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. (SD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        171
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                S.D. 2
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.
 
18      "Guardian" means a judicially appointed guardian or
 
19 conservator having authority to make a health-care decision for
 
20 an individual.
 

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

 
 1      "Emancipated minor" means a person under eighteen years of
 
 2 age who is totally self-supporting.
 
 3      "Health care" means any care, treatment, service, or
 
 4 procedure to maintain, diagnose, or otherwise affect an
 
 5 individual's physical or mental condition, including:
 
 6      (1)  Selection and discharge of health-care providers and
 
 7           institutions;
 
 8      (2)  Approval or disapproval of diagnostic tests, surgical
 
 9           procedures, programs of medication, and orders not to
 
10           resuscitate; and
 
11      (3)  Directions to provide, withhold, or withdraw artificial
 
12           nutrition and hydration; provided that withholding or
 
13           withdrawing artificial nutrition or hydration is in
 
14           accord with the health care providers prevailing
 
15           clinical standard of care.
 
16      "Health-care decision" means a decision made by an
 
17 individual or the individual's agent, guardian, or surrogate,
 
18 regarding the individual's health care.
 
19      "Health-care institution" means an institution, facility, or
 
20 agency licensed, certified, or otherwise authorized or permitted
 
21 by law to provide health care in the ordinary course of business.
 
22      "Health-care provider" means an individual licensed,
 
23 certified, or otherwise authorized or permitted by law to provide
 

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

 
 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 able to be contacted with a
 
21 level of diligence appropriate to the seriousness and urgency of
 
22 a patient's health care needs, and willing and able to act in a
 
23 timely manner considering the urgency of the patient's health
 

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

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

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

 
 1 marriage, or adoption, an agent may not be an owner, operator, or
 
 2 employee of the health-care institution at which the principal is
 
 3 receiving care.  The power shall be in writing, contain the date
 
 4 of its execution, be signed by the principal, and be witnessed by
 
 5 one of the following methods:
 
 6      (1)  Signed by at least two individuals, each of whom
 
 7           witnessed either the signing of the instrument by the
 
 8           principal or the principal's acknowledgement of the
 
 9           signature or of the instrument; or
 
10      (2)  Acknowledged before a notary public at any place within
 
11           this State.
 
12      (c)  A witness for a power of attorney for health care shall
 
13 not be:
 
14      (1)  A health-care provider;
 
15      (2)  An employee of a health-care provider or facility; or
 
16      (3)  The agent.
 
17      (d)  At least one of the individuals used as a witness for a
 
18 power of attorney for health care shall be someone who is
 
19 neither:
 
20      (1)  Related to the principal by blood, marriage, or
 
21           adoption; nor
 
22      (2)  Entitled to any portion of the estate of the principal
 
23           upon the principal's death under any will or codicil
 

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

 
 1           thereto of the principal existing at the time of
 
 2           execution of the power of attorney for health care or
 
 3           by operation of law then existing.
 
 4      (e)  Unless otherwise specified in a power of attorney for
 
 5 health care, the authority of an agent becomes effective only
 
 6 upon a determination that the principal lacks capacity, and
 
 7 ceases to be effective upon a determination that the principal
 
 8 has recovered capacity.
 
 9      (f)  Unless otherwise specified in a written advance health-
 
10 care directive, a determination that an individual lacks or has
 
11 recovered capacity, or that another condition exists that affects
 
12 an individual instruction or the authority of an agent, must be
 
13 made by the primary physician.
 
14      (g)  An agent shall make a health-care decision in
 
15 accordance with the principal's individual instructions, if any,
 
16 and other wishes to the extent known to the agent.  Otherwise,
 
17 the agent shall make the decision in accordance with the agent's
 
18 determination of the principal's best interest.  In determining
 
19 the principal's best interest, the agent shall consider the
 
20 principal's personal values to the extent known to the agent.
 
21      (h)  A health-care decision made by an agent for a principal
 
22 shall be effective without judicial approval.
 
23      (i)  A written advance health-care directive may include the
 

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

 
 1 individual's nomination of a guardian of the person.
 
 2      (j)  An advance health-care directive shall be valid for
 
 3 purposes of this chapter if it complies with this chapter,
 
 4 regardless of when or where executed or communicated.
 
