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S.B. 75
1
ADVANCED HEALTH CARE DIRECTIVE ACT
2
2007 GENERAL SESSION
3
STATE OF UTAH
4
Chief Sponsor: Allen M. Christensen
5
House Sponsor:
____________
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7
LONG TITLE
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General Description:
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This bill repeals the Personal Choice and Living Will Act and enacts the Advanced
10
Health Care Directive Act.
11
Highlighted Provisions:
12
This bill:
13
. establishes legislative intent;
14
. defines terms;
15
. gives preference to current health care decisions;
16
. creates a presumption that an individual has capacity to make health care decisions
17
and appoint an agent;
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. establishes:
19
. powers of a health care agent;
20
. surrogate decision makers when an agent is not available;
21
. scope of surrogate powers;
22
. priority of decision makers; and
23
. powers of court-appointed guardians;
24
. coordinates the role of agents and surrogates as personal representatives of an
25
individual;
26
. provides for the revocation of a health care directive;
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. requires notice to health care providers of a health care directive or the appointment
28
of an agent;
29
. establishes the duties of a health care provider and a health care facility regarding
30
implementing a health care directive;
31
. creates a presumption of validity of health care directives;
32
. creates a presumptive statutory form for health care directives;
33
. prohibits the illegal destruction or forgery of a health care directive;
34
. prohibits a life or health insurer from:
35
. denying benefits under a policy because an individual signed a health insurance
36
directive which authorizes the withdrawal of life support; or
37
. requiring an individual to create a health care directive in order to be insured;
38
and
39
. provides for reciprocity for health care directives or similar documents from other
40
states.
41
Monies Appropriated in this Bill:
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None
43
Other Special Clauses:
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This bill takes effect on January 1, 2008.
45
Utah Code Sections Affected:
46
AMENDS:
47
62A-3-301, as last amended by Chapter 131, Laws of Utah 2003
48
76-5-111, as last amended by Chapter 108, Laws of Utah 2002
49
ENACTS:
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75-2a-1101, Utah Code Annotated 1953
51
75-2a-1102, Utah Code Annotated 1953
52
75-2a-1103, Utah Code Annotated 1953
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75-2a-1104, Utah Code Annotated 1953
54
75-2a-1105, Utah Code Annotated 1953
55
75-2a-1105.5, Utah Code Annotated 1953
56
75-2a-1106, Utah Code Annotated 1953
57
75-2a-1107, Utah Code Annotated 1953
58
75-2a-1108, Utah Code Annotated 1953
59
75-2a-1109, Utah Code Annotated 1953
60
75-2a-1110, Utah Code Annotated 1953
61
75-2a-1111, Utah Code Annotated 1953
62
75-2a-1112, Utah Code Annotated 1953
63
75-2a-1113, Utah Code Annotated 1953
64
75-2a-1114, Utah Code Annotated 1953
65
75-2a-1115, Utah Code Annotated 1953
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75-2a-1116, Utah Code Annotated 1953
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75-2a-1117, Utah Code Annotated 1953
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75-2a-1118, Utah Code Annotated 1953
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75-2a-1119, Utah Code Annotated 1953
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75-2a-1120, Utah Code Annotated 1953
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75-2a-1121, Utah Code Annotated 1953
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75-2a-1122, Utah Code Annotated 1953
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75-2a-1123, Utah Code Annotated 1953
74
REPEALS:
75
75-2-1101, as enacted by Chapter 173, Laws of Utah 1985
76
75-2-1102, as last amended by Chapter 129, Laws of Utah 1993
77
75-2-1103, as last amended by Chapter 129, Laws of Utah 1993
78
75-2-1104, as last amended by Chapter 129, Laws of Utah 1993
79
75-2-1105, as last amended by Chapter 129, Laws of Utah 1993
80
75-2-1105.5, as last amended by Chapter 141, Laws of Utah 1999
81
75-2-1106, as last amended by Chapter 129, Laws of Utah 1993
82
75-2-1107, as last amended by Chapter 129, Laws of Utah 1993
83
75-2-1108, as enacted by Chapter 173, Laws of Utah 1985
84
75-2-1109, as enacted by Chapter 173, Laws of Utah 1985
85
75-2-1110, as enacted by Chapter 173, Laws of Utah 1985
86
75-2-1111, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1112, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1113, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1114, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1115, as last amended by Chapter 241, Laws of Utah 1991
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75-2-1116, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1117, as enacted by Chapter 173, Laws of Utah 1985
93
75-2-1118, as enacted by Chapter 173, Laws of Utah 1985
94
75-2-1119, as enacted by Chapter 129, Laws of Utah 1993
95
96
Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-3-301
is amended to read:
98
62A-3-301. Definitions.
