Current Status Introducing Body:Senate Bill Number:541 Ratification Number:340 Act Number:306 Primary Sponsor:Lourie Type of Legislation:GB Subject:Health care powers of attorney Date Bill Passed both Bodies:Mar 25, 1992 Computer Document Number:BR1/1069.AC Governor's Action:S Date of Governor's Action:Apr 08, 1992 Introduced Date:Jan 23, 1991 Date of Last Amendment:Mar 18, 1992 Last History Body:------ Last History Date:Apr 08, 1992 Last History Type:Act No. 306 Scope of Legislation:Statewide All Sponsors:Lourie Giese Passailaigue Bryan Hayes Long Type of Legislation:General Bill
Bill Body Date Action Description CMN
---- ------ ------------ ------------------------------ ---
541 ------ Apr 08, 1992 Act No. 306
541 ------ Apr 08, 1992 Signed by Governor
541 ------ Apr 02, 1992 Ratified R 340
541 Senate Mar 25, 1992 Concurred in House amendment,
enrolled for ratification
541 House Mar 24, 1992 Read third time, returned
with amendment
541 House Mar 19, 1992 Read second time
541 House Mar 18, 1992 Amended
541 House Mar 18, 1992 Debate adjourned until
Thursday, March 19, 1992
541 House Mar 05, 1992 Debate adjourned until
Tuesday, March 17, 1992
541 House Feb 26, 1992 Committee Report: Favorable 25
with amendment
541 House Mar 07, 1991 Introduced, read first time, 25
referred to Committee
541 Senate Mar 06, 1991 Read third time, sent to House
541 Senate Mar 05, 1991 Read second time, notice of
general amendments
541 Senate Feb 27, 1991 Committee Report: Favorable 11
541 Senate Jan 23, 1991 Introduced, read first time, 11
referred to Committee
View additional legislative information at the LPITS web site.
(A306, R340, S541)
AN ACT 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, TO EXPLAIN THE RELATIONSHIP BETWEEN A HEALTH CARE POWER OF ATTORNEY AND A DURABLE POWER OF ATTORNEY, TO PROVIDE THAT THE ADULT HEALTH CARE 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 OR IN A DECLARATION OF A DESIRE FOR A NATURAL DEATH, 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, TO PROVIDE PENALTIES FOR VIOLATIONS, AND TO PROVIDE THAT A PHYSICIAN OR FACILITY THAT DOES NOT FOLLOW INSTRUCTIONS PURSUANT TO A HEALTH CARE POWER OF ATTORNEY MUST ATTEMPT TO FIND A PHYSICIAN OR FACILITY THAT WILL; 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, AS AMENDED, 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, AND TO PROVIDE FOR THE CONTINUED VALIDITY OF A DURABLE POWER OF ATTORNEY FOR HEALTH CARE; TO AMEND SECTION 44-43-950, RELATING TO CONSENT FOR ORGAN DONATIONS, SO AS TO REORDER THE PRIORITY FOR CONSENT BY ADDING AN AGENT UNDER A HEALTH CARE POWER OF ATTORNEY; AND TO PROVIDE FOR THE VALIDITY OF A DURABLE POWER OF ATTORNEY FOR HEALTH CARE IRRESPECTIVE OF AMENDMENTS TO SECTION 62-5-501 CONTAINED IN THIS ACT.
Be it enacted by the General Assembly of the State of South Carolina:
Requirements; form, powers, penalties
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. Life-sustaining procedures do not include the administration of medication or other treatment for comfort care or alleviation of pain. The principal shall indicate in the health care power of attorney whether the provision of nutrition and hydration through medically or surgically implanted tubes is desired.
(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) 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. If the principal fails to indicate either of the statements in Section 7 concerning provision of artificial nutrition and hydration, the agent does not have authority to direct that nutrition and hydration necessary for comfort care or alleviation of pain be withheld or withdrawn.
(D) A health care power of attorney must be substantially in the following form:
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 INTESTATE 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.
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.
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
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.
IF YOU DO NOT INITIAL EITHER OF THE ABOVE STATEMENTS, YOUR AGENT WILL NOT HAVE AUTHORITY TO DIRECT THAT NUTRITION AND HYDRATION NECESSARY FOR COMFORT CARE OR ALLEVIATION OF PAIN BE WITHDRAWN.
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. 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. If a principal has a valid Declaration of a Desire for a Natural Death pursuant to Title 44, Chapter 77, the declaration must be given effect in any situation to which it is applicable. The agent named in the health care power of attorney has authority to make decisions only in situations to which the declaration does not apply. However, nothing herein prevents the principal or a person designated by the principal in the declaration from revoking the declaration as provided in Section 44-77-80.
(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.
(R) A physician or health care facility electing for any reason not to follow an agent's instruction that life-sustaining procedures be withheld or withdrawn as authorized in the health care power of attorney shall make a reasonable effort to locate a physician or health care facility that will follow the instruction and has a duty to transfer the patient to that physician or facility. If a nurse or other employee of a health care provider or nursing care provider gives notice that the employee does not wish to participate in the withholding or withdrawal of life-sustaining procedures as directed by an agent, a reasonable effort shall be made by the physician and the health care provider or nursing care provider to effect the withholding or withdrawal of life-sustaining procedures without the participation of the employee."
Anatomical gifts, authority to consent
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;
(2) the spouse;
(3) an adult son or daughter;
(4) either parent;
(5) an adult brother or sister;
(6) a guardian of the person of the decedent at the time of his death;
(7) any other person authorized or under obligation to dispose of the body."
Adult Health Care Consent Act, definitions
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."
Priority to consent to health 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."
Power of attorney, when not affected by disability
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 alive, mentally competent, and not disabled physically."
Validity of power of attorney for health care decisions
SECTION 6. Section 62-5-501 of the 1976 Code, as last amended by an act of 1992 bearing ratification number 263, is further amended by adding:
"(F) 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."
Organ and tissue donation, priority to consent
SECTION 7. Section 44-43-950 of the 1976 Code, as added by Act 29 of 1991, is amended to read:
"Section 44-43-950. As provided in Section 44-43-330, unless there has been notice of opposition by a decedent or actual notice of opposition by a member of the same or a prior class, the following persons in the stated order of priority may give consent for organ or tissue donation, or both:
(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;
(2) spouse;
(3) son or daughter eighteen years of age or older;
(4) either parent;
(5) brother or sister eighteen years of age or older;
(6) guardian of the decedent at the time of death;
(7) other person authorized or under obligation to dispose of the body."
Validity of durable power of attorney for health decisions
SECTION 8. The validity of a durable power of attorney that authorizes an attorney to make health care decisions regarding the principal properly executed pursuant to Section 62-5-501 of the 1976 Code before or after the effective date of this act is not affected by the amendments to Part 5, Article 5, Title 62 of the 1976 Code contained in this act.
Time effective
SECTION 9. This act takes effect upon approval by the Governor.
Approved the 8th day of April, 1992.