 5          -4  Revocation of advance health-care directive.(a)
 
 6 An individual may revoke the designation of an agent only by a
 
 7 signed writing or by personally informing the supervising health-
 
 8 care provider.
 
 9      (b)  An individual may revoke all or part of an advance
 
10 health-care directive, other than the designation of an agent, at
 
11 any time and in any manner that communicates an intent to revoke.
 
12      (c)  A health-care provider, agent, guardian, or surrogate
 
13 who is informed of a revocation shall promptly communicate the
 
14 fact of the revocation to the supervising health-care provider
 
15 and to any health-care institution at which the patient is
 
16 receiving care.
 
17      (d)  A decree of annulment, divorce, dissolution of
 
18 marriage, or legal separation revokes a previous designation of a
 
19 spouse as agent unless otherwise specified in the decree or in a
 
20 power of attorney for health care.
 
21      (e)  An advance health-care directive that conflicts with an
 
22 earlier advance health-care directive revokes the earlier
 
23 directive to the extent of the conflict.
 

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

 
 1         -5  Health care decisions; surrogates. (a)  A patient
 
 2 may designate any individual to act as a surrogate either in
 
 3 writing or by personally informing the supervising health care
 
 4 provider.  In the absence of such a designation, or if the
 
 5 designee is not reasonably available, any member of the following
 
 6 classes of the patient's family who is reasonably available, in
 
 7 descending order of priority, may act as a surrogate:
 
 8      (1)  The spouse, unless legally separated;
 
 9      (2)  A reciprocal beneficiary;
 
10      (3)  An adult child;
 
11      (4)  A parent;
 
12      (5)  An adult brother or sister;
 
13      (6)  An adult who has exhibited special care and concern for
 
14           the patient and who is familiar with the patient's
 
15           personal values.
 
16 Unless related to the patient by blood, marriage, or adoption, a
 
17 surrogate may not be an owner, operator, or employee of a health
 
18 care institution where the patient is receiving care.
 
19      (b)  A surrogate may make a health-care decision for a
 
20 patient who is an adult or emancipated minor if the patient has
 
21 been determined by the primary physician to lack capacity and no
 
22 agent or guardian has been appointed or the agent or guardian is
 
23 not reasonably available.  A surrogate shall make a health-care
 

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

 
 1 decision in accordance with the patient's individual
 
 2 instructions, if any, and other wishes to the extent known to the
 
 3 surrogate.  Otherwise, the surrogate shall make the decision in
 
 4 accordance with the surrogate's determination of the patient's
 
 5 best interest, after consultation with the supervising health
 
 6 care provider to ascertain the risks and benefits of the
 
 7 decisions being considered and available alternatives.  In
 
 8 determining the patient's best interest, the surrogate shall
 
 9 consider the patient's personal values to the extent known to the
 
10 surrogate.
 
11      (1)  A surrogate who has been designated by the patient,
 
12           either in writing or orally, may make the following
 
13           health-care decision for the patient:  the selection
 
14           and discharge of health-care providers and
 
15           institutions; the approval or disapproval of diagnostic
 
16           tests, surgical procedures, programs of medication, and
 
17           orders not to resuscitate; and the directions to
 
18           provide, withhold, or withdraw artificial nutrition and
 
19           hydration; and
 
20      (2)  A surrogate who has been not been designated by the
 
21           patient may make the following health-care decisions
 
22           for the patient:  the selection and discharge of
 
23           health-care providers and institutions and the approval
 

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

 
 1           or disapproval of diagnostic tests, surgical
 
 2           procedures, programs of medication, and orders not to
 
 3           resuscitate.
 
 4      (c)  A surrogate shall communicate the surrogate's
 
 5 assumption of authority as promptly as practicable to the members
 
 6 of the patient's family specified in subsection (a) who can be
 
 7 readily contacted.
 
 8      (d)  If more than one individual assumes authority to act as
 
 9 a surrogate, and they do not agree on a health-care decision and
 
10 the supervising health-care provider is so informed, the
 
11 supervising health-care provider shall call for and hold a
 
12 meeting to determine who will act as the agreed upon surrogate.
 
13 If no agreement is reached as to who should serve as a surrogate
 
14 decision-maker then guardianship shall be sought.
 
15      (e)  A health-care decision made by a surrogate for a
 
16 patient is effective without judicial approval.
 
