§327E-3  Advance health-care directives.  (a)  An adult or emancipated minor may give an individual instruction.  The instruction may be oral or written.  The instruction may be limited to take effect only if a specified condition arises.

     (b)  An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity.  The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions.  Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of the health-care institution at which the principal is receiving care.  The power shall be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one of the following methods:

     (1)  Signed by at least two individuals, each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgment of the signature of the instrument; or

     (2)  Acknowledged before a notary public at any place within this State.

     (c)  A witness for a power of attorney for health care shall not be:

     (1)  A health-care provider;

     (2)  An employee of a health-care provider or facility; or

     (3)  The agent.

     (d)  At least one of the individuals used as a witness for a power of attorney for health care shall be someone who is neither:

     (1)  Related to the principal by blood, marriage, or adoption; nor

     (2)  Entitled to any portion of the estate of the principal upon the principal's death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.

     (e)  Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.

     (f)  Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, shall be made by the primary physician.

     (g)  An agent shall make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent.  Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest.  In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.

     (h)  A health-care decision made by an agent for a principal shall be effective without judicial approval.

     (i)  A written advance health-care directive may include the individual's nomination of a guardian.

     (j)  An advance health-care directive shall be valid for purposes of this chapter if it complies with this chapter, or if it was executed in compliance with the laws of the state where it was executed. [L 1999, c 169, pt of §1; am L 2004, c 161, §36]

Law Journals and Reviews

  Becoming a "Dementia-Capable" Attorney -- Representing Individuals with Dementia.  18 HBJ, no. 13, at 1 (2015).

  Your Body, Your Choice:  How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment.  27 UH L. Rev. 201 (2004).