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. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        171
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                S.D. 1
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
 

 
Page 2                                                     171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 3                                                     171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 concerning a health-care decision for the individual.
 
 2      "Non-designated surrogate" means a surrogate who has not
 
 3 been designated by an adult or emancipated minor under section
 
 4 6(b).
 
 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
 

 
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                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 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  Health care decisions; non-designated surrogate.  A
 
15 health care decision made by a non-designated surrogate to
 
16 provide, withhold, or withdraw artificial nutrition and
 
17 hydration, and all other forms of health care may be made only
 
18 when the patient has an incurable and irreversible condition that
 
19 will result in the patient's death within a relatively short
 
20 time.
 
21      §    -4  Advance health-care directives.(a)  An adult or
 
22 emancipated minor may give an individual instruction.  The
 
23 instruction may be oral or written.  The instruction may be
 

 
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                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 limited to take effect only if a specified condition arises.
 
 2      (b)  An adult or emancipated minor may execute a power of
 
 3 attorney for health care, which may authorize the agent to make
 
 4 any health-care decision the principal could have made while
 
 5 having capacity.  The power remains in effect notwithstanding the
 
 6 principal's later incapacity and may include individual
 
 7 instructions.  Unless related to the principal by blood,
 
 8 marriage, or adoption, an agent may not be an owner, operator, or
 
 9 employee of the health-care institution at which the principal is
 
10 receiving care.  The power shall be in writing, contain the date
 
11 of its execution, be signed by the principal, and be witnessed by
 
12 one of the following methods:
 
13      (1)  Be signed by at least two individuals each of whom
 
14           witnessed either the signing of the instrument by the
 
15           principal or the principal's acknowledgment of the
 
16           signature or of the instrument, each witness making the
 
17           following declaration in substance:
 
18           "I declare under penalty of false swearing, pursuant to
 
19           section 710-1062, Hawaii Revised Statutes, that the
 
20           principal is personally known to me, that the principal
 
21           signed or acknowledged this power of attorney in my
 
22           presence, that the principal appears to be of sound
 
23           mind and under no duress, fraud, or undue influence,
 

 
Page 6                                                     171
                                     H.B. NO.           H.D. 2
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 1           that I am not the person appointed as agent by this
 
 2           document, and that I am not a health-care provider, nor
 
 3           an employee of a health-care provider or facility."  
 
 4           In addition, the declaration of at least one of the
 
 5           witnesses shall include the following:
 
 6           "I am not related to the principal by blood, marriage,
 
 7           or adoption, and to the best of my knowledge, I am not
 
 8           entitled to any part of the estate of the principal
 
 9           upon the death of the principal under a will now
 
10           existing or by operation of law;" or
 
11      (2)  Be acknowledged before a notary public at any place
 
12           within this state, the notary public certifying to the
 
13           substance of the following:
 
14           "State of Hawaii
 
15           County of _________________
 
16           On this _______ day of __________, in the year ____,
 
17           before me, _______________, (insert name of notary
 
18           public) appeared _______________, personally known to
 
19           me (or proved to me on the basis of satisfactory
 
20           evidence) to be the person whose name is subscribed to
 
21           this instrument, and acknowledged that he or she
 
22           executed it.
 
23           Notary Seal
 

 
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                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1           _____________________________
 
 2           (Signature of Notary Public)
 
 3           My Commission Expires:"
 
 4      (c)  A witness for a power of attorney for health care shall
 
 5 not be:
 
 6      (1)  A health-care provider;
 
 7      (2)  An employee of a health-care provider or facility; or
 
 8      (3)  The agent.
 
 9      (d)  At least one of the individuals used as a witness for a
 
10 power of attorney for health care shall be someone who is
 
11 neither:
 
12      (1)  A relative of the principal by blood, marriage, or
 
13           adoption; nor
 
14      (2)  An individual who would be entitled to any portion of
 
15           the estate of the principal upon the principal's death
 
16           under any will or codicil thereto of the principal
 
17           existing at the time of execution of the power of
 
18           attorney for health care or by operation of law then
 
19           existing.
 
20      (e)  Unless otherwise specified in a power of attorney for
 
21 health care, the authority of an agent becomes effective only
 
22 upon a determination that the principal lacks capacity, and
 
23 ceases to be effective upon a determination that the principal
 

 
Page 8                                                     171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 has recovered capacity.
 
