H 3148 Session 109 (1991-1992)
H 3148 General Bill, By H.H. Keyserling, P.B. Harris, J.H. Hodges, K.G. Kempe,
S.G. Manly, I.K. Rudnick, D.C. Waldrop, L.S. Whipper and J.B. Wilder
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
62-5-504 so as to provide for health care powers of attorney, to define terms
used in the Section, to explain the relationship between a health care power
of attorney and a durable power of attorney, to provide that the Adult Health
Consent Act applies to decisions made pursuant to a health care power of
attorney, to provide standards for determining mental incompetence, to provide
execution requirements, including witness qualifications, and a form for a
health care power of attorney, to provide specific powers for a health care
agent in addition to those provided in the health care power of attorney, to
provide that a health care agent is not liable for health care costs incurred
on behalf of a principal and is entitled to reimbursement but not compensation
for services performed under a health care power of attorney, to provide that
life-sustaining procedures may not be withheld pursuant to a durable power of
attorney if the principal is pregnant, to provide that health care providers
must follow directives of a health care agent under a power of attorney and
that the agent must give directives in accordance with the principal's
directives in the power of attorney, to provide a good faith defense to those
who make and those who rely on decisions made pursuant to a health care power
of attorney, to provide that a principal may appoint successor agents and that
if no agent is available, decisions must be made by a surrogate under the
Adult Health Care Consent Act, in accordance with the directions in the power
of attorney, to provide revocation procedures, to provide that execution and
effectuation of a health care power of attorney does not constitute suicide,
to provide that a health care power of attorney must not be required as a
condition for insurance, medical treatment, or admission to a health care
facility, to provide that this Section does not authorize mercy killing, to
provide that the absence of a health care power of attorney does not give rise
to any presumption regarding life-sustaining procedures, and to provide
penalties for violations; to amend Section 44-43-330, relating to anatomical
gifts, so as to reorder the priority of individuals who may consent to an
anatomical gift for a decedent by adding an agent under a health care power of
attorney; to amend Section 44-66-20, relating to definitions in the Adult
Health Care Consent Act, so as to revise the definition of health care; to
amend Section 44-66-30, relating to persons authorized to make health care
decisions, so as to require that those decisions must be based on the
patient's wishes, if known, and to allow the authorized person to either
consent or withhold health care; and to amend Section 62-5-501, relating to
the execution of a power of attorney not affected by physical disability, or
mental incompetence, so as to provide how physical disability or mental
incompetence may be determined.
12/27/90 House Prefiled
12/27/90 House Referred to Committee on Judiciary
01/08/91 House Introduced and read first time HJ-80
01/08/91 House Referred to Committee on Judiciary HJ-81
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 62-5-504 SO AS TO PROVIDE FOR
HEALTH CARE POWERS OF ATTORNEY, TO DEFINE TERMS
USED IN THE SECTION, TO EXPLAIN THE RELATIONSHIP
BETWEEN A HEALTH CARE POWER OF ATTORNEY AND A
DURABLE POWER OF ATTORNEY, TO PROVIDE THAT THE
ADULT HEALTH CONSENT ACT APPLIES TO DECISIONS MADE
PURSUANT TO A HEALTH CARE POWER OF ATTORNEY, TO
PROVIDE STANDARDS FOR DETERMINING MENTAL
INCOMPETENCE, TO PROVIDE EXECUTION REQUIREMENTS,
