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 HD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        171
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
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                              PART I
 
 2      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 3 a new chapter to be appropriately designated and to read as
 
 4 follows:
 
 5                             "CHAPTER
 
 6           UNIFORM HEALTH-CARE DECISIONS ACT (MODIFIED)
 
 7          -1  Short title.  This chapter may be cited as the
 
 8 Uniform Health-Care Decisions Act (Modified).
 
 9          -2  Definitions.  Whenever used in this chapter, unless
 
10 the context otherwise requires:
 
11      "Advance health-care directive" means an individual
 
12 instruction or a power of attorney for health care.
 
13      "Agent" means an individual designated in a power of
 
14 attorney for health care to make a health-care decision for the
 
15 individual granting the power.
 
16      "Capacity" means an individual's ability to understand the
 
17 significant benefits, risks, and alternatives to proposed health
 
18 care and to make and communicate a health-care decision.
 
19      "Guardian" means a judicially appointed guardian or
 
20 conservator having authority to make a health-care decision for
 

 
Page 2                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
Page 3                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
Page 4                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
Page 5                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
Page 6                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           within this state, the notary public certifying to the
 
 2           substance of the following:
 
 3           "State of Hawaii
 
 4           County of _________________
 
 5           On this _______ day of __________, in the year ____,
 
 6           before me, _______________, (insert name of notary
 
 7           public) appeared _______________, personally known to
 
 8           me (or proved to me on the basis of satisfactory
 
 9           evidence) to be the person whose name is subscribed to
 
10           this instrument, and acknowledged that he or she
 
11           executed it.
 
12           Notary Seal
 
13           _____________________________
 
14           (Signature of Notary Public)
 
15           My Commission Expires:"
 
16      (c)  A witness for a power of attorney for health care shall
 
17 not be:
 
18      (1)  A health-care provider;
 
19      (2)  An employee of a health-care provider or facility; or
 
20      (3)  The agent.
 
21      (d)  At least one of the individuals used as a witness for a
 
22 power of attorney for health care shall be someone who is
 
23 neither:
 

 
Page 7                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      (1)  A relative of the principal by blood, marriage, or
 
 2           adoption; nor
 
 3      (2)  An individual who would be entitled to any portion of
 
 4           the estate of the principal upon the principal's death
 
 5           under any will or codicil thereto of the principal
 
 6           existing at the time of execution of the power of
 
 7           attorney for health care or by operation of law then
 
 8           existing.
 
 9      (e)  Unless otherwise specified in a power of attorney for
 
10 health care, the authority of an agent becomes effective only
 
11 upon a determination that the principal lacks capacity, and
 
12 ceases to be effective upon a determination that the principal
 
13 has recovered capacity.
 
14      (f)  Unless otherwise specified in a written advance health-
 
15 care directive, a determination that an individual lacks or has
 
16 recovered capacity, or that another condition exists that affects
 
17 an individual instruction or the authority of an agent, must be
 
18 made by the primary physician.
 
19      (g)  An agent shall make a health-care decision in
 
20 accordance with the principal's individual instructions, if any,
 
21 and other wishes to the extent known to the agent.  Otherwise,
 
22 the agent shall make the decision in accordance with the agent's
 
23 determination of the principal's best interest.  In determining
 

 
Page 8                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 the principal's best interest, the agent shall consider the
 
 2 principal's personal values to the extent known to the agent.
 
 3      (h)  A health-care decision made by an agent for a principal
 
 4 shall be effective without judicial approval.
 
 5      (i)  A written advance health-care directive may include the
 
 6 individual's nomination of a guardian of the person.
 
 7      (j)  An advance health-care directive shall be valid for
 
 8 purposes of this chapter if it complies with this chapter,
 
 9 regardless of when or where executed or communicated.
 
10          -4  Revocation of advance health-care directive.(a)
 
11 An individual may revoke the designation of an agent only by a
 
12 signed writing or by personally informing the supervising health-
 
13 care provider.
 