99
As used in this part:
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(1) "Abandonment" means any knowing or intentional action or inaction, including
101
desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
102
vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
103
medical or other health care.
104
(2) "Abuse" means:
105
(a) attempting to cause harm, intentionally or knowingly causing harm, or intentionally
106
or knowingly placing another in fear of imminent harm;
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(b) unreasonable or inappropriate use of physical restraint, medication, or isolation that
108
causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's
109
orders or used as an unauthorized substitute for treatment, unless that conduct furthers the
110
health and safety of the adult;
111
(c) emotional or psychological abuse;
112
(d) sexual offense as described in Title 76, Chapter 5, Offenses Against the Person; or
113
(e) deprivation of life sustaining treatment, except:
114
(i) as provided in Title 75, Chapter [2] 2a, Part 11, [Personal Choice and Living Will]
115
Advanced Health Care Directive Act; or
116
(ii) when informed consent, as defined in Section
76-5-111
, has been obtained.
117
(3) "Adult" means a person who is 18 years of age or older.
118
(4) "Adult protection case file" means documents and information contained in the file
119
maintained by Adult Protective Services on a particular case, including any report or other
120
notification received by the division or Adult Protective Services.
121
(5) "Adult Protective Services" means the unit within the division responsible to
122
investigate abuse, neglect, and exploitation of vulnerable adults and provide appropriate
123
protective services.
124
(6) "Caretaker" means any person, entity, corporation, or public institution that
125
assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
126
supervision, medical or other health care, or other necessities. "Caretaker" includes a relative
127
by blood or marriage, a household member, a person who is employed or who provides
128
volunteer work, or a person who contracts or is under court order to provide care.
129
(7) "Counsel" means an attorney licensed to practice law in this state.
130
(8) "Elder abuse" means abuse, neglect, or exploitation of an elder adult.
131
(9) "Elder adult" means a person 65 years of age or older.
132
(10) "Emergency" means a circumstance in which a vulnerable adult is at an immediate
133
risk of death or serious physical injury or is at risk of immediate, serious harm. Risk of
134
immediate, serious harm includes exploitation that results in the inability of a vulnerable adult
135
to provide funds for immediate needs, including food, shelter, and necessary medical care.
136
(11) "Emotional or psychological abuse" means intentional or knowing verbal or
137
nonverbal conduct directed at a vulnerable adult including ridiculing, intimidating, yelling,
138
swearing, threatening, isolating, coercing, harassing, or other forms of intimidating behavior
139
that results or could result in the vulnerable adult suffering mental anguish or emotional
140
distress, including fear, humiliation, degradation, agitation, confusion, or isolation.
141
(12) "Exploitation" means the offense described in Subsection
76-5-111
(4).
142
(13) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
143
psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
144
knowingly or intentionally.
145
(14) "Intimidation" means communication through verbal or nonverbal conduct which
146
threatens deprivation of money, food, clothing, medicine, shelter, social interaction,
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supervision, health care, or companionship, or which threatens isolation or abuse.
