person whose name is
 
14 subscribed to this instrument, and acknowledged that he or she
 
15 executed it.
 
16 Notary Seal
 
17 ____________________________
 
18 (Signature of Notary Public)
 
19          -6  Decisions by a surrogate. (a)  A surrogate may make
 
20 a health-care decision for a patient who is an adult or
 
21 emancipated minor if the patient has been determined by the
 
22 primary physician to lack capacity and no agent or guardian has
 
23 been appointed or the agent or guardian is not reasonably
 

 
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 1 available.
 
 2      (b)  An adult or emancipated minor may designate any
 
 3 individual to act as surrogate by personally informing the
 
 4 supervising health-care provider. In the absence of a
 
 5 designation, or if the designee is not reasonably available, any
 
 6 member of the following classes of the patient's family who is
 
 7 reasonably available, in descending order of priority, may act as
 
 8 surrogate:
 
 9      (1)  The spouse, unless legally separated;
 
10      (2)  An adult child;
 
11      (3)  A parent; or
 
12      (4)  An adult brother or sister.
 
13      (c)  If none of the individuals eligible to act as surrogate
 
14 under subsection (b) is reasonably available, an adult who has
 
15 exhibited special care and concern for the patient, who is
 
16 familiar with the patient's personal values, and who is
 
17 reasonably available may act as surrogate.
 
18      (d)  A surrogate shall communicate his or her assumption of
 
19 authority as promptly as practicable to the members of the
 
20 patient's family specified in subsection (b) who can be readily
 
21 contacted.
 
22      (e)  If more than one member of a class assumes authority to
 
23 act as surrogate, and they do not agree on a health-care decision
 

 
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 1 and the supervising health-care provider is so informed, the
 
 2 supervising health-care provider shall comply with the decision
 
 3 of a majority of the members of that class who have communicated
 
 4 their views to the provider.  If the class is evenly divided
 
 5 concerning the health-care decision and the supervising health-
 
 6 care provider is so informed, that class and all individuals
 
 7 having lower priority are disqualified from making the decision.
 
 8      (f)  A surrogate shall make a health-care decision in
 
 9 accordance with the patient's individual instructions, if any,
 
10 and other wishes to the extent known to the surrogate.
 
11 Otherwise, the surrogate shall make the decision in accordance
 
12 with the surrogate's determination of the patient's best
 
13 interest.  In determining the patient's best interest, the
 
14 surrogate shall consider the patient's personal values to the
 
15 extent known to the surrogate.
 
16      (g)  A health-care decision made by a surrogate for a
 
17 patient is effective without judicial approval.
 
18      (h)  An individual at any time may disqualify another,
 
19 including a member of the individual's family, from acting as the
 
20 individual's surrogate by a signed writing or by personally
 
21 informing the supervising health-care provider of the
 
22 disqualification.
 
23      (i)  Unless related to the patient by blood, marriage, or
 

 
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 1 adoption, a surrogate may not be an owner, operator, or employee
 
 2 of a residential long-term health-care institution at which the
 
 3 patient is receiving care.
 
 4      (j)  A supervising health-care provider may require an
 
 5 individual claiming the right to act as surrogate for a patient
 
 6 to provide a written declaration under penalty of false swearing
 
 7 stating facts and circumstances reasonably sufficient to
 
 8 establish the claimed authority.
 
 9          -7  Decisions by guardian.(a)  A guardian shall
 
10 comply with the ward's individual instructions and may not revoke
 
11 the ward's advance health-care directive unless the appointing
 
12 court expressly so authorizes.
 
13      (b)  Absent a court order to the contrary, a health-care
 
14 decision of an agent takes precedence over that of a guardian.
 
15      (c)  A health-care decision made by a guardian for the ward
 
16 is effective without judicial approval.
 
17          -8  Obligations of health-care provider.(a)  Before
 
18 implementing a health-care decision made for a patient, a
 
19 supervising health-care provider, if possible, shall promptly
 
20 communicate to the patient the decision made and the identity of
 
21 the person making the decision.
 
22      (b)  A supervising health-care provider who knows of the
 
23 existence of an advance health-care directive, a revocation of an
 

 
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 1 advance health-care directive, or a designation or
 
 2 disqualification of a surrogate, shall promptly record its
 
 3 existence in the patient's health-care record and, if it is in
 
 4 writing, shall request a copy and if one is furnished shall
 
 5 arrange for its maintenance in the health-care record.
 