14      (b)  An individual may revoke all or part of an advance
 
15 health-care directive, other than the designation of an agent, at
 
16 any time and in any manner that communicates an intent to revoke.
 
17      (c)  A health-care provider, agent, guardian, or surrogate
 
18 who is informed of a revocation shall promptly communicate the
 
19 fact of the revocation to the supervising health-care provider
 
20 and to any health-care institution at which the patient is
 
21 receiving care.
 
22      (d)  A decree of annulment, divorce, dissolution of
 
23 marriage, or legal separation revokes a previous designation of a
 

 
Page 9                                                     171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 spouse as agent unless otherwise specified in the decree or in a
 
 2 power of attorney for health care.
 
 3      (e)  An advance health-care directive that conflicts with an
 
 4 earlier advance health-care directive revokes the earlier
 
 5 directive to the extent of the conflict.
 
 6          -5  Optional form.  The following form may be used to
 
 7 create an advance health-care directive.  The other sections of
 
 8 this chapter govern the effect of this or any other writing used
 
 9 to create an advance health-care directive.  An individual may
 
10 complete or modify all or any part of the following form:
 
11                  "ADVANCE HEALTH-CARE DIRECTIVE
 
12                            Explanation
 
13      You have the right to give instructions about your own
 
14 health care.  You also have the right to name someone else to
 
15 make health-care decisions for you.  This form lets you do either
 
16 or both of these things.  It also lets you express your wishes
 
17 regarding the designation of your primary physician.  If you use
 
18 this form, you may complete or modify all or any part of it.  You
 
19 are free to use a different form.
 
20      Part 1 of this form is a power of attorney for health care.
 
21 Part 1 lets you name another individual as agent to make health-
 
22 care decisions for you if you become incapable of making your own
 
23 decisions or if you want someone else to make those decisions for
 

 
Page 10                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 you now even though you are still capable.  You may name an
 
 2 alternate agent to act for you if your first choice is not
 
 3 willing, able, or reasonably available to make decisions for you.
 
 4 Unless related to you, your agent may not be an owner, operator,
 
 5 or employee of a health-care institution where you are receiving
 
 6 care.
 
 7      Unless the form you sign limits the authority of your agent,
 
 8 your agent may make all health-care decisions for you.  This form
 
 9 has a place for you to limit the authority of your agent.  You
 
10 need not limit the authority of your agent if you wish to rely on
 
11 your agent for all health-care decisions that may have to be
 
12 made.  If you choose not to limit the authority of your agent,
 
13 your agent will have the right to:
 
14      (a)  Consent or refuse consent to any care, treatment,
 
15           service, or procedure to maintain, diagnose, or
 
16           otherwise affect a physical or mental condition;
 
17      (b)  Select or discharge health-care providers and
 
18           institutions;
 
19      (c)  Approve or disapprove diagnostic tests, surgical
 
20           procedures, programs of medication, and orders not to
 
21           resuscitate; and
 
22      (d)  Direct the provision, withholding, or withdrawal of
 
23           artificial nutrition and hydration and all other forms
 

 
Page 11                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           of health care.
 
 2      Part 2 of this form lets you give specific instructions
 
 3 about any aspect of your health care.  Choices are provided for
 
 4 you to express your wishes regarding the provision, withholding,
 
 5 or withdrawal of treatment to keep you alive, including the
 
 6 provision of artificial nutrition and hydration, as well as the
 
 7 provision of pain relief.  Space is provided for you to add to
 
 8 the choices you have made or for you to write out any additional
 
 9 wishes.
 
10      Part 4 of this form lets you designate a physician to have
 
11 primary responsibility for your health care.
 
12      After completing this form, sign and date the form at the
 
13 end and have the form witnessed by one of the two alternative
 
14 methods listed below.  Give a copy of the signed and completed
 
15 form to your physician, to any other health-care providers you
 
16 may have, to any health-care institution at which you are
 
17 receiving care, and to any health-care agents you have named.
 
18 You should talk to the person you have named as agent to make
 
19 sure that he or she understands your wishes and is willing to
 
20 take the responsibility.
 