17      (f)  A supervising health-care provider shall require a
 
18 surrogate to provide a written declaration under penalty of false
 
19 swearing stating facts and circumstances reasonably sufficient to
 
20 establish the claimed authority.
 
21          -6  Decisions by guardian.(a)  A guardian shall
 
22 comply with the ward's individual instructions and shall not
 

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

 
 1 revoke the ward's pre-incapacity advance health-care directive
 
 2 unless expressly authorized by a court.
 
 3      (b)  Absent a court order to the contrary, a health-care
 
 4 decision of an agent takes precedence over that of a guardian.
 
 5      (c)  A health-care decision made by a guardian for the ward
 
 6 is effective without judicial approval.
 
 7          -7  Obligations of health-care provider.  (a)  Before
 
 8 implementing a health-care decision made for a patient, a
 
 9 supervising health-care provider, if possible, shall promptly
 
10 communicate to the patient the decision made and the identity of
 
11 the person making the decision.
 
12      (b)  A supervising health-care provider who knows of the
 
13 existence of an advance health-care directive, a revocation of an
 
14 advance health-care directive, or a designation or
 
15 disqualification of a surrogate, shall promptly record its
 
16 existence in the patient's health-care record and, if it is in
 
17 writing, shall request a copy and if one is furnished shall
 
18 arrange for its maintenance in the health-care record.
 
19      (c)  A primary physician who makes or is informed of a
 
20 determination that a patient lacks or has recovered capacity, or
 
21 that another condition exists which affects an individual
 
22 instruction or the authority of an agent, guardian, or surrogate,
 
23 shall promptly record the determination in the patient's
 

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

 
 1 health-care record and communicate the determination to the
 
 2 patient, if possible, and to any person then authorized to make
 
 3 health-care decisions for the patient.
 
 4      (d)  Except as provided in subsections (e) and (f), a
 
 5 health-care provider or institution providing care to a patient
 
 6 shall:
 
 7      (1)  Comply with an individual instruction of the patient
 
 8           and with a reasonable interpretation of that
 
 9           instruction made by a person then authorized to make
 
10           health-care decisions for the patient; and
 
11      (2)  Comply with a health-care decision for the patient made
 
12           by a person then authorized to make health-care
 
13           decisions for the patient to the same extent as if the
 
14           decision had been made by the patient while having
 
15           capacity.
 
16      (e)  A health-care provider may decline to comply with an
 
17 individual instruction or health-care decision for reasons of
 
18 conscience.  A health-care institution may decline to comply with
 
19 an individual instruction or health-care decision if the
 
20 instruction or decision is contrary to a policy of the
 
21 institution which is expressly based on reasons of conscience and
 
22 if the policy was timely communicated to the patient or to a
 
23 person then authorized to make health-care decisions for the
 

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

 
 1 patient.
 
 2      (f)  A health-care provider or institution may decline to
 
 3 comply with an individual instruction or health-care decision
 
 4 that requires medically ineffective health care or health care
 
 5 contrary to generally accepted health-care standards applicable
 
 6 to the health-care provider or institution.
 
 7      (g)  A health-care provider or institution that declines to
 
 8 comply with an individual instruction or health-care decision
 
 9 shall:
 
10      (1)  Promptly so inform the patient, if possible, and any
 
11           person then authorized to make health-care decisions
 
12           for the patient;
 
13      (2)  Provide continuing care to the patient until a transfer
 
14           can be effected; and
 
15      (3)  Unless the patient or person then authorized to make
 
16           health-care decisions for the patient refuses
 
17           assistance, immediately make all reasonable efforts to
 
18           assist in the transfer of the patient to another
 
19           health-care provider or institution that is willing to
 
20           comply with the instruction or decision.
 
21      (h)  A health-care provider or institution may not require
 
22 or prohibit the execution or revocation of advance health-care
 
23 directive as a condition for providing health care.
 

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

 
 1          -8  Health-care information.  Unless otherwise
 
 2 specified in an advance health-care directive, a person then
 
 3 authorized to make health-care decisions for a patient has the
 
 4 same rights as the patient to request, receive, examine, copy,
 
 5 and consent to the disclosure of medical or any other health-care
 
 6 information.
 