 2      (f)  Unless otherwise specified in a written advance health-
 
 3 care directive, a determination that an individual lacks or has
 
 4 recovered capacity, or that another condition exists that affects
 
 5 an individual instruction or the authority of an agent, must be
 
 6 made by the primary physician.
 
 7      (g)  An agent shall make a health-care decision in
 
 8 accordance with the principal's individual instructions, if any,
 
 9 and other wishes to the extent known to the agent.  Otherwise,
 
10 the agent shall make the decision in accordance with the agent's
 
11 determination of the principal's best interest.  In determining
 
12 the principal's best interest, the agent shall consider the
 
13 principal's personal values to the extent known to the agent.
 
14      (h)  A health-care decision made by an agent for a principal
 
15 shall be effective without judicial approval.
 
16      (i)  A written advance health-care directive may include the
 
17 individual's nomination of a guardian of the person.
 
18      (j)  An advance health-care directive shall be valid for
 
19 purposes of this chapter if it complies with this chapter,
 
20 regardless of when or where executed or communicated.
 
21      §    -5  Revocation of advance health-care directive.(a)
 
22 An individual may revoke the designation of an agent only by a
 
23 signed writing or by personally informing the supervising health-
 

 
Page 9                                                     171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 care provider.
 
 2      (b)  An individual may revoke all or part of an advance
 
 3 health-care directive, other than the designation of an agent, at
 
 4 any time and in any manner that communicates an intent to revoke.
 
 5      (c)  A health-care provider, agent, guardian, or surrogate
 
 6 who is informed of a revocation shall promptly communicate the
 
 7 fact of the revocation to the supervising health-care provider
 
 8 and to any health-care institution at which the patient is
 
 9 receiving care.
 
10      (d)  A decree of annulment, divorce, dissolution of
 
11 marriage, or legal separation revokes a previous designation of a
 
12 spouse as agent unless otherwise specified in the decree or in a
 
13 power of attorney for health care.
 
14      (e)  An advance health-care directive that conflicts with an
 
15 earlier advance health-care directive revokes the earlier
 
16 directive to the extent of the conflict.
 
17      §    -6  Decisions by a surrogate.(a)  A surrogate may
 
18 make a health-care decision for a patient who is an adult or
 
19 emancipated minor if the patient has been determined by the
 
20 primary physician to lack capacity and no agent or guardian has
 
21 been appointed or the agent or guardian is not reasonably
 
22 available.
 
23      (b)  A patient may designate any individual to act as a
 

 
Page 10                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 surrogate by personally informing the supervising health care
 
 2 provider.  In the absence of a designation, or if the designee is
 
 3 not reasonably available, any of the following persons of the
 
 4 patient's family who is reasonably available may act as a
 
 5 non-designated surrogate:
 
 6      (1)  The spouse, unless legally separated;
 
 7      (2)  A reciprocal beneficiary;
 
 8      (3)  An adult child;
 
 9      (4)  A parent; or
 
10      (5)  An adult brother or sister.
 
11      If none of these individuals is reasonably available, an
 
12 adult who has exhibited special care and concern for the patient,
 
13 who is familiar with the patient's personal values, and who is
 
14 reasonably available may act as a non-designated surrogate.
 
15      (c)  A surrogate shall communicate the surrogate's
 
16 assumption of authority as promptly as practicable to the members
 
17 of the patient's family specified in subsection (b) who can be
 
18 readily contacted.
 
19      (d)  If more than one individual assumes authority to act as
 
20 surrogate, and they do not agree on a health-care decision and
 
21 the supervising health-care provider is so informed, the
 
22 supervising health-care provider shall call for and hold a
 
23 meeting to determine who will act as the agreed upon surrogate.
 

 
Page 11                                                    171
                                     H.B. NO.           H.D. 2
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 1 If no agreement is reached as to who should serve as a surrogate
 
 2 decision-maker then guardianship shall be sought.
 
 3      (e)  A surrogate shall make a health-care decision in
 
 4 accordance with the patient's individual instructions, if any,
 
 5 and other wishes to the extent known to the surrogate.
 
 6 Otherwise, the surrogate shall make the decision in accordance
 
 7 with the surrogate's determination of the patient's best
 
 8 interest, after consultation with the supervising health care
 
 9 provider to ascertain the risks and benefits of the decisions
 
10 being considered and available alternatives.  In determining the
 
11 patient's best interest, the surrogate shall consider the
 
12 patient's personal values to the extent known to the surrogate.
 