148
(15) (a) "Isolation" means knowingly or intentionally preventing a vulnerable adult
149
from having contact with another person by:
150
(i) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
151
contrary to the express wishes of the vulnerable adult, including communicating to a visitor
152
that the vulnerable adult is not present or does not want to meet with or talk to the visitor,
153
knowing that communication to be false;
154
(ii) physically restraining the vulnerable adult in order to prevent the vulnerable adult
155
from meeting with a visitor; or
156
(iii) making false or misleading statements to the vulnerable adult in order to induce
157
the vulnerable adult to refuse to receive communication from visitors or other family members.
158
(b) The term "isolation" does not include an act intended to protect the physical or
159
mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
160
instructions of a physician or other professional advisor of the vulnerable adult.
161
(16) "Lacks capacity to consent" has the meaning as provided in Section
76-5-111
.
162
(17) "Neglect" means:
163
(a) (i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
164
care, or dental, medical, or other health care; or
165
(ii) failure to provide protection from health and safety hazards or maltreatment;
166
(b) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
167
with the degree of care that a reasonable person in a like position would exercise;
168
(c) a pattern of conduct by a caretaker, without the vulnerable adult's informed consent,
169
resulting in deprivation of food, water, medication, health care, shelter, cooling, heating, or
170
other services necessary to maintain the vulnerable adult's well being;
171
(d) knowing or intentional failure by a caretaker to carry out a prescribed treatment
172
plan that causes or is likely to cause harm to the vulnerable adult;
173
(e) self-neglect by the vulnerable adult; or
174
(f) abandonment by a caretaker.
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(18) "Physical injury" includes damage to any bodily tissue caused by nontherapeutic
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conduct, to the extent that the tissue must undergo a healing process in order to be restored to a
177
sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot
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be restored to a sound and healthy condition. "Physical injury" includes skin bruising, a
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dislocation, physical pain, illness, impairment of physical function, a pressure sore, bleeding,
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malnutrition, dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling,
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injury to any internal organ, or any other physical condition that imperils the health or welfare
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of a vulnerable adult and is not a serious physical injury as defined in this section.
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(19) "Protected person" means a vulnerable adult for whom the court has ordered
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protective services, including a vulnerable adult for whom emergency protective services have
185
been established under the provisions of this chapter.
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(20) "Protective services" means any services provided by Adult Protective Services to
187
a vulnerable adult, either with the consent of the vulnerable adult or the vulnerable adult's
188
guardian or conservator, or by court order, if that adult has been abused, neglected, exploited,
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or is in a state of self-neglect; protective services may include:
190
(a) an intake system for receiving and screening reports;
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(b) investigation of referrals in accordance with statutory and policy guidelines;
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(c) protective needs assessment;
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(d) coordination and referral to community resources for services; or
194
(e) short-term, limited services including emergency shelter or respite when family or
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other community resources are not available to provide protection.
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(21) "Self-neglect" means the failure of a vulnerable adult to provide food, water,
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medication, health care, shelter, cooling, heating, safety, or other services necessary to maintain
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the vulnerable adult's well being when that failure is the result of the adult's mental or physical
199
impairment. Choice of lifestyle or living arrangements may not, by themselves, be evidence of
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self-neglect.
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(22) "Serious physical injury" has the meaning as provided in Section
76-5-111
.
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(23) "Substantiated" or "substantiation" means a finding, based upon a preponderance
203
of the evidence, that there is a reasonable basis to conclude that abuse, neglect, or exploitation
204
occurred, regardless of whether there is an identified perpetrator or current need for protective
205
services. If more than one allegation is made or identified during the course of the
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investigation, any allegation determined to meet the criteria for substantiation requires a case
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finding of "substantiated."
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(24) "Undue influence" occurs when a person uses the person's role, relationship, or
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power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear
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of a vulnerable adult, or uses the person's role, relationship, or power to gain control
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deceptively over the decision making of the vulnerable adult.
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(25) "Unsubstantiated" means a finding, based upon a preponderance of the evidence,
213
that there is insufficient evidence to conclude that abuse, neglect, or exploitation occurred.