INCLUDING WITNESS QUALIFICATIONS, AND A FORM FOR A
HEALTH CARE POWER OF ATTORNEY, TO PROVIDE SPECIFIC
POWERS FOR A HEALTH CARE AGENT IN ADDITION TO
THOSE PROVIDED IN THE HEALTH CARE POWER OF
ATTORNEY, TO PROVIDE THAT A HEALTH CARE AGENT IS
NOT LIABLE FOR HEALTH CARE COSTS INCURRED ON
BEHALF OF A PRINCIPAL AND IS ENTITLED TO
REIMBURSEMENT BUT NOT COMPENSATION FOR SERVICES
PERFORMED UNDER A HEALTH CARE POWER OF ATTORNEY,
TO PROVIDE THAT LIFE-SUSTAINING PROCEDURES MAY NOT
BE WITHHELD PURSUANT TO A DURABLE POWER OF
ATTORNEY IF THE PRINCIPAL IS PREGNANT, TO PROVIDE
THAT HEALTH CARE PROVIDERS MUST FOLLOW DIRECTIVES
OF A HEALTH CARE AGENT UNDER A POWER OF ATTORNEY
AND THAT THE AGENT MUST GIVE DIRECTIVES IN
ACCORDANCE WITH THE PRINCIPAL'S DIRECTIVES IN THE
POWER OF ATTORNEY, TO PROVIDE A GOOD FAITH DEFENSE
TO THOSE WHO MAKE AND THOSE WHO RELY ON DECISIONS
MADE PURSUANT TO A HEALTH CARE POWER OF ATTORNEY,
TO PROVIDE THAT A PRINCIPAL MAY APPOINT SUCCESSOR
AGENTS AND THAT IF NO AGENT IS AVAILABLE, DECISIONS
MUST BE MADE BY A SURROGATE UNDER THE ADULT
HEALTH CARE CONSENT ACT, IN ACCORDANCE WITH THE
DIRECTIONS IN THE POWER OF ATTORNEY, TO PROVIDE
REVOCATION PROCEDURES, TO PROVIDE THAT EXECUTION
AND EFFECTUATION OF A HEALTH CARE POWER OF
ATTORNEY DOES NOT CONSTITUTE SUICIDE, TO PROVIDE
THAT A HEALTH CARE POWER OF ATTORNEY MUST NOT BE
REQUIRED AS A CONDITION FOR INSURANCE, MEDICAL
TREATMENT, OR ADMISSION TO A HEALTH CARE FACILITY,
TO PROVIDE THAT THIS SECTION DOES NOT AUTHORIZE
MERCY KILLING, TO PROVIDE THAT THE ABSENCE OF A
HEALTH CARE POWER OF ATTORNEY DOES NOT GIVE RISE
TO ANY PRESUMPTION REGARDING LIFE-SUSTAINING
PROCEDURES, AND TO PROVIDE PENALTIES FOR
VIOLATIONS; TO AMEND SECTION 44-43-330, RELATING TO
ANATOMICAL GIFTS, SO AS TO REORDER THE PRIORITY OF
INDIVIDUALS WHO MAY CONSENT TO AN ANATOMICAL GIFT
FOR A DECEDENT BY ADDING AN AGENT UNDER A HEALTH
CARE POWER OF ATTORNEY; TO AMEND SECTION 44-66-20,
RELATING TO DEFINITIONS IN THE ADULT HEALTH CARE
CONSENT ACT, SO AS TO REVISE THE DEFINITION OF
HEALTH CARE; TO AMEND SECTION 44-66-30, RELATING TO
PERSONS AUTHORIZED TO MAKE HEALTH CARE DECISIONS,
SO AS TO REQUIRE THAT THOSE DECISIONS MUST BE BASED
ON THE PATIENT'S WISHES, IF KNOWN, AND TO ALLOW THE
AUTHORIZED PERSON TO EITHER CONSENT OR WITHHOLD
HEALTH CARE; AND TO AMEND SECTION 62-5-501, RELATING
TO THE EXECUTION OF A POWER OF ATTORNEY NOT
AFFECTED BY PHYSICAL DISABILITY, OR MENTAL
INCOMPETENCE, SO AS TO PROVIDE HOW PHYSICAL
DISABILITY OR MENTAL INCOMPETENCE MAY BE
DETERMINED.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 62-5-504. (A) As used in this section:
(1) `Agent' or `health care agent' means an individual
designated in a health care power of attorney to make health care
decisions on behalf of a principal.
(2) `Declaration of a desire for a natural death' or `declaration'
means a document executed in accordance with the South Carolina
Death with Dignity Act or a similar document executed in accordance
with the law of another state.
(3) `Health care' means a procedure to diagnose or treat a
human disease, ailment, defect, abnormality, or complaint, whether of
physical or mental origin. It also includes the provision of intermediate
or skilled nursing care; services for the rehabilitation of injured,
disabled, or sick persons; and placement in or removal from a facility
that provides these forms of care.
(4) `Health care power of attorney' means a durable power of
attorney executed in accordance with this section.
(5) `Health care provider' means a person, health care facility,
organization, or corporation licensed, certified, or otherwise authorized
or permitted by the laws of this State to administer health care.
(6) `Life-sustaining procedure' means a medical procedure or
intervention which serves only to prolong the dying process.