13      (f)  A health-care decision made by a surrogate for a
 
14 patient is effective without judicial approval.
 
15      (g)  An individual at any time may disqualify another,
 
16 including a member of the individual's family, from acting as the
 
17 individual's surrogate by a signed writing or by personally
 
18 informing the supervising health-care provider of the
 
19 disqualification.
 
20      (h)  Unless related to the patient by blood, marriage, or
 
21 adoption, a surrogate may not be an owner, operator, or employee
 
22 of a health care institution where the patient is receiving care.
 
23      (i)  A supervising health-care provider shall require an
 

 
Page 12                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 individual claiming the right to act as surrogate for a patient
 
 2 to provide a written declaration under penalty of false swearing
 
 3 stating facts and circumstances reasonably sufficient to
 
 4 establish the claimed authority.
 
 5      §    -7  Decisions by guardian.(a)  A guardian shall
 
 6 comply with the ward's individual instructions and shall not
 
 7 revoke the ward's pre-incapacity advance health-care directive
 
 8 unless expressly authorized by a court.
 
 9      (b)  Absent a court order to the contrary, a health-care
 
10 decision of an agent takes precedence over that of a guardian.
 
11      (c)  A health-care decision made by a guardian for the ward
 
12 is effective without judicial approval.
 
13      §    -8  Obligations of health-care provider.(a)  Before
 
14 implementing a health-care decision made for a patient, a
 
15 supervising health-care provider, if possible, shall promptly
 
16 communicate to the patient the decision made and the identity of
 
17 the person making the decision.
 
18      (b)  A supervising health-care provider who knows of the
 
19 existence of an advance health-care directive, a revocation of an
 
20 advance health-care directive, or a designation or
 
21 disqualification of a surrogate, shall promptly record its
 
22 existence in the patient's health-care record and, if it is in
 
23 writing, shall request a copy and if one is furnished shall
 

 
Page 13                                                    171
                                     H.B. NO.           H.D. 2
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 1 arrange for its maintenance in the health-care record.
 
 2      (c)  A primary physician who makes or is informed of a
 
 3 determination that a patient lacks or has recovered capacity, or
 
 4 that another condition exists which affects an individual
 
 5 instruction or the authority of an agent, guardian, or surrogate,
 
 6 shall promptly record the determination in the patient's
 
 7 health-care record and communicate the determination to the
 
 8 patient, if possible, and to any person then authorized to make
 
 9 health-care decisions for the patient.
 
10      (d)  Except as provided in subsections (e) and (f), a
 
11 health-care provider or institution providing care to a patient
 
12 shall:
 
13      (1)  Comply with an individual instruction of the patient
 
14           and with a reasonable interpretation of that
 
15           instruction made by a person then authorized to make
 
16           health-care decisions for the patient; and
 
17      (2)  Comply with a health-care decision for the patient made
 
18           by a person then authorized to make health-care
 
19           decisions for the patient to the same extent as if the
 
20           decision had been made by the patient while having
 
21           capacity.
 
22      (e)  A health-care provider may decline to comply with an
 
23 individual instruction or health-care decision for reasons of
 

 
Page 14                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 conscience.  A health-care institution may decline to comply with
 
 2 an individual instruction or health-care decision if the
 
 3 instruction or decision is contrary to a policy of the
 
 4 institution which is expressly based on reasons of conscience and
 
 5 if the policy was timely communicated to the patient or to a
 
 6 person then authorized to make health-care decisions for the
 
 7 patient.
 
 8      (f)  A health-care provider or institution may decline to
 
 9 comply with an individual instruction or health-care decision
 
10 that requires medically ineffective health care or health care
 
11 contrary to generally accepted health-care standards applicable
 
12 to the health-care provider or institution.
 
13      (g)  A health-care provider or institution that declines to
 
14 comply with an individual instruction or health-care decision
 
15 shall:
 
16      (1)  Promptly so inform the patient, if possible, and any
 
17           person then authorized to make health-care decisions
 
18           for the patient;
 
19      (2)  Provide continuing care to the patient until a transfer
 
20           can be effected; and
 
21      (3)  Unless the patient or person then authorized to make
 
22           health-care decisions for the patient refuses
 
23           assistance, immediately make all reasonable efforts to
 

 
Page 15                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 16                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 17                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 right of an individual to make health-care decisions while having
 
 2 capacity to do so.
 