 7          -9  Immunities.(a)  A health-care provider or
 
 8 institution acting in good faith and in accordance with generally
 
 9 accepted health-care standards applicable to the health-care
 
10 provider or institution shall not be subject to civil or criminal
 
11 liability or to discipline for unprofessional conduct for:
 
12      (1)  Complying with a health-care decision of a person
 
13           apparently having authority to make a health-care
 
14           decision for a patient, including a decision to
 
15           withhold or withdraw health care;
 
16      (2)  Declining to comply with a health-care decision of a
 
17           person based on a belief that the person then lacked
 
18           authority; or
 
19      (3)  Complying with an advance health-care directive and
 
20           assuming that the directive was valid when made and has
 
21           not been revoked or terminated.
 
22      (b)  An individual acting as agent, guardian, or surrogate
 
23 under this chapter shall not be subject to civil or criminal
 

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

 
 1 liability or to discipline for unprofessional conduct for health-
 
 2 care decisions made in good faith.
 
 3          -10  Statutory damages.(a)  A health-care provider or
 
 4 institution that intentionally violates this chapter shall be
 
 5 subject to liability to the individual or the individual's estate
 
 6 for damages of $500 or actual damages resulting from the
 
 7 violation, whichever is greater, plus reasonable attorney's fees.
 
 8      (b)  A person who intentionally falsifies, forges, conceals,
 
 9 defaces, or obliterates an individual's advance health-care
 
10 directive or a revocation of an advance health-care directive
 
11 without the individual's consent, or who coerces or fraudulently
 
12 induces an individual to give, revoke, or not to give an advance
 
13 health-care directive, shall be subject to liability to that
 
14 individual for damages of $2,500 or actual damages resulting from
 
15 the action, whichever is greater, plus reasonable attorney's
 
16 fees.
 
17          -11  Capacity.(a)  This chapter does not affect the
 
18 right of an individual to make health-care decisions while having
 
19 capacity to do so.
 
20      (b)  An individual is presumed to have capacity to make a
 
21 health-care decision, to give or revoke an advance health-care
 
22 directive, and to designate or disqualify a surrogate.
 
23          -12  Effect of copy.  A copy of a written advance
 

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

 
 1 health-care directive, revocation of an advance health-care
 
 2 directive, or designation or disqualification of a surrogate has
 
 3 the same effect as the original.
 
 4          -13  Effect of this chapter.(a)  This chapter shall
 
 5 not create a presumption concerning the intention of an
 
 6 individual who has not made or who has revoked an advance
 
 7 health-care directive.
 
 8      (b)  Death resulting from the withholding or withdrawal of
 
 9 health care in accordance with this chapter shall not for any
 
10 purpose constitute a suicide or homicide or legally impair or
 
11 invalidate a policy of insurance or an annuity providing a death
 
12 benefit, notwithstanding any term of the policy or annuity to the
 
13 contrary.
 
14      (c)  This chapter shall not authorize mercy killing,
 
15 assisted suicide, euthanasia, or the provision, withholding, or
 
16 withdrawal of health care, to the extent prohibited by other
 
17 statutes of this State.
 
18      (d)  This chapter shall not authorize or require a
 
19 health-care provider or institution to provide health care
 
20 contrary to generally accepted health-care standards applicable
 
21 to the health-care provider or institution.
 
22      (e)  This chapter shall not authorize an agent or surrogate
 
23 to consent to the admission of an individual to a psychiatric
 

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

 
 1 facility as defined in chapter 334, unless the individual's
 
 2 written advance health-care directive expressly so provides.
 
 3      (f)  This chapter shall not affect other statutes of this
 
 4 State governing treatment for mental illness of an individual
 
 5 involuntarily committed to a psychiatric facility.
 
 6      (g)  This chapter shall not apply to a patient diagnosed as
 
 7 pregnant by the attending physician.
 
 8          -14  Judicial relief.  On petition of a patient, the
 
 9 patient's agent, guardian, or surrogate, or a health-care
 
10 provider or institution involved with the patient's care, any
 
11 court of competent jurisdiction may enjoin or direct a health-
 
12 care decision or order other equitable relief.  A proceeding
 
13 under this section shall be governed by part 3 of article V of
 
14 chapter 560.
 
15         -15  Uniformity of application and construction.  This
 
16 chapter shall be applied and construed to effectuate its general
 
17 purpose to make uniform the law with respect to the subject of
 
18 this chapter among states enacting it.
 