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(26) "Vulnerable adult" means an elder adult, or an adult who has a mental or physical
215
impairment which substantially affects that person's ability to:
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(a) provide personal protection;
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(b) provide necessities such as food, shelter, clothing, or mental or other health care;
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(c) obtain services necessary for health, safety, or welfare;
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(d) carry out the activities of daily living;
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(e) manage the adult's own resources; or
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(f) comprehend the nature and consequences of remaining in a situation of abuse,
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neglect, or exploitation.
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Section 2.
Section
75-2a-1101
is enacted to read:
224
Part 11. Advanced Health Care Directive Act
225
75-2a-1101. Title.
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This part is known as the "Advanced Health Care Directive Act."
227
Section 3.
Section
75-2a-1102
is enacted to read:
228
75-2a-1102. Intent statement.
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(1) The Legislature finds:
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(a) developments in health care technology make possible many alternatives for
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treating medical conditions and make possible the unnatural prolongation of death;
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(b) individuals should have the clear legal choice to:
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(i) accept or reject health care, even if rejecting health care will result in death sooner
234
than death would be expected to occur if rejected health care were started or continued;
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(ii) be spared unwanted procedures; and
236
(iii) be permitted to die with a maximum of dignity and function and a minimum of
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pain;
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(c) Utah law should:
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(i) provide individuals with a legal tool to designate a health care agent and express
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preferences about health care options to go into effect only after the individual loses the ability
241
to make or communicate health care decisions, including decisions about end-of-life care; and
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(ii) promote a health care directive system that can be administered effectively within
243
the health care system;
244
(d) surrogate decisions made on behalf of a person who previously had capacity to
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make health care decisions, but who has lost health care decision making capacity should be
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based on:
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(i) input from the incapacitated person, to the extent possible under the circumstances;
248
(ii) specific preferences expressed by the individual prior to the loss of health care
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decision making capacity;
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(iii) the surrogate's understanding of the individual's health care preferences; and
251
(iv) the surrogate's understanding of what the individual would have wanted under the
252
circumstances; and
253
(e) surrogate decisions made on behalf of an individual who has never had health care
254
decision making capacity should be made on the basis of the individual's best interest.
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(2) In recognition of the dignity and privacy that all individuals are entitled to expect,
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and to protect the right of an individual to refuse to be treated without the individual's consent,
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the Legislature declares that this state recognizes the right to make binding health care
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directives directing health care providers to:
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(a) provide life sustaining or life supporting medically indicated health care;
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(b) withhold or withdraw health care; or
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(c) provide health care only to the extent set forth in a health care directive.
262
Section 4.
Section
75-2a-1103
is enacted to read:
263
75-2a-1103. Definitions.
264
As used in this part:
265
(1) "Agent" means a person designated in an advanced health care directive to make
266
health care decisions for the declarant.
267
(2) "Best interest" means that the benefits to the individual resulting from a treatment
268
outweigh the burdens to the individual resulting from the treatment, taking into account:
269
(a) the effect of the treatment on the physical, emotional, and cognitive functions of the
270
individual;
271
(b) the degree of physical pain or discomfort caused to the individual by the treatment
272
or the withholding or withdrawal of treatment;
273
(c) the degree to which the individual's medical condition, the treatment, or the
274
withholding or withdrawal of treatment, result in a severe and continuing impairment of the
275
dignity of the individual by subjecting the individual to extreme humiliation and dependency;
276
(d) the effect of the treatment on the life expectancy of the individual;
277
(e) the prognosis of the individual for recovery with and without the treatment;
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(f) the risks, side effects, and benefits of the treatment, or the withholding or
279
withdrawal of treatment; and
280
(g) the religious beliefs and basic values of the individual receiving treatment, to the
281
extent these may assist the decision maker in determining the best interest.
282
(3) "Capacity to appoint an agent" means that the individual understands the
283
consequences of appointing a particular person as agent.
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(4) "Declarant" means an individual who has signed or directed the signing of a health
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care directive.