 3      (b)  An individual is presumed to have capacity to make a
 
 4 health-care decision, to give or revoke an advance health-care
 
 5 directive, and to designate or disqualify a surrogate.
 
 6      §    -13  Effect of copy.  A copy of a written advance
 
 7 health-care directive, revocation of an advance health-care
 
 8 directive, or designation or disqualification of a surrogate has
 
 9 the same effect as the original.
 
10      §    -14  Effect of this chapter.(a)  This chapter shall
 
11 not create a presumption concerning the intention of an
 
12 individual who has not made or who has revoked an advance
 
13 health-care directive.
 
14      (b)  Death resulting from the withholding or withdrawal of
 
15 health care in accordance with this chapter shall not for any
 
16 purpose constitute a suicide or homicide or legally impair or
 
17 invalidate a policy of insurance or an annuity providing a death
 
18 benefit, notwithstanding any term of the policy or annuity to the
 
19 contrary.
 
20      (c)  This chapter shall not authorize mercy killing,
 
21 assisted suicide, euthanasia, or the provision, withholding, or
 
22 withdrawal of health care, to the extent prohibited by other
 
23 statutes of this State.
 

 
Page 18                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1      (d)  This chapter shall not authorize or require a
 
 2 health-care provider or institution to provide health care
 
 3 contrary to generally accepted health-care standards applicable
 
 4 to the health-care provider or institution.
 
 5      (e)  This chapter shall not authorize an agent or surrogate
 
 6 to consent to the admission of an individual to a psychiatric
 
 7 facility as defined in chapter 334, unless the individual's
 
 8 written advance health-care directive expressly so provides.
 
 9      (f)  This chapter shall not affect other statutes of this
 
10 State governing treatment for mental illness of an individual
 
11 involuntarily committed to a psychiatric facility.
 
12      (g)  This chapter shall not apply to a patient diagnosed as
 
13 pregnant by the attending physician.
 
14      §    -15  Judicial relief.  On petition of a patient, the
 
15 patient's agent, guardian, or surrogate, a health-care provider
 
16 or institution involved with the patient's care, or an individual
 
17 described in section   -6(b) or (c), any court of competent
 
18 jurisdiction may enjoin or direct a health-care decision or order
 
19 other equitable relief.  A proceeding under this section shall be
 
20 governed by part 3 of article V of chapter 560.
 
21      §   -16  Uniformity of application and construction.  This
 
22 chapter shall be applied and construed to effectuate its general
 
23 purpose to make uniform the law with respect to the subject of
 

 
Page 19                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 this chapter among states enacting it.
 
 2      §    -17  Optional form.  The following sample form may be
 
 3 used to create an advance health-care directive.  This form may
 
 4 be copied and used by filling in the blanks or by checking the
 
 5 boxes, as appropriate.  This form may be modified to suit the
 
 6 needs of the person, or a completely different form may be used
 
 7 that contains the substance of the following form.
 
 8                  "ADVANCE HEALTH-CARE DIRECTIVE
 
 9                            Explanation
 
10      You have the right to give instructions about your own
 
11 health care.  You also have the right to name someone else to
 
12 make health-care decisions for you.  This form lets you do either
 
13 or both of these things.  It also lets you express your wishes
 
14 regarding the designation of your primary physician.  If you use
 
15 this form, you may complete or modify all or any part of it.  You
 
16 are free to use a different form.
 
17      Part 1 of this form is a power of attorney for health care.
 
18 Part 1 lets you name another individual as agent to make health-
 
19 care decisions for you if you become incapable of making your own
 
20 decisions or if you want someone else to make those decisions for
 
21 you now even though you are still capable.  You may name an
 
22 alternate agent to act for you if your first choice is not
 
23 willing, able, or reasonably available to make decisions for you.
 

 
Page 20                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 21                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 22                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 23                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 24                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 25                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 would outweigh the expected benefits, OR
 
 2      [   ] (b) Choice To Prolong Life
 
 3      I want my life to be prolonged as long as possible within
 
 4 the limits of generally accepted health-care standards.
 