19          -16  Optional form.  The following sample form may be
 
20 used to create an advance health-care directive.  This form may
 
21 be duplicated.  This form may be modified to suit the needs of
 
22 the person, or a completely different form may be used that
 
23 contains the substance of the following form.
 

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

 
 1                  "ADVANCE HEALTH-CARE DIRECTIVE
 
 2                            Explanation
 
 3      You have the right to give instructions about your own
 
 4 health care.  You also have the right to name someone else to
 
 5 make health-care decisions for you.  This form lets you do either
 
 6 or both of these things.  It also lets you express your wishes
 
 7 regarding the designation of your primary physician.  If you use
 
 8 this form, you may complete or modify all or any part of it.  You
 
 9 are free to use a different form.
 
10      Part 1 of this form is a power of attorney for health care.
 
11 Part 1 lets you name another individual as agent to make health-
 
12 care decisions for you if you become incapable of making your own
 
13 decisions or if you want someone else to make those decisions for
 
14 you now even though you are still capable.  You may name an
 
15 alternate agent to act for you if your first choice is not
 
16 willing, able, or reasonably available to make decisions for you.
 
17 Unless related to you, your agent may not be an owner, operator,
 
18 or employee of a health-care institution where you are receiving
 
19 care.
 
20      Unless the form you sign limits the authority of your agent,
 
21 your agent may make all health-care decisions for you.  This form
 
22 has a place for you to limit the authority of your agent.  You
 
23 need not limit the authority of your agent if you wish to rely on
 

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

 
 1 your agent for all health-care decisions that may have to be
 
 2 made.  If you choose not to limit the authority of your agent,
 
 3 your agent will have the right to:
 
 4      (a)  Consent or refuse consent to any care, treatment,
 
 5           service, or procedure to maintain, diagnose, or
 
 6           otherwise affect a physical or mental condition;
 
 7      (b)  Select or discharge health-care providers and
 
 8           institutions;
 
 9      (c)  Approve or disapprove diagnostic tests, surgical
 
10           procedures, programs of medication, and orders not to
 
11           resuscitate; and
 
12      (d)  Direct the provision, withholding, or withdrawal of
 
13           artificial nutrition and hydration and all other forms
 
14           of health care.
 
15      Part 2 of this form lets you give specific instructions
 
16 about any aspect of your health care.  Choices are provided for
 
17 you to express your wishes regarding the provision, withholding,
 
18 or withdrawal of treatment to keep you alive, including the
 
19 provision of artificial nutrition and hydration, as well as the
 
20 provision of pain relief medication.  Space is provided for you
 
21 to add to the choices you have made or for you to write out any
 
22 additional wishes.
 
23      Part 4 of this form lets you designate a physician to have
 

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

 
 1 primary responsibility for your health care.
 
 2      After completing this form, sign and date the form at the
 
 3 end and have the form witnessed by one of the two alternative
 
 4 methods listed below.  Give a copy of the signed and completed
 
 5 form to your physician, to any other health-care providers you
 
 6 may have, to any health-care institution at which you are
 
 7 receiving care, and to any health-care agents you have named.
 
 8 You should talk to the person you have named as agent to make
 
 9 sure that he or she understands your wishes and is willing to
 
10 take the responsibility.
 
11      You have the right to revoke this advance health-care
 
12 directive or replace this form at any time.
 
13                              PART 1
 
14        DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
 
15 DESIGNATION OF AGENT: I designate the following individual as my
 
16 agent to make health-care decisions for me:
 
17 ____________________________________________________________
 
18 (name of individual you choose as agent)
 
19 ___________________________________________________________
 
20 (address)(city) (state) (zip code)
 
21 ___________________________________________________________
 
22 (home phone) (work phone)
 
23      OPTIONAL: If I revoke my agent's authority or if my agent is
 

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

 
 1 not willing, able, or reasonably available to make a health-care
 
 2 decision for me, I designate as my first alternate agent:
 
 3 ___________________________________________________________
 
 4 (name of individual you choose as first alternate agent)
 
 5 ___________________________________________________________
 
 6 (address) (city) (state) (zip code)
 
 7 ___________________________________________________________
 
 8 (home phone) (work phone)
 