(7) `Permanent unconsciousness' means a medical diagnosis,
consistent with accepted standards of medical practice, that a person is
in a persistent vegetative state or some other irreversible condition in
which the person has no neocortical functioning, but only involuntary
vegetative or primitive reflex functions controlled by the brain stem.
(8) `Nursing care provider' means a nursing care facility or an
employee of the facility.
(9) `Principal' means an individual who executes a health care
power of attorney. A principal must be eighteen years of age or older
and of sound mind.
(10) `Separated' means that the principal and his or her spouse are
separated pursuant to one of the following:
(a) entry of a pendente lite order in a divorce or separate
maintenance action;
(b) formal signing of a written property or marital
settlement agreement;
(c) entry of a permanent order of separate maintenance and
support or of a permanent order approving a property or marital
settlement agreement between the parties.
(B) (1) A health care power of attorney is a durable power of
attorney pursuant to Section 62-5-501. Sections that refer to a durable
power of attorney or judicial interpretations of the law relating to
durable powers of attorney apply to a health care power of attorney to
the extent that they are not inconsistent with this section.
(2) This section does not affect the right of a person to execute
a durable power of attorney relating to health care pursuant to other
provisions of law but which does not conform to the requirements of this
section. If a durable power of attorney for health care executed under
Section 62-5-501 or under the laws of another state does not conform to
the requirements of this section, the provisions of this section do not
apply to it. However, a court is not precluded from determining that the
law applicable to nonconforming durable powers of attorney for health
care is the same as the law set forth in this section for health care powers
of attorney.
(3) To the extent not inconsistent with this section, the
provisions of the Adult Health Care Consent Act apply to the making of
decisions by a health care agent and the implementation of those
decisions by health care providers.
(4) In determining the effectiveness of a health care power of
attorney, mental incompetence is to be determined according to the
standards and procedures for inability to consent under Section 44-66-20(6), except that certification of mental incompetence by the agent may
be substituted for certification by a second physician. If the certifying
physician states that the principal's mental incompetence precludes the
principal from making all health care decisions or all decisions
concerning certain categories of health care, and that the principal's
mental incompetence is permanent or of extended duration, no further
certification is necessary in regard to the stated categories of health care
decisions during the stated duration of mental incompetence unless the
agent or the attending physician believes the principal may have
regained capacity.
(C)(1) A health care power of attorney must:
(a) be substantially in the form set forth in subsection (D) of
this section;
(b) be dated and signed by the principal or in the principal's
name by another person in the principal's presence and by his direction;
(c) be signed by at least two persons, each of whom witnessed
either the signing of the health care power of attorney or the principal's
acknowledgment of his signature on the health care power of attorney.
Each witness must state in an affidavit as set forth in subsection (D) of
this section that, at the time of the execution of the health care power of
attorney, to the extent the witness has knowledge, the witness is not
related to the principal by blood, marriage, or adoption, either as a
spouse, lineal ancestor, descendant of the parents of the principal, or
spouse of any of them; not directly financially responsible for the
principal's medical care; not entitled to any portion of the principal's
estate upon his decease under a will of the principal then existing or as
an heir by intestate succession; not a beneficiary of a life insurance
policy of the principal; and not appointed as health care agent or
successor health care agent in the health care power of attorney; and that
no more than one witness is an employee of a health facility in which the
principal is a patient, no witness is the attending physician or an
employee of the attending physician, or no witness has a claim against
the principal's estate upon his decease;
(d) if the principal is a patient in a hospital or a resident
in a nursing care facility at the time the health care power of attorney is
executed, be witnessed by an ombudsman as designated by the State
Ombudsman, Office of the Governor, with the ombudsman acting as one
of the two witnesses and having the same qualifications as a witness as
provided in this subsection;
(e) state the name and address of the agent. A health care
agent must be an individual who is eighteen years of age or older and of
sound mind. A health care agent may not be a health care provider, or
an employee of a provider, with whom the principal has a provider-patient relationship at the time the health care power of attorney is
executed, or an employee of a nursing care facility in which the principal
resides, or a spouse of the health care provider or employee, unless the
health care provider, employee, or spouse is a relative of the principal.
(2) The validity of a health care power of attorney is not
affected by the principal's failure to initial any of the choices provided
in Section 4, 6, or 7 of the Health Care Power of Attorney form or to
name successor agents.