 5      (7)  ARTIFICIAL NUTRITION AND HYDRATION:  Artificial
 
 6 nutrition and hydration must be provided, withheld or withdrawn
 
 7 in accordance with the choice I have made in paragraph (6) unless
 
 8 I mark the following box.  If I mark this box [   ], artificial
 
 9 nutrition and hydration must be provided regardless of my
 
10 condition and regardless of the choice I have made in paragraph
 
11 (6).
 
12      (8)  RELIEF FROM PAIN:  If I mark this box [  ], I direct
 
13 that this treatment to alleviate pain or discomfort should be
 
14 provided to me even if it hastens my death.
 
15      (9)  OTHER WISHES: (If you do not agree with any of the
 
16 optional choices above and wish to write your own, or if you wish
 
17 to add to the instructions you have given above, you may do so
 
18 here.)  I direct that:
 
19 ____________________________________________________________
 
20 ____________________________________________________________
 
21                (Add additional sheets if needed.)
 
22                              PART 3
 
23                    DONATION OF ORGANS AT DEATH
 

 
Page 26                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 27                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 (phone)
 
 2      OPTIONAL:  If the physician I have designated above is not
 
 3 willing, able, or reasonably available to act as my primary
 
 4 physician, I designate the following physician as my primary
 
 5 physician:
 
 6 ___________________________________________________________
 
 7 (name of physician)
 
 8 ___________________________________________________________
 
 9 (address) (city) (state) (zip code)
 
10 ___________________________________________________________
 
11 (phone)
 
12 ___________________________________________________________
 
13      (12) EFFECT OF COPY:  A copy of this form has the same
 
14 effect as the original.
 
15      (13) SIGNATURES:  Sign and date the form here:
 
16 _____________________________ _____________________________
 
17 (date)                        (sign your name)
 
18 _____________________________ _____________________________
 
19 (address)                     (print your name)
 
20 _____________________________
 
21 (city) (state)
 
22      (14) WITNESSES: This power of attorney will not be valid for
 
23 making health-care decisions unless it is either (a) signed by
 

 
Page 28                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 29                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 30                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 executed it.
 
 2 Notary Seal
 
 3 ____________________________
 
 4 (Signature of Notary Public)"
 
 5      SECTION 2.  Section 551D-2.5, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "[[]§551D-2.5[]]  Durable power of attorney for health care
 
 8 decisions.  [(a)]  A competent person who has attained the age of
 
 9 majority may execute a durable power of attorney authorizing an
 
10 agent to make any lawful health care decisions [that could have
 
11 been made by the principal at the time of election.] pursuant to
 
12 the Uniform Health-Care Decisions Act (Modified), chapter  .
 
13      [(b)  The durable power of attorney made pursuant to this
 
14 section:
 
15      (1)  Shall be in writing;
 
16      (2)  Shall be signed by the principal, or by another person
 
17           in the principal's presence and at the principal's
 
18           expressed direction;
 
19      (3)  Shall be dated;
 
20      (4)  Shall be signed in the presence of two or more
 
21           witnesses who:
 
22           (A)  Are at least eighteen years of age;
 
23           (B)  Are not related to the principal by blood,
 

 
Page 31                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 32                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 granted in the power of attorney have not been previously revoked
 
 2 by the principal or otherwise terminated.]"
 
 3      SECTION 3.  Section 551D-2.6, Hawaii Revised Statutes, is
 
 4 repealed.
 
 5      ["[§551D-2.6]  Durable power of attorney sample form.  The
 
 6 following sample form may be copied and used by filling in the
 
 7 blanks or may be changed to add more individualized instructions;
 
 8 or an entirely different format may be used to provide health
 
 9 care instructions.
 
10        DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
 
11 A.   Statement of Principal
 
12      Declaration made this ________ day of ___________ (month,
 
13 year).  I, _________________, being of sound mind, and
 
14 understanding that I have the right to request that my life be
 
15 prolonged to the greatest extent possible, willfully and
 
16 voluntarily make known my desire that my attorney-in-fact
 
17 ("agent") shall be authorized as set forth below and do hereby
 
18 declare:
 
19      My instructions shall prevail even if they create a conflict
 
20 with the desires of my relatives, hospital policies, or the
 
21 principles of those providing my care.
 
22                             CHECKLIST
 
23      I have considered the extent of the authority I want my
 

 
Page 33                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 34                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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

 
Page 35                                                    171
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

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