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(5) "Default surrogate decision maker" means the person who may make decisions for
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an individual when either:
288
(a) an agent has not been appointed; or
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(b) an agent is not able or available to make decisions for a declarant.
290
(6) "Generally accepted health care standards":
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(a) is defined only for the purpose of:
292
(i) this part and does not define the standard of care for any other purpose under Utah
293
law; and
294
(ii) enabling health care providers to interpret the statutory form set forth in Section
295
75-2a-1116
; and
296
(b) means the standard of care that justifies a provider in declining to provide life
297
sustaining or life supporting care because the proposed life sustaining care:
298
(i) will not prevent or reduce the deterioration in the health or functional status of an
299
individual;
300
(ii) will not prevent the impending death of an individual; or
301
(iii) will impose more burden on the individual than any expected benefit to the
302
individual.
303
(7) "Guardian" means a court-appointed guardian.
304
(8) "Health care" means any care, treatment, service, or procedure to improve,
305
maintain, diagnose, or otherwise affect an individual's physical or mental condition.
306
(9) "Health care decision":
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(a) means a decision about an individual's health care made by an individual or the
308
individual's surrogate, that is communicated to a health care provider;
309
(b) includes:
310
(i) selection and discharge of a health care provider and a health care facility;
311
(ii) approval or disapproval of diagnostic tests, surgical procedures, programs of
312
medication, and orders not to resuscitate; and
313
(iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and
314
all other forms of health care; and
315
(c) does not include decisions about the individual's financial affairs or social
316
interactions other than as indirectly affected by the health care decision.
317
(10) "Health care decision making capacity" means an individual's ability to make an
318
informed decision about receiving or refusing health care, including:
319
(a) the ability to understand the nature, extent, or probable consequences of the health
320
care;
321
(b) the ability to make a rational evaluation of the burdens, risks, benefits, and
322
alternatives to the proposed health care; and
323
(c) the ability to communicate a decision.
324
(11) "Health care directive":
325
(a) includes:
326
(i) a designation of an agent to make health care decisions for an individual when the
327
individual cannot make or communicate health care decisions; or
328
(ii) an expression of preferences about health care decisions; and
329
(b) may take one of the following forms:
330
(i) a written document, voluntarily executed by an individual in accordance with the
331
requirements of this part; or
332
(ii) a witnessed oral statement, made by an individual, in accordance with the
333
requirements of this part.
334
(12) "Health care facility" means:
335
(a) a health care facility as defined in Title 26, Chapter 21, Health Care Facility
336
Licensing and Inspection Act; and
337
(b) private offices of physicians, dentists, and other health care providers licensed to
338
provide health care under Title 58, Occupations and Professions.
339
(13) "Health care provider" is defined in Section
78-14-3
.
340
(14) "Individual":
341
(a) means:
342
(i) a person 18 years of age or older; or
343
(ii) an emancipated minor as defined in Sections
78-3a-1001
to
78-3a-1105
; and
344
(b) includes:
345
(i) a declarant; and
346
(ii) a person who has not completed an advanced health care directive.
347
(15) "Reasonably available" means:
348
(a) readily able to be contacted without undue effort; and
349
(b) willing and able to act in a timely manner considering the urgency of the
350
individual's health care needs.
351
(16) "Surrogate" means a decision maker who is:
352
(a) an appointed agent;
353
(b) a default surrogate decision maker under the provisions of Section
75-2a-1107
; or
354
(c) a court-appointed guardian.
355
Section 5.
Section
75-2a-1104
is enacted to read:
356
75-2a-1104. Capacity to make health care decisions -- Presumption -- Overcoming
357
presumption.
358
(1) An individual is presumed to have:
359
(a) health care decision making capacity; and
360
(b) capacity to make or revoke a health care directive.