 9      OPTIONAL: If I revoke the authority of my agent and first
 
10 alternate agent or if neither is willing, able, or reasonably
 
11 available to make a health-care decision for me, I designate as
 
12 my second alternate agent:
 
13 ___________________________________________________________
 
14 (name of individual you choose as second alternate agent)
 
15 ___________________________________________________________
 
16 (address) (city) (state) (zip code)
 
17 ___________________________________________________________
 
18           (home phone) (work phone)
 
19      (2)  AGENT'S AUTHORITY: My agent is authorized to make all
 
20 health-care decisions for me, including decisions to provide,
 
21 withhold, or withdraw artificial nutrition and hydration, and all
 
22 other forms of health care to keep me alive, except as I state
 
23 here:
 

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

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

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

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

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

 
 1 I mark the following box.  If I mark this box [   ], artificial
 
 2 nutrition and hydration must be provided regardless of my
 
 3 condition and regardless of the choice I have made in paragraph
 
 4 (6).
 
 5      (8)  RELIEF FROM PAIN:  If I mark this box [  ], I direct
 
 6 that treatment to alleviate pain or discomfort should be provided
 
 7 to me even if it hastens my death.
 
 8      (9)  OTHER WISHES: (If you do not agree with any of the
 
 9 optional choices above and wish to write your own, or if you wish
 
10 to add to the instructions you have given above, you may do so
 
11 here.)  I direct that:
 
12 ____________________________________________________________
 
13 ____________________________________________________________
 
14                (Add additional sheets if needed.)
 
15                              PART 3
 
16                    DONATION OF ORGANS AT DEATH
 
17                            (OPTIONAL)
 
18      (10) Upon my death (mark applicable box)
 
19      [ ]  (a)  I give any needed organs, tissues, or parts,
 
20           OR
 
21      [ ]  (b)  I give the following organs, tissues, or parts
 
22           only
 
23           __________________________________________________
 

 
Page 25                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

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

 
Page 26                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

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

 
Page 27                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

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

 
Page 28                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

 
 1 document, and that I am not a health-care provider, nor an
 
 2 employee of a health-care provider or facility.
 
 3 _____________________________ _____________________________
 
 4 (date)                        (signature of witness)
 
 5 _____________________________ _____________________________
 
 6 (address)                     (printed name of witness)
 
 7 _____________________________ _____________________________
 
 8 (city)                        (state)
 
 9                         ALTERNATIVE NO. 2
 
10 State of Hawaii
 
11 County of ________________
 
12 On this _______ day of __________, in the year ____, before me,
 
13 _______________ (insert name of notary public) appeared
 
14 _______________, personally known to me (or proved to me on the
 
15 basis of satisfactory evidence) to be the person whose name is
 
16 subscribed to this instrument, and acknowledged that he or she
 
17 executed it.
 
18 Notary Seal
 
19 ____________________________
 
20 (Signature of Notary Public)"
 
21      SECTION 2.  Section 551D-2.5, Hawaii Revised Statutes, is
 
22 amended to read as follows:
 
23      "[[]551D-2.5[]]  Durable power of attorney for health care
 

 


 

Page 29                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

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

 
Page 30                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

 
 1      (c)  A durable power of attorney for health care decisions
 
 2 shall be presumed not to grant authority to decide that the
 
 3 principal's life should not be prolonged through surgery,
 
 4 resuscitation, life sustaining medicine or procedures or the
 
 5 provision of nutrition or hydration, unless such authority is
 
 6 explicitly stated.
 
 7      (d)  A durable power of attorney for health care decisions
 
 8 shall only be effective during the period of incapacity of the
 
 9 principal as determined by a licensed physician.
 
10      (e)  No person shall serve as both the treating physician
 
11 and attorney-in-fact for any principal for matters relating to
 
12 health care decisions.
 
13      (f)  A durable power of attorney for health care decisions
 
14 executed prior to June 12, 1992, that substantially complies with
 
15 the requirements of this chapter shall be considered valid
 
16 provided that the powers relating to the health care decisions
 
17 granted in the power of attorney have not been previously revoked
 
18 by the principal or otherwise terminated.]"
 
19      SECTION 3.  Section 551D-2.6, Hawaii Revised Statutes, is
 
20 repealed.
 