 6      (c)  A primary physician who makes or is informed of a
 
 7 determination that a patient lacks or has recovered capacity, or
 
 8 that another condition exists which affects an individual
 
 9 instruction or the authority of an agent, guardian, or surrogate,
 
10 shall promptly record the determination in the patient's health-
 
11 care record and communicate the determination to the patient, if
 
12 possible, and to any person then authorized to make health-care
 
13 decisions for the patient.
 
14      (d)  Except as provided in subsections (e) and (f), a
 
15 health-care provider or institution providing care to a patient
 
16 shall:
 
17      (1)  Comply with an individual instruction of the patient
 
18           and with a reasonable interpretation of that
 
19           instruction made by a person then authorized to make
 
20           health-care decisions for the patient; and
 
21      (2)  Comply with a health-care decision for the patient made
 
22           by a person then authorized to make health-care
 
23           decisions for the patient to the same extent as if the
 

 
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 1           decision had been made by the patient while having
 
 2           capacity.
 
 3      (e)  A health-care provider may decline to comply with an
 
 4 individual instruction or health-care decision for reasons of
 
 5 conscience.  A health-care institution may decline to comply with
 
 6 an individual instruction or health-care decision if the
 
 7 instruction or decision is contrary to a policy of the
 
 8 institution which is expressly based on reasons of conscience and
 
 9 if the policy was timely communicated to the patient or to a
 
10 person then authorized to make health-care decisions for the
 
11 patient.
 
12      (f)  A health-care provider or institution may decline to
 
13 comply with an individual instruction or health-care decision
 
14 that requires medically ineffective health care or health care
 
15 contrary to generally accepted health-care standards applicable
 
16 to the health-care provider or institution.
 
17      (g)  A health-care provider or institution that declines to
 
18 comply with an individual instruction or health-care decision
 
19 shall:
 
20      (1)  Promptly so inform the patient, if possible, and any
 
21           person then authorized to make health-care decisions
 
22           for the patient;
 
23      (2)  Provide continuing care to the patient until a transfer
 

 
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 1           can be effected; and
 
 2      (3)  Unless the patient or person then authorized to make
 
 3           health-care decisions for the patient refuses
 
 4           assistance, immediately make all reasonable efforts to
 
 5           assist in the transfer of the patient to another
 
 6           health-care provider or institution that is willing to
 
 7           comply with the instruction or decision.
 
 8      (h)  A health-care provider or institution may not require
 
 9 or prohibit the execution or revocation of advance health-care
 
10 directive as a condition for providing health care.
 
11          -9  Health-care information.  Unless otherwise
 
12 specified in an advance health-care directive, a person then
 
13 authorized to make health-care decisions for a patient has the
 
14 same rights as the patient to request, receive, examine, copy,
 
15 and consent to the disclosure of medical or any other health-care
 
16 information.
 
17          -10  Immunities.(a)  A health-care provider or
 
18 institution acting in good faith and in accordance with generally
 
19 accepted health-care standards applicable to the health-care
 
20 provider or institution is not subject to civil or criminal
 
21 liability or to discipline for unprofessional conduct for:
 
22      (1)  Complying with a health-care decision of a person
 
23           apparently having authority to make a health-care
 

 
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 1           decision for a patient, including a decision to
 
 2           withhold or withdraw health care;
 
 3      (2)  Declining to comply with a health-care decision of a
 
 4           person based on a belief that the person then lacked
 
 5           authority; or
 
 6      (3)  Complying with an advance health-care directive and
 
 7           assuming that the directive was valid when made and has
 
 8           not been revoked or terminated.
 
 9      (b)  An individual acting as agent or surrogate under this
 
10 chapter is not subject to civil or criminal liability or to
 
11 discipline for unprofessional conduct for health-care decisions
 
12 made in good faith.
 
13          -11  Statutory damages.(a)  A health-care provider or
 
14 institution that intentionally violates this chapter is subject
 
15 to liability to the aggrieved individual for damages of $500 or
 
16 actual damages resulting from the violation, whichever is
 
17 greater, plus reasonable attorney's fees.
 