(D) A health care power of attorney must be substantially in the
following form:
`INFORMATION ABOUT THIS
DOCUMENT
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE
SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE
IMPORTANT FACTS:
1. THIS DOCUMENT GIVES THE PERSON YOU NAME AS
YOUR AGENT THE POWER TO MAKE HEALTH CARE
DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISION
FOR YOURSELF. THIS POWER INCLUDES THE POWER TO
MAKE DECISIONS ABOUT LIFE-SUSTAINING TREATMENT.
UNLESS YOU STATE OTHERWISE, YOUR AGENT WILL HAVE
THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR
HEALTH CARE AS YOU WOULD HAVE.
2. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR
STATEMENTS OF YOUR DESIRES THAT YOU INCLUDE IN THIS
DOCUMENT. YOU MAY STATE IN THIS DOCUMENT ANY
TREATMENT YOU DO NOT DESIRE OR TREATMENT YOU
WANT TO BE SURE YOU RECEIVE. YOUR AGENT WILL BE
OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN
MAKING DECISIONS ON YOUR BEHALF. YOU MAY ATTACH
ADDITIONAL PAGES IF YOU NEED MORE SPACE TO
COMPLETE THE STATEMENT.
3. AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE
THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR
YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO.
AFTER YOU HAVE SIGNED THIS DOCUMENT, NO TREATMENT
MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION
IF YOU ARE MENTALLY COMPETENT TO MAKE THAT
DECISION.
4. YOU HAVE THE RIGHT TO REVOKE THIS DOCUMENT,
AND TERMINATE YOUR AGENT'S AUTHORITY, BY
INFORMING EITHER YOUR AGENT OR YOUR HEALTH CARE
PROVIDER ORALLY OR IN WRITING.
5. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU
DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL
WORKER, LAWYER, OR OTHER PERSON TO EXPLAIN IT TO
YOU.
6. THIS POWER OF ATTORNEY WILL NOT BE VALID
UNLESS TWO PERSONS SIGN AS WITNESSES. EACH OF THESE
PERSONS MUST EITHER WITNESS YOUR SIGNING OF THE
POWER OF ATTORNEY OR WITNESS YOUR
ACKNOWLEDGMENT THAT THE SIGNATURE ON THE POWER
OF ATTORNEY IS YOURS.
THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:
A. YOUR SPOUSE; YOUR CHILDREN, GRANDCHILDREN,
AND OTHER LINEAL DESCENDANTS; YOUR PARENTS,
GRANDPARENTS, AND OTHER LINEAL ANCESTORS; YOUR
SIBLINGS AND THEIR LINEAL DESCENDANTS; OR A SPOUSE
OF ANY OF THESE PERSONS.
B. A PERSON WHO IS DIRECTLY FINANCIALLY
RESPONSIBLE FOR YOUR MEDICAL CARE.
C. A PERSON WHO IS NAMED IN YOUR WILL, OR, IF YOU
HAVE NO WILL, WHO WOULD INHERIT YOUR PROPERTY BY
INTERSTATE SUCCESSION.
D. A BENEFICIARY OF A LIFE INSURANCE POLICY ON
YOUR LIFE.
E. THE PERSONS NAMED IN THE HEALTH CARE POWER OF
ATTORNEY AS YOUR AGENT OR SUCCESSOR AGENT.
F. YOUR PHYSICIAN OR AN EMPLOYEE OF YOUR
PHYSICIAN.
G. ANY PERSON WHO WOULD HAVE A CLAIM AGAINST
ANY PORTION OF YOUR ESTATE (PERSONS TO WHOM YOU
OWE MONEY).
IF YOU ARE A PATIENT IN A HEALTH FACILITY, NO MORE
THAN ONE WITNESS MAY BE AN EMPLOYEE OF THAT
FACILITY. IF YOU ARE A PATIENT IN A HOSPITAL OR A
RESIDENT OF A NURSING CARE FACILITY, ONE WITNESS
MUST BE THE STATE OMBUDSMAN OR HIS DESIGNEE.
7. YOUR AGENT MUST BE A PERSON WHO IS 18 YEARS
OLD OR OLDER AND OF SOUND MIND. IT MAY NOT BE YOUR
DOCTOR OR ANY OTHER HEALTH CARE PROVIDER THAT IS
NOW PROVIDING YOU WITH TREATMENT; OR AN EMPLOYEE
OF YOUR DOCTOR OR PROVIDER; OR A SPOUSE OF THE
DOCTOR, PROVIDER, OR EMPLOYEE; UNLESS THE PERSON IS
A RELATIVE OF YOURS.