361
(2) To overcome the presumption of capacity, a physician who has personally
362
examined the individual and assessed the individual's health care decision making capacity
363
must:
364
(a) find that the individual lacks health care decision making capacity;
365
(b) record the finding in the individual's medical chart including an indication of
366
whether the individual is likely to regain health care decision making capacity; and
367
(c) make a reasonable effort to communicate the determination to:
368
(i) the individual;
369
(ii) other health care providers or health care facilities that the physician would
370
routinely inform of such a finding; and
371
(iii) if the individual has a surrogate, any known surrogate.
372
(3) (a) If the health care provider finds that an individual lacks health care decision
373
making capacity in accordance with Subsection (2), the individual may at any time, challenge
374
the finding by:
375
(i) submitting a written notice of the challenge to the health care provider; or
376
(ii) orally informing the health care provider of the challenge.
377
(b) A health care provider who is informed of a challenge pursuant to Subsection (3)(a)
378
shall promptly inform an individual, if any, who is serving as surrogate of the individual's
379
challenge.
380
(c) A surrogate informed of a challenge to a finding under this section, or the
381
individual if no surrogate is acting on the individual's behalf, shall inform the following of the
382
individual's challenge:
383
(i) any other health care providers involved in the individual's care; and
384
(ii) the health care facility, if any, in which the individual is receiving care.
385
(d) An individual's challenge to a finding under this section is binding on a health care
386
provider and a health care facility unless otherwise ordered by a court.
387
(e) If an individual does not challenge a finding, the health care provider and health
388
care facility may rely on a surrogate to make health care decisions for the individual.
389
(4) A health care professional or health care facility providing care to the individual
390
that relies on a surrogate to make decisions on behalf of an individual has an ongoing
391
obligation to consider whether the individual continues to lack health care decision making
392
capacity.
393
(5) If at any time a health care provider finds, based on an examination and assessment,
394
that the individual has regained health care decision making capacity, the health care provider
395
shall record the results of the assessment in the individual's medical record, and the individual
396
can direct his health care.
397
Section 6.
Section
75-2a-1105
is enacted to read:
398
75-2a-1105. Capacity to appoint an agent.
399
(1) An individual is presumed to have the capacity to complete an advanced health care
400
directive.
401
(2) An individual who is found to lack health care decision making capacity under the
402
provisions of Section
75-2a-1104
:
403
(a) lacks the capacity to give an advanced health care directive, including Part II of the
404
form created in Section
75-2a-116
, or any other substantially similar form expressing a health
405
care preference; and
406
(b) may retain the capacity to appoint an agent and complete Part I of the form created
407
in Section
75-2a-116
.
408
(3) The following factors shall be considered by a health care provider, attorney, or
409
court when determining whether an individual described in Subsection (2)(b) has retained the
410
capacity to appoint an agent:
411
(a) whether the individual has expressed over time an intent to appoint the same person
412
as agent;
413
(b) whether the choice of agent is consistent with past relationships and patterns of
414
behavior between the individual and the prospective agent, or, if inconsistent, whether there is
415
a reasonable justification for the change; and
416
(c) whether the individual's expression of the intent to appoint the agent occurs at times
417
when, or in settings where, the individual has the greatest ability to make and communicate
418
decisions.
419
Section 7.
Section
75-2a-1105.5
is enacted to read:
420
75-2a-1105.5. Emergency medical services -- Physician order to withhold life
421
sustaining procedures.
422
(1) (a) The following persons may direct an emergency medical service provider
423
licensed or certified under Title 26, Chapter 8a, Utah Emergency Medical Services System Act,
424
who responds to a call to provide emergency medical services as defined in Section
26-8a-102
,
425
to withhold all life sustaining procedures:
426
(i) an individual over the age of 18;
427
(ii) an emancipated minor; or
428
(iii) the following person, if the person has a physician's order to withhold life
429
sustaining procedures that is issued in compliance with this section:
430
(A) a parent or legal guardian of a minor;
431
(B) a legal guardian appointed for an individual; or
432
(C) a surrogate.
433
(b) A person described in Subsection (1)(a)(iii) may direct an emergency service
434
provider to withhold life sustaining procedures if the person has a physician's order:
435
(i) made in compliance with Subsection (4); and
436
(ii) based on two physicians certifying that in their clinical judgment an order to
437
withhold life sustaining treatment is in the best interest of the individual.