21      You have the right to revoke this advance health-care
 
22 directive or replace this form at any time.
 
23                              PART 1
 
24        DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
 

 
Page 12                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 DESIGNATION OF AGENT: I designate the following individual as my
 
 2 agent to make health-care decisions for me:
 
 3 ____________________________________________________________
 
 4 (name of individual you choose as agent)
 
 5 ___________________________________________________________
 
 6 (address)(city) (state) (zip code)
 
 7 ___________________________________________________________
 
 8 (home phone) (work phone)
 
 9      OPTIONAL: If I revoke my agent's authority or if my agent is
 
10 not willing, able, or reasonably available to make a health-care
 
11 decision for me, I designate as my first alternate agent:
 
12 ___________________________________________________________
 
13 (name of individual you choose as first alternate agent)
 
14 ___________________________________________________________
 
15 (address) (city) (state) (zip code)
 
16 ___________________________________________________________
 
17 (home phone) (work phone)
 
18      OPTIONAL: If I revoke the authority of my agent and first
 
19 alternate agent or if neither is willing, able, or reasonably
 
20 available to make a health-care decision for me, I designate as
 
21 my second alternate agent:
 
22 ___________________________________________________________
 
23 (name of individual you choose as second alternate agent)
 

 
Page 13                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 ___________________________________________________________
 
 2 (address) (city) (state) (zip code)
 
 3 ___________________________________________________________
 
 4           (home phone) (work phone)
 
 5      (2)  AGENT'S AUTHORITY: My agent is authorized to make all
 
 6 health-care decisions for me, including decisions to provide,
 
 7 withhold, or withdraw artificial nutrition and hydration, and all
 
 8 other forms of health care to keep me alive, except as I state
 
 9 here:
 
10 ___________________________________________________________
 
11 ___________________________________________________________
 
12 ___________________________________________________________
 
13                (Add additional sheets if needed.)
 
14      (3)  WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's
 
15 authority becomes effective when my primary physician determines
 
16 that I am unable to make my own health-care decisions unless I
 
17 mark the following box.  If I mark this box [ ], my agent's
 
18 authority to make health-care decisions for me takes effect
 
19 immediately.
 
20      (4)  AGENT'S OBLIGATION: My agent shall make health-care
 
21 decisions for me in accordance with this power of attorney for
 
22 health care, any instructions I give in Part 2 of this form, and
 
23 my other wishes to the extent known to my agent.  To the extent
 

 
Page 14                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 my wishes are unknown, my agent shall make health-care decisions
 
 2 for me in accordance with what my agent determines to be in my
 
 3 best interest.  In determining my best interest, my agent shall
 
 4 consider my personal values to the extent known to my agent.
 
 5      (5)  NOMINATION OF GUARDIAN: If a guardian of my person
 
 6 needs to be appointed for me by a court, I nominate the agent
 
 7 designated in this form.  If that agent is not willing, able, or
 
 8 reasonably available to act as guardian, I nominate the alternate
 
 9 agents whom I have named, in the order designated.
 
10                              PART 2
 
11                   INSTRUCTIONS FOR HEALTH CARE
 
12      If you are satisfied to allow your agent to determine what
 
13 is best for you in making end-of-life decisions, you need not
 
14 fill out this part of the form.  If you do fill out this part of
 
15 the form, you may strike any wording you do not want.
 
16      (6) END-OF-LIFE DECISIONS: I direct that my health-care
 
17 providers and others involved in my care provide, withhold, or
 
18 withdraw treatment in accordance with the choice I have marked
 
19 below:
 
20      [   ] (a) Choice Not To Prolong Life
 
21      I do not want my life to be prolonged if (i) I have an
 
22 incurable and irreversible condition that will result in my death
 
23 within a relatively short time, (ii) I become unconscious and, to
 

 
Page 15                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 a reasonable degree of medical certainty, I will not regain
 
 2 consciousness, or (iii) the likely risks and burdens of treatment
 
 3 would outweigh the expected benefits, OR
 
 4      [   ] (b) Choice To Prolong Life
 
 5      I want my life to be prolonged as long as possible within
 
 6 the limits of generally accepted health-care standards.
 