8. YOU SHOULD INFORM THE PERSON THAT YOU WANT
HIM OR HER TO BE YOUR HEALTH CARE AGENT. YOU
SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND
YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. IF YOU
ARE IN A HEALTH CARE FACILITY OR A NURSING CARE
FACILITY, A COPY OF THIS DOCUMENT SHOULD BE
INCLUDED IN YOUR MEDICAL RECORD.
HEALTH CARE POWER OF ATTORNEY
(S.C. STATUTORY FORM)
1. DESIGNATION OF HEALTH CARE AGENT
I, ___________________________, hereby appoint:
(Principal)
_________________________________________________
(Agent)
__________________________________________________
(Address)
__________________________________________________
Home Telephone: ___________ Work Telephone:_______
as my agent to make health care decisions for me as authorized in
this document.
2. EFFECTIVE DATE AND DURABILITY.
By this document I intend to create a durable power of attorney effective
upon, and only during, any period of mental incompetence.
3. AGENT'S POWERS.
I grant to my agent full authority to make decisions for me regarding my
health care. In exercising this authority, my agent shall follow my
desires as stated in this document or otherwise expressed by me or
known to my agent. In making any decision, my agent shall attempt to
discuss the proposed decision with me to determine my desires if I am
able to communicate in any way. If my agent cannot determine the
choice I would want made, then my agent shall make a choice for me
based upon what my agent believes to be in my best interests. My
agent's authority to interpret my desires is intended to be as broad as
possible, except for any limitations I may state below.
Accordingly, unless specifically limited by Section E, below, my
agent is authorized as follows:
A. To consent, refuse, or withdraw consent to any and all types of
medical care, treatment, surgical procedures, diagnostic procedures,
medication, and the use of mechanical or other procedures that affect
any bodily function, including, but not limited to, artificial respiration,
nutritional support and hydration, and cardiopulmonary resuscitation;
B. To authorize, or refuse to authorize, any medication or procedure
intended to relieve pain, even though such use may lead to physical
damage, addiction, or hasten the moment of, but not intentionally cause,
my death;
C. To authorize my admission to or discharge, even against medical
advice, from any hospital, nursing care facility, or similar facility or
service;
D. To take any other action necessary to making, documenting, and
assuring implementation of decisions concerning my health care,
including, but not limited to, granting any waiver or release from
liability required by any hospital, physician, nursing care provider, or
other health care provider; signing any documents relating to refusals of
treatment or the leaving of a facility against medical advice, and
pursuing any legal action in my name, and at the expense of my estate
to force compliance with my wishes as determined by my agent, or to
seek actual or punitive damages for the failure to comply.
E. The powers granted above do not include the following powers or are
subject to the following rules or limitations:
___________________________________________________________________________________________________________________________________________________
4. ORGAN DONATION (INITIAL ONLY ONE)
My agent may ___; may not ___ consent to the donation of all or any of
my tissue or organs for purposes of transplantation.
5. EFFECT ON DECLARATION OF A DESIRE FOR A
NATURAL DEATH (LIVING WILL)
I understand that if I have a valid Declaration of a Desire for a
Natural Death, the instructions contained in the Declaration will be
given effect in any situation to which they are applicable. My agent will
have authority to make decisions concerning my health care only in
situations to which the Declaration does not apply.
6. STATEMENT OF DESIRES AND SPECIAL
PROVISIONS.
With respect to any Life-Sustaining Treatment, I direct the following:
(INITIAL ONLY ONE OF THE FOLLOWING 4 PARAGRAPHS)
(1) ____ GRANT OF DISCRETION TO AGENT. I do not want my
life to be prolonged nor do I want life-sustaining treatment to be
provided or continued if my Agent believes the burdens of the treatment
outweigh the expected benefits. I want my agent to consider the relief
of suffering, my personal beliefs, the expense involved and the quality
as well as the possible extension of my life in making decisions
concerning life-sustaining treatment.
OR
(2) ______ DIRECTIVE TO WITHHOLD OR WITHDRAW
TREATMENT. I do not want my life to be prolonged and I do not want
life-sustaining treatment:
a. if I have a condition that is incurable or irreversible and, without
the administration of life-sustaining procedures, expected to result in
death within a relatively short period of time; or
b. if I am in a state of permanent unconsciousness.