21      ["[551D-2.6]  Durable power of attorney sample form.  The
 
22 following sample form may be copied and used by filling in the
 
23 blanks or may be changed to add more individualized instructions;
 

 
Page 31                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

 
 1 or an entirely different format may be used to provide health
 
 2 care instructions.
 
 3        DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
 
 4 A.   Statement of Principal
 
 5      Declaration made this ________ day of ___________ (month,
 
 6 year).  I, _________________, being of sound mind, and
 
 7 understanding that I have the right to request that my life be
 
 8 prolonged to the greatest extent possible, willfully and
 
 9 voluntarily make known my desire that my attorney-in-fact
 
10 ("agent") shall be authorized as set forth below and do hereby
 
11 declare:
 
12      My instructions shall prevail even if they create a conflict
 
13 with the desires of my relatives, hospital policies, or the
 
14 principles of those providing my care.
 
15                             CHECKLIST
 
16      I have considered the extent of the authority I want my
 
17 agent to have with respect to health care decisions if I should
 
18 develop a terminal condition or a permanent loss of the ability
 
19 to communicate concerning medical treatment decisions with no
 
20 reasonable chance of regaining this ability.  I want my agent to
 
21 request care, including medicine and procedures, for the purpose
 
22 of providing comfort and pain relief.  I have also considered
 
23 whether my agent should have the authority to decide whether or
 

 
Page 32                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

 
 1 not my life should be prolonged, and have selected one of the
 
 2 following provisions by putting a mark in the space provided:
 
 3      ( )  My agent is authorized to decide whether my life should
 
 4           be prolonged through surgery, resuscitation, life
 
 5           sustaining medicine or procedures, and tube or other
 
 6           artificial feeding or provisions of fluids by a tube.
 
 7      ( )  My agent is authorized to decide whether my life should
 
 8           be prolonged through tube or other artificial feeding
 
 9           or provisions of fluids by a tube.
 
10      If neither provision is selected, it shall be presumed that
 
11 my agent shall have only the power to request care, including
 
12 medicine and procedures, for the purpose of providing comfort and
 
13 pain relief.
 
14      This durable power of attorney shall control in all
 
15 circumstances.  I understand that my physician may not act as my
 
16 agent under this durable power of attorney.
 
17      I understand the full meaning of this durable power of
 
18 attorney and I am emotionally and mentally competent to make this
 
19 declaration.
 
20                                      Signed _____________________
 
21                                      Address ____________________
 
22 B.  Statement of Witnesses
 
23      I am at least eighteen years of age and -not related to the
 

 
Page 33                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

 
 1      principal by blood, marriage, or adoption; and
 
 2      -not currently the attending physician, an employee of the
 
 3      attending physician, or an employee of the health care
 
 4      facility in which the principal is a patient.
 
 5      The principal is personally known to me and I believe the
 
 6 principal to be of sound mind.
 
 7                                    Witness ______________________
 
 8                                    Address ______________________
 
 9                                    Witness ______________________
 
10                                    Address ______________________
 
11 C.  Statement of Agent
 
12      I am at least eighteen years of age, I accept the
 
13 appointment under this durable power of attorney as the attorney-
 
14 in-fact ("agent") of the principal, and I am not the physician of
 
15 the principal.  The principal is personally known to me and I
 
16 believe the principal to be of sound mind.
 
17                                      Agent ______________________
 
18                                     Address _____________________
 
19 D.  Notarization.
 
20      Subscribed, sworn to and acknowledged before me by
 
21 _________________, the principal, and subscribed and sworn to
 
22 before me by ______________________ and __________, witnesses,
 
23 this day of ____________, 19 ____.
 

 
Page 34                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 2
                                                        

 
 1 (SEAL)
 
 2                              Signed _____________________________
 
 3                                     _____________________________
 
 4                                  (Official capacity of officer)"]
 
 5      SECTION 4.  Chapter 327D, Hawaii Revised Statutes, is
 
 6 repealed.
 
 7      SECTION 5.  If any provision of this chapter or its
 
 8 application to any person or circumstance is held invalid, the
 
 9 invalidity does not affect other provisions or applications of
 
10 this chapter which can be given effect without the invalid
 
11 provision or application, and to this end the provisions of this
 
12 chapter are severable.
 
13      SECTION 6.  Statutory material to be repealed is bracketed.
 
14 New statutory material is underscored.
 
15      SECTION 7.  This Act shall take effect upon its approval.