 7      (7)  ARTIFICIAL NUTRITION AND HYDRATION:  Artificial
 
 8 nutrition and hydration must be provided, withheld or withdrawn
 
 9 in accordance with the choice I have made in paragraph (6) unless
 
10 I mark the following box.  If I mark this box [   ], artificial
 
11 nutrition and hydration must be provided regardless of my
 
12 condition and regardless of the choice I have made in paragraph
 
13 (6).
 
14      (8)  RELIEF FROM PAIN: Except as I state in the following
 
15 space, I direct that treatment for alleviation of pain or
 
16 discomfort be provided at all times, even if it hastens my death:
 
17 _________________________________________________________________
 
18 _________________________________________________________________
 
19      (9)  OTHER WISHES: (If you do not agree with any of the
 
20 optional choices above and wish to write your own, or if you wish
 
21 to add to the instructions you have given above, you may do so
 
22 here.)  I direct that:
 
23 ____________________________________________________________
 

 
Page 16                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 ____________________________________________________________
 
 2                (Add additional sheets if needed.)
 
 3                              PART 3
 
 4                    DONATION OF ORGANS AT DEATH
 
 5                            (OPTIONAL)
 
 6      (10) Upon my death (mark applicable box)
 
 7      [ ]  (a)  I give any needed organs, tissues, or parts,
 
 8           OR
 
 9      [ ]  (b)  I give the following organs, tissues, or parts
 
10           only
 
11           __________________________________________________
 
12           (c)  My gift is for the following purposes (strike any
 
13           of the following you do not want)
 
14           (i)   Transplant
 
15           (ii)  Therapy
 
16           (iii) Research
 
17           (iv)  Education
 
18                              PART 4
 
19                         PRIMARY PHYSICIAN
 
20                            (OPTIONAL)
 
21      (11) I designate the following physician as my primary
 
22 physician:
 
23 ____________________________________________________________
 

 
Page 17                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 (name of physician)
 
 2 ___________________________________________________________
 
 3 (address) (city) (state) (zip code)
 
 4 __________________________________________________________
 
 5 (phone)
 
 6      OPTIONAL:  If the physician I have designated above is not
 
 7 willing, able, or reasonably available to act as my primary
 
 8 physician, 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 ___________________________________________________________
 
17      (12) EFFECT OF COPY:  A copy of this form has the same
 
18 effect as the original.
 
19      (13) SIGNATURES:  Sign and date the form here:
 
20 _____________________________ _____________________________
 
21 (date)                        (sign your name)
 
22 _____________________________ _____________________________
 
23 (address)                     (print your name)
 

 
Page 18                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 _____________________________
 
 2 (city) (state)
 
 3      (14) WITNESSES: This power of attorney will not be valid for
 
 4 making health-care decisions unless it is either (a) signed by
 
 5 two qualified adult witnesses who are personally known to you and
 
 6 who are present when you sign or acknowledge your signature; or
 
 7 (b) acknowledged before a notary public in the state.
 
 8                         ALTERNATIVE NO. 1
 
 9      Witness
 
10      I declare under penalty of false swearing pursuant to
 
11 section 710-1062, Hawaii Revised Statutes, that the principal is
 
12 personally known to me, that the principal signed or acknowledged
 
13 this power of attorney in my presence, that the principal appears
 
14 to be of sound mind and under no duress, fraud, or undue
 
15 influence, that I am not the person appointed as agent by this
 
16 document, and that I am not a health-care provider, nor an
 
17 employee of a health-care provider or facility.  I am not related
 
18 to the principal by blood, marriage, or adoption, and to the best
 
19 of my knowledge, I am not entitled to any part of the estate of
 
20 the principal upon the death of the principal under a will now
 
21 existing or by operation of law.
 