OR
(3) _____ DIRECTIVE FOR MAXIMUM TREATMENT. I want my
life to be prolonged to the greatest extent possible, within the standards
of accepted medical practice, without regard to my condition, the
chances I have for recovery, or the cost of the procedures.
OR
(4) ____ DIRECTIVE IN MY OWN WORDS:
___________________________________________________________________________________________________________________________________________________
7. STATEMENT OF DESIRES REGARDING TUBE FEEDING
With respect to Nutrition and Hydration provided by means of a
nasogastric tube or tube into the stomach, intestines, or veins, I wish to
make clear that (INITIAL ONLY ONE)
____ I do not want to receive these forms of artificial nutrition
and hydration, and they may be withheld or withdrawn under the
conditions given above.
OR
____ I do want to receive these forms of artificial nutrition and
hydration.
8. SUCCESSORS.
If an Agent named by me dies, becomes legally disabled, resigns, refuses
to act, becomes unavailable, or if an Agent who is my spouse is divorced
or separated from me, I name the following as successors to my Agent,
each to act alone and successively, in the order named.
A. First Alternate Agent: _______________________
Address: _____________________________________
Telephone: ___________________________________
B. Second Alternate Agent: ______________________
Address: _____________________________________
Telephone: ___________________________________
9. ADMINISTRATIVE PROVISIONS.
A. I revoke any prior Health Care Power of Attorney and any
provisions relating to health care of any other prior power of attorney.
B. This power of attorney is intended to be valid in any jurisdiction in
which it is presented.
10. UNAVAILABILITY OF AGENT
If at any relevant time the Agent or Successor Agents named herein are
unable or unwilling to make decisions concerning my health care, and
those decisions are to be made by a guardian, by the Probate Court, or
by a surrogate pursuant to the Adult Health Care Consent Act, it is my
intention that the guardian, Probate Court, or surrogate make those
decisions in accordance with my directions as stated in this document.
BY SIGNING HERE I INDICATE THAT I UNDERSTAND THE
CONTENTS OF THIS DOCUMENT AND THE EFFECT OF THIS
GRANT OF POWERS TO MY AGENT.
I sign my name to this Health Care Power of Attorney on this ___ day
of ________________,
19__. My current home address is:
__________________________________________________________________________________________________
Signature: ______________________________________
Name: ___________________________________________
WITNESS STATEMENT
I declare, on the basis of information and belief, that the person who
signed or acknowledged this document (the principal) is personally
known to me, that he/she signed or acknowledged this Health Care
Power of Attorney in my presence, and that he/she appears to be of
sound mind and under no duress, fraud, or undue influence. I am not
related to the principal by blood, marriage, or adoption, either as a
spouse, a lineal ancestor, descendant of the parents of the principal, or
spouse of any of them. I am not directly financially responsible for the
principal's medical care. I am not entitled to any portion of the
principal's estate upon his decease, whether under any will or as an heir
by intestate succession, nor am I the beneficiary of an insurance policy
on the principal's life, nor do I have a claim against the principal's estate
as of this time. I am not the principal's attending physician, nor an
employee of the attending physician. No more than one witness is an
employee of a health facility in which the principal is a patient. If the
principal is a patient in a hospital or a resident in a nursing care facility,
at least one witness is an ombudsman designated by the State
Ombudsman, Office of the Governor. I am not appointed as Health Care
Agent or Successor Health Care Agent by this document.
Witness No. 1
Signature: __________________ Date: _______________
Print Name: _________________ Telephone: __________
Residence Address: _______________________________
___________________________________________________
Witness No. 2
Signature: __________________ Date: _______________
Print Name: _________________ Telephone: __________
Residence Address: _______________________________
_________________________________________________'.
(E) A health care agent has, in addition to the powers set forth in
the health care power of attorney, the following specific powers:
(1) to have access to the principal's medical records and
information to the same extent that the principal would have access,
including the right to disclose the contents to others;
(2) to contract on the principal's behalf for placement in a
health care or nursing care facility or for health care related services,
without the agent incurring personal financial liability for the contract;
(3) to hire and fire medical, social service, and other support
personnel responsible for the principal's care.
(F)(1) The agent is not entitled to compensation for services
performed under the health care power of attorney, but the agent is
entitled to reimbursement for all reasonable expenses incurred as a result
of carrying out the health care power of attorney or the authority granted
by this section.
(2) The agent's consent to health care or to the provision of
services to the principal does not cause the agent to be liable for the
costs of the care or services.