18      (b)  A person who intentionally falsifies, forges, conceals,
 
19 defaces, or obliterates an individual's advance health-care
 
20 directive or a revocation of an advance health-care directive
 
21 without the individual's consent, or who coerces or fraudulently
 
22 induces an individual to give, revoke, or not to give an advance
 
23 health-care directive, is subject to liability to that individual
 

 
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 1 for damages of $2,500 or actual damages resulting from the
 
 2 action, whichever is greater, plus reasonable attorney's fees.
 
 3          -12  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          -13  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          -14  Effect of this chapter.(a)  This chapter does
 
14 not create a presumption concerning the intention of an
 
15 individual who has not made or who has revoked an advance health-
 
16 care directive.
 
17      (b)  Death resulting from the withholding or withdrawal of
 
18 health care in accordance with this chapter does 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.
 
23      (c)  This chapter does not authorize mercy killing, assisted
 

 
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 1 suicide, euthanasia, or the provision, withholding, or withdrawal
 
 2 of health care, to the extent prohibited by other statutes of
 
 3 this State.
 
 4      (d)  This chapter does not authorize or require a health-
 
 5 care provider or institution to provide health care contrary to
 
 6 generally accepted health-care standards applicable to the
 
 7 health-care provider or institution.
 
 8      (e)  This chapter does not authorize an agent or surrogate
 
 9 to consent to the admission of an individual to a psychiatric
 
10 facility as defined in chapter 334, unless the individual's
 
11 written advance health-care directive expressly so provides.
 
12      (f)  This chapter does not affect other statutes of this
 
13 State governing treatment for mental illness of an individual
 
14 involuntarily committed to a psychiatric facility.
 
15      (g)  This chapter does not apply to a patient diagnosed as
 
16 pregnant by the attending physician.
 
17          -15  Judicial relief.  On petition of a patient, the
 
18 patient's agent, guardian, or surrogate, a health-care provider
 
19 or institution involved with the patient's care, or an individual
 
20 described in section   -6(b) or (c), any court of competent
 
21 jurisdiction may enjoin or direct a health-care decision or order
 
22 other equitable relief.  A proceeding under this section shall be
 
23 governed by part 3 of article V of chapter 560."
 

 
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 1      SECTION 2.  Section 551D-2.5, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "[[]551D-2.5[]]  Durable power of attorney for health care
 
 4 decisions.(a)  A competent person who has attained the age of
 
 5 majority may execute a durable power of attorney authorizing an
 
 6 agent to make any lawful health care decisions [that could have
 
 7 been made by the principal at the time of election.] pursuant to
 
 8 the Uniform Health-Care Decisions Act (Modified), chapter  .
 
 9      [(b)  The durable power of attorney made pursuant to this
 
10 section:
 
11      (1)  Shall be in writing;
 
12      (2)  Shall be signed by the principal, or by another person
 
13           in the principal's presence and at the principal's
 
14           expressed direction;
 
15      (3)  Shall be dated;
 
16      (4)  Shall be signed in the presence of two or more
 
17           witnesses who:
 
18           (A)  Are at least eighteen years of age;
 
19           (B)  Are not related to the principal by blood,
 
20                marriage, or adoption; and
 
21           (C)  Are not, at the time that the durable power of
 
22                attorney is executed, attending physicians,
 
23                employees of an attending physician, or employees
 

 
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 1                of a health care facility in which the principal
 
 2                is a patient; and
 
 3      (5)  Shall have all signatures notarized at the same time.
 
 4      (c)  A durable power of attorney for health care decisions
 
 5 shall be presumed not to grant authority to decide that the
 
 6 principal's life should not be prolonged through surgery,
 
 7 resuscitation, life sustaining medicine or procedures or the
 
 8 provision of nutrition or hydration, unless such authority is
 
 9 explicitly stated.
 
10      (d)  A durable power of attorney for health care decisions
 
11 shall only be effective during the period of incapacity of the
 
12 principal as determined by a licensed physician.
 
13      (e)  No person shall serve as both the treating physician
 
14 and attorney-in-fact for any principal for matters relating to
 
15 health care decisions.
 
16      (f)  A durable power of attorney for health care decisions
 
17 executed prior to June 12, 1992, that substantially complies with
 
18 the requirements of this chapter shall be considered valid
 
19 provided that the powers relating to the health care decisions
 
20 granted in the power of attorney have not been previously revoked
 
21 by the principal or otherwise terminated.]"
 
22      SECTION 3.  Chapter 327D, Hawaii Revised Statutes, is
 
23 repealed.
 

 
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 1      SECTION 4.  Section 551D-2.6, Hawaii Revised Statutes, is
 
 2 repealed.
 