22 _____________________________ _____________________________
 
23 (date)                        (signature of witness)
 

 
Page 19                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 _____________________________ _____________________________
 
 2 (address)                     (printed name of witness)
 
 3 _____________________________ _____________________________
 
 4 (city)                        (state)
 
 5      Witness
 
 6      I declare under penalty of false swearing pursuant to
 
 7 section 710-1062, Hawaii Revised Statutes, that the principal is
 
 8 personally known to me, that the principal signed or acknowledged
 
 9 this power of attorney in my presence, that the principal appears
 
10 to be of sound mind and under no duress, fraud, or undue
 
11 influence, that I am not the person appointed as agent by this
 
12 document, and that I am not a health-care provider, nor an
 
13 employee of a health-care provider or facility.
 
14 _____________________________ _____________________________
 
15 (date)                        (signature of witness)
 
16 _____________________________ _____________________________
 
17 (address)                     (printed name of witness)
 
18 _____________________________ _____________________________
 
19 (city)                        (state)
 
20                         ALTERNATIVE NO. 2
 
21 State of Hawaii
 
22 County of ________________
 
23 On this _______ day of __________, in the year ____, before me,
 

 
Page 20                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 _______________ (insert name of notary public) appeared
 
 2 _______________, personally known to me (or proved to me on the
 
 3 basis of satisfactory evidence) to be the person whose name is
 
 4 subscribed to this instrument, and acknowledged that he or she
 
 5 executed it.
 
 6 Notary Seal
 
 7 ____________________________
 
 8 (Signature of Notary Public)"
 
 9          -6  Decisions by a surrogate. (a)  A surrogate may make
 
10 a health-care decision for a patient who is an adult or
 
11 emancipated minor if the patient has been determined by the
 
12 primary physician to lack capacity and no agent or guardian has
 
13 been appointed or the agent or guardian is not reasonably
 
14 available.
 
15      (b)  An adult or emancipated minor may designate any
 
16 individual to act as surrogate by personally informing the
 
17 supervising health-care provider.  
 
18      (c)  In the absence of a designation, or if the designee is
 
19 not reasonably available, any member of the patient's family or
 
20 an adult who has exhibited special care and concern for the
 
21 patient, who is familiar with the patient's personal values, and
 
22 who is reasonably available may act as surrogate.
 
23      (d)  A surrogate shall communicate the surrogate's
 

 
Page 21                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 assumption of authority as promptly as practicable to the members
 
 2 of the patient's family specified in subsection (b) who can be
 
 3 readily contacted.
 
 4      (e)  If more than one individual assumes authority to act as
 
 5 surrogate, and they do not agree on a health-care decision and
 
 6 the supervising health-care provider is so informed, the
 
 7 supervising health-care provider shall call for and hold a
 
 8 meeting to determine who will act as the agreed upon
 
 9 surrogate(s).  If no agreement is reached as to who should serve
 
10 as a surrogate decision-maker then guardianship shall be sought.
 
11      (f)  A surrogate shall make a health-care decision in
 
12 accordance with the patient's individual instructions, if any,
 
13 and other wishes to the extent known to the surrogate.
 
14 Otherwise, the surrogate shall make the decision in accordance
 
15 with the surrogate's determination of the patient's best
 
16 interest.  In determining the patient's best interest, the
 
17 surrogate shall consider the patient's personal values to the
 
18 extent known to the surrogate.
 
19      (g)  A health-care decision made by a surrogate for a
 
20 patient is effective without judicial approval.
 
21      (h)  An individual at any time may disqualify another,
 
22 including a member of the individual's family, from acting as the
 
23 individual's surrogate by a signed writing or by personally
 
24 informing the supervising health-care provider of the
 

 
Page 22                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
Page 23                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
Page 24                                                    171
                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

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

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 health-care directive, shall be subject to liability to that
 
 2 individual for damages of $2,500 or actual damages resulting from
 
 3 the action, whichever is greater, plus reasonable attorney's
 
 4 fees.
 
 5          -12  Capacity.(a)  This chapter does not affect the
 
 6 right of an individual to make health-care decisions while having
 
 7 capacity to do so.
 
 8      (b)  An individual is presumed to have capacity to make a
 
 9 health-care decision, to give or revoke an advance health-care
 
10 directive, and to designate or disqualify a surrogate.
 