(G) If a principal has been diagnosed as pregnant, life-sustaining
procedures may not be withheld or withdrawn pursuant to the health care
power of attorney during the course of the principal's pregnancy. This
subsection does not otherwise affect the agent's authority to make
decisions concerning the principal's obstetrical and other health care
during the course of the pregnancy.
(H) A health care provider or nursing care provider having
knowledge of the principal's health care power of attorney has a duty to
follow directives of the agent that are consistent with the health care
power of attorney to the same extent as if they were given by the
principal. If it is uncertain whether a directive is consistent with the
health care power of attorney, the health care provider, nursing care
provider, agent, or other interested person may petition the probate court
for an order determining the authority of the agent to give the directive.
(I) An agent acting pursuant to a health care power of attorney shall
make decisions concerning the principal's health care in accordance with
the principal's directives in the health care power of attorney and with
any other statements of intent by the principal that are known to the
agent and are not inconsistent with the directives in the health care
power of attorney.
(J)(1) A person who relies in good faith upon a person's
representation that he is the person named as agent in a health care
power of attorney is not subject to civil or criminal liability or
disciplinary action for recognizing the agent's authority.
(2) A health care provider or nursing care provider who in
good faith relies on a health care decision made by an agent or successor
agent is not subject to civil or criminal liability or disciplinary action on
account of relying on the decision.
(3) An agent who in good faith makes a health care decision
pursuant to a health care power of attorney is not subject to civil or
criminal liability on account of the substance of the decision.
(K)(1) The principal may appoint one or more successor agents
in the health care power of attorney in the event an agent dies, becomes
legally disabled, resigns, refuses to act, is unavailable, or, if the agent is
the spouse of the principal, becomes divorced or separated from the
principal. A successor agent will succeed to all duties and powers given
to the agent in the health care power of attorney.
(2) If no agent or successor agent is available, willing, and
qualified to make a decision concerning the principal's health care, the
decision must be made according to the provisions of and by the person
authorized by the Adult Health Care Consent Act.
(3) All directives, statements of personal values, or statements
of intent made by the principal in the health care power of attorney must
be treated as exercises of the principal's right to direct the course of his
health care. Decisions concerning the principal's health care made by a
guardian, by the probate court, or by a surrogate pursuant to the Adult
Health Care Consent Act, must be made in accordance with the
directions stated in the health care power of attorney.
(L)(1) A health care power of attorney may be revoked in the
following ways:
(a) by a writing, an oral statement, or any other act
constituting notification by the principal to the agent or to a health care
provider responsible for the principal's care of the principal's specific
intent to revoke the health care power of attorney; or
(b) by the principal's execution of a subsequent health care
power of attorney or the principal's execution of a subsequent durable
power of attorney under Section 62-5-501 if the durable power of
attorney states an intention that the health care power of attorney be
revoked or if the durable power of attorney is inconsistent with the
health care power of attorney.
(2) A health care provider who is informed of or provided with
a revocation of a health care power of attorney immediately must record
the revocation in the principal's medical record and notify the agent, the
attending physician, and all other health care providers or nursing care
providers who are responsible for the principal's care.
(M) The execution and effectuation of a health care power of
attorney does not constitute suicide for any purpose.
(N) No person may be required to sign a health care power of
attorney in accordance with this section as a condition for coverage
under an insurance contract or for receiving medical treatment or as a
condition of admission to a health care or nursing care facility.
(O) Nothing in this section may be construed to authorize or
approve mercy killing or to permit any affirmative or deliberate act or
omission to end life other than to permit the natural process of dying.
(P) The absence of a health care power of attorney by an adult
patient does not give rise to a presumption of his intent to consent to or
refuse death prolonging procedures. Nothing in this section impairs
other legal rights or legal responsibilities which a person may have to
effect the provision or the withholding or withdrawal of life-sustaining
procedures in a lawful manner.
(Q) (1) If a person coerces or fraudulently induces another
person to execute a health care power of attorney, falsifies or forges a
health care power of attorney, or wilfully conceals, cancels, obliterates,
or destroys a revocation of a health care power of attorney, and the
principal dies as a result of the withdrawal or withholding of treatment
pursuant to the health care power of attorney, that person is subject to
prosecution in accordance with the criminal laws of this State.
(2) Nothing in this section prohibits a person from informing
another person of the existence of this section, delivering to another
person a copy of this section or a form for a health care power of
attorney, or counseling another person in good faith concerning the
execution of a health care power of attorney.