 3      ["[551D-2.6]  Durable power of attorney sample form.  The
 
 4 following sample form may be copied and used by filling in the
 
 5 blanks or may be changed to add more individualized instructions;
 
 6 or an entirely different format may be used to provide health
 
 7 care instructions.
 
 8        DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
 
 9 A.   Statement of Principal
 
10      Declaration made this ________ day of ___________ (month,
 
11 year).  I, _________________, being of sound mind, and
 
12 understanding that I have the right to request that my life be
 
13 prolonged to the greatest extent possible, willfully and
 
14 voluntarily make known my desire that my attorney-in-fact
 
15 ("agent") shall be authorized as set forth below and do hereby
 
16 declare:
 
17      My instructions shall prevail even if they create a conflict
 
18 with the desires of my relatives, hospital policies, or the
 
19 principles of those providing my care.
 
20                             CHECKLIST
 
21      I have considered the extent of the authority 
 
22 I want my agent to have with respect to health care decisions if
 
23 I should develop a terminal condition or a permanent loss of the
 

 
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 1 ability to communicate concerning medical treatment decisions
 
 2 with no reasonable chance of regaining this ability.  I want my
 
 3 agent to request care, including medicine and procedures, for the
 
 4 purpose of providing comfort and pain relief.  I have also
 
 5 considered whether my agent should have the authority to decide
 
 6 whether or not my life should be prolonged, and have selected one
 
 7 of the following provisions by putting a mark in the space
 
 8 provided:
 
 9      ( )  My agent is authorized to decide whether my life should
 
10           be prolonged through surgery, resuscitation, life
 
11           sustaining medicine or procedures, and tube or other
 
12           artificial feeding or provisions of fluids by a tube.
 
13      ( )  My agent is authorized to decide whether my life should
 
14           be prolonged through tube or other artificial feeding
 
15           or provisions of fluids by a tube.
 
16      If neither provision is selected, it shall be presumed that
 
17 my agent shall have only the power to request care, including
 
18 medicine and procedures, for the purpose of providing comfort and
 
19 pain relief.
 
20      This durable power of attorney shall control in all
 
21 circumstances.  I understand that my physician may not act as my
 
22 agent under this durable power of attorney.
 

 
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 1      I understand the full meaning of this durable power of
 
 2 attorney and I am emotionally and mentally competent to make this
 
 3 declaration.
 
 4                                      Signed _____________________
 
 5                                      Address ____________________
 
 6 B.  Statement of Witnesses
 
 7      I am at least eighteen years of age and -not related to the
 
 8      principal by blood, marriage, or adoption; and
 
 9      -not currently the attending physician, an employee of the
 
10      attending physician, or an employee of the health care
 
11      facility in which the principal is a patient.
 
12      The principal is personally known to me and I believe the
 
13 principal to be of sound mind.
 
14                                    Witness ______________________
 
15                                    Address ______________________
 
16                                    Witness ______________________
 
17                                    Address ______________________
 
18 C.  Statement of Agent
 
19      I am at least eighteen years of age, I accept the
 
20 appointment under this durable power of attorney as the attorney-
 
21 in-fact ("agent") of the principal, and I am not the physician of
 
22 the principal.  The principal is personally known to me and I
 
23 believe the principal to be of sound mind.
 

 
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 1                                      Agent ______________________
 
 2                                     Address _____________________
 
 3 D.  Notarization.
 
 4      Subscribed, sworn to and acknowledged before me by
 
 5 _________________, the principal, and subscribed and sworn to
 
 6 before me by ______________________ and __________, witnesses,
 
 7 this day of ____________, 19 ____.
 
 8 (SEAL)
 
 9                              Signed _____________________________
 
10                                     _____________________________
 
11                                  (Official capacity of officer)"]
 
12      SECTION 5.  If any provision of this chapter or its
 
13 application to any person or circumstance is held invalid, the
 
14 invalidity does not affect other provisions or applications of
 
15 this chapter which can be given effect without the invalid
 
16 provision or application, and to this end the provisions of this
 
17 chapter are severable.
 
18      SECTION 6.  Statutory material to be repealed is bracketed.
 
19 New statutory material is underscored.
 
20      SECTION 7.  This Act shall take effect on July 1, 1999.
 
21 
 
22                           INTRODUCED BY:  _______________________
 

 
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