11          -13  Effect of copy.  A copy of a written advance
 
12 health-care directive, revocation of an advance health-care
 
13 directive, or designation or disqualification of a surrogate has
 
14 the same effect as the original.
 
15          -14  Effect of this chapter.(a)  This chapter shall
 
16 not create a presumption concerning the intention of an
 
17 individual who has not made or who has revoked an advance health-
 
18 care directive.
 
19      (b)  Death resulting from the withholding or withdrawal of
 
20 health care in accordance with this chapter shall not for any
 
21 purpose constitute a suicide or homicide or legally impair or
 
22 invalidate a policy of insurance or an annuity providing a death
 
23 benefit, notwithstanding any term of the policy or annuity to the
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 other equitable relief.  A proceeding under this section shall be
 
 2 governed by part 3 of article V of chapter 560.
 
 3         -16  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      SECTION 2.  Section 551D-2.5, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "[[]551D-2.5[]]  Durable power of attorney for health care
 
10 decisions.  [(a)]  A competent person who has attained the age of
 
11 majority may execute a durable power of attorney authorizing an
 
12 agent to make any lawful health care decisions [that could have
 
13 been made by the principal at the time of election.] pursuant to
 
14 the Uniform Health-Care Decisions Act (Modified), chapter  .
 
15      [(b)  The durable power of attorney made pursuant to this
 
16 section:
 
17      (1)  Shall be in writing;
 
18      (2)  Shall be signed by the principal, or by another person
 
19           in the principal's presence and at the principal's
 
20           expressed direction;
 
21      (3)  Shall be dated;
 
22      (4)  Shall be signed in the presence of two or more
 
23           witnesses who:
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           (A)  Are at least eighteen years of age;
 
 2           (B)  Are not related to the principal by blood,
 
 3                marriage, or adoption; and
 
 4           (C)  Are not, at the time that the durable power of
 
 5                attorney is executed, attending physicians,
 
 6                employees of an attending physician, or employees
 
 7                of a health care facility in which the principal
 
 8                is a patient; and
 
 9      (5)  Shall have all signatures notarized at the same time.
 
10      (c)  A durable power of attorney for health care decisions
 
11 shall be presumed not to grant authority to decide that the
 
12 principal's life should not be prolonged through surgery,
 
13 resuscitation, life sustaining medicine or procedures or the
 
14 provision of nutrition or hydration, unless such authority is
 
15 explicitly stated.
 
16      (d)  A durable power of attorney for health care decisions
 
17 shall only be effective during the period of incapacity of the
 
18 principal as determined by a licensed physician.
 
19      (e)  No person shall serve as both the treating physician
 
20 and attorney-in-fact for any principal for matters relating to
 
21 health care decisions.
 
22      (f)  A durable power of attorney for health care decisions
 
23 executed prior to June 12, 1992, that substantially complies with
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 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.
 
24                             CHECKLIST
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 believe the principal to be of sound mind.
 
 2                                      Agent ______________________
 
 3                                     Address _____________________
 
 4 D.  Notarization.
 
 5      Subscribed, sworn to and acknowledged before me by
 
 6 _________________, the principal, and subscribed and sworn to
 
 7 before me by ______________________ and __________, witnesses,
 
 8 this day of ____________, 19 ____.
 
 9 (SEAL)
 
10                              Signed _____________________________
 
11                                     _____________________________
 
12                                  (Official capacity of officer)"]
 
13      SECTION 4.  Chapter 327D, Hawaii Revised Statutes, is
 
14 repealed.
 
15      SECTION 5.  If any provision of this chapter or its
 
16 application to any person or circumstance is held invalid, the
 
17 invalidity does not affect other provisions or applications of
 
18 this chapter which can be given effect without the invalid
 
19 provision or application, and to this end the provisions of this
 
20 chapter are severable.
 
21      SECTION 6.  Statutory material to be repealed is bracketed.
 
22 New statutory material is underscored.
 
23      SECTION 7.  This Act shall take effect upon its approval.