(3) If a person wilfully conceals, cancels, defaces, obliterates,
or damages a health care power of attorney without the principal's
consent, or falsifies or forges a revocation of a health care power of
attorney, or otherwise prevents the implementation of the principal's
wishes as stated in a health care power of attorney, that person breaches
a duty owed to the principal and is responsible for payment of any
expenses or other damages incurred as a result of the wrongful
act."
SECTION 2. Section 44-43-330(b) of the 1976 Code is amended to
read:
"(b) Any of the following persons, in order of priority
stated, when persons in prior classes are not available at the time of
death, and in the absence of actual notice of contrary indications by the
decedent, or actual notice of opposition by a member of the same
or a prior class, may give all or any part of the decedent's body for any
purposes specified in Section 44-43-340:
(1) a health care agent or other attorney in fact authorized to
make such gifts by a health care power of attorney or by a durable power
of attorney executed pursuant to law;
(1)(2) the spouse,;
(2)(3) an adult son or daughter,;
(3)(4) either parent,;
(4)(5) an adult brother or sister,;
(5)(6) a guardian of the person of the decedent at
the time of his death,;
(6)(7) any other person authorized or under
obligation to dispose of the body."
SECTION 3. Section 44-66-20(1) of the 1976 Code, as added by Act
472 of 1990, is amended to read:
"(1) `Health care' means a procedure to diagnose or treat a
human disease, ailment, defect, abnormality, or complaint, whether of
physical or mental origin. It also includes the provision of
intermediate or skilled nursing care; services for the rehabilitation of
injured, disabled, or sick persons; and the placement in or removal from
a facility that provides these forms of care."
SECTION 4. Section 44-66-30 of the 1976 Code, as added by Act 472
of 1990, is amended by adding:
"(F) A person authorized to make health care decisions
under subsection (A) of this section must base those decisions on the
patient's wishes to the extent that the patient's wishes can be determined.
Where the patient's wishes cannot be determined, the person must base
the decision on the patient's best interest.
(G) A person authorized to make health care decisions under
subsection (A) of this section either may consent or withhold consent to
health care on behalf of the patient."
SECTION 5. Section 62-5-501(A) of the 1976 Code, as last amended by
Act 521 of 1990, is further amended to read:
"(A) Whenever a principal designates another his attorney
in fact by a power of attorney in writing and the writing contains (1) the
words `This power of attorney is not affected by physical disability or
mental incompetence of the principal which renders the principal
incapable of managing his own estate', (2) the words `This power of
attorney becomes effective upon the physical disability or mental
incompetence of the principal', or (3) similar words showing the intent
of the principal that the authority conferred is exercisable
notwithstanding his physical disability or mental incompetence or either
physical disability or mental incompetence, the authority of the attorney
in fact is exercisable by him as provided in the power on behalf of the
principal notwithstanding later physical disability or mental
incompetence of the principal or later uncertainty as to whether the
principal is dead or alive. The power may define `physical
disability' or `mental incompetence' and may set forth the procedures for
determining whether the principal is physically disabled or mentally
incompetent. If no definition of mental incompetence or procedures for
determining mental incompetence are set forth, and the authority of the
attorney in fact relates solely to health care, mental incompetence is to
be determined according to the standards and procedures for inability to
consent under Section 44-66-20(6) of the Adult Health Care Consent
Act. The authority of the attorney in fact to act on behalf of the
principal must be set forth in the power and may relate to any act, power,
duty, right, or obligation which the principal has or may acquire relating
to the principal or any matter, transaction, or property, including the
power to consent or withhold consent on behalf of the principal to health
care. The attorney in fact has a fiduciary relationship with the principal
and is accountable and responsible as a fiduciary. All acts done by the
attorney in fact pursuant to the power during a period of physical
disability or mental incompetence or uncertainty as to whether the
principal is dead or alive have the same effect and inure to the benefit of
and bind the principal or his heirs, devisees, legatees, and personal
representative as if the principal were alice, mentally competent, and not
disabled physically."
SECTION 6. Section 62-5-501 of the 1976 Code, as last amended by
Act 521 of 1990, is further amended by adding:
"(E) A properly executed durable power of attorney that
authorizes an attorney in fact to make health care decisions or other
decisions regarding the principal is valid whether or not it was executed
after May 14, 1990."
SECTION 7. This act takes effect upon approval by the Governor.
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