438
(c) The physician order is binding upon emergency medical services providers only if
439
the physician order is in compliance with Subsections (2) and (4).
440
(2) (a) The Department of Health shall by administrative rule establish a uniform
441
system to allow emergency medical service providers to readily identify persons who have
442
obtained a physician order under this section.
443
(b) The system may provide for:
444
(i) personal, tamper-proof identifying bracelets;
445
(ii) forms;
446
(iii) the presence of the physician's orders on a form in compliance with Subsection (4)
447
and approved by the Department of Health; or
448
(iv) some other system approved by the Department of Health which clearly identifies
449
the individual as one who has a continued intent to be readily identified as a person with a
450
physician's order to withhold life support.
451
(3) An emergency medical services provider is not bound to act in accordance with a
452
physician order issued under this section unless the physician order complies with the
453
administrative rules adopted by the Department of Health in accordance with this section.
454
(4) A physician order made under this section shall be:
455
(a) in writing and on a form approved by the Department of Health;
456
(b) signed by:
457
(i) the declarant;
458
(ii) a person in the declarant's presence and by the declarant's expressed direction;
459
(iii) the parent or legal guardian of a minor; or
460
(iv) if the declarant does not have the ability to give current directions concerning the
461
declarant's care and treatment, the surrogate or class of surrogates with the highest priority
462
under Section
75-2a-1110
;
463
(c) dated;
464
(d) signed, completed, and certified by the declarant's physician;
465
(e) signed pursuant to Subsection (4)(b); and
466
(f) if for a minor, in compliance with Subsection (1)(b).
467
(5) A physician order made under this section takes precedence over a directive made
468
under Section
75-2a-1106
, but only to the extent of a conflict.
469
(6) An individual who wishes to revoke a physician order made under this section may
470
do so by:
471
(a) orally informing emergency service personnel;
472
(b) writing "void" across the form, or burning, tearing, or otherwise destroying or
473
defacing the document, bracelet, or other evidence of the physician order, or by asking another
474
person to do the same on the individual's behalf;
475
(c) signing or directing another person to sign a written revocation on the individual's
476
behalf;
477
(d) stating that the individual wishes to revoke the order in the presence of a witness
478
who is age 18 or older; or
479
(e) signing a new physician order.
480
(7) (a) The Department of Health shall adopt rules in accordance with Title 63, Chapter
481
46a, Utah Administrative Rulemaking Act, to:
482
(i) create the forms and systems required by Subsections (2) and (4); and
483
(ii) develop uniform instructions for the form established in Section
75-2a-1116
.
484
(b) The Department of Health may assist others with training of health care
485
professionals regarding this chapter.
486
Section 8.
Section
75-2a-1106
is enacted to read:
487
75-2a-1106. Advanced health care directive -- Appointment of agent -- Powers of
488
agent -- Health care directions.
489
(1) (a) An individual may make an advanced health care directive, in which the
490
individual may:
491
(i) appoint a health care agent or choose not to appoint a health care agent;
492
(ii) give directions for the care of the individual after the individual loses health care
493
decision making capacity or chooses not to give directions;
494
(iii) state conditions that must be met before life sustaining treatment may be withheld
495
or withdrawn;
496
(iv) authorize an agent to consent to the individual's participation in medical research;
497
(v) nominate a guardian;
498
(vi) authorize an agent to consent to organ donation;
499
(vii) expand or limit the powers of a health care agent; and
500
(viii) designate the agent's access to the individual's medical records.
501
(b) An advanced health care directive may be oral or written.
502
(c) An advanced health care directive shall be witnessed by an individual who is not:
503
(i) the person who signed the directive on behalf of the declarant;
504
(ii) related to the declarant by blood or marriage;
505
(iii) entitled to any portion of the declarant's estate according to the laws of intestate
506
succession of this state or under any will or codicil of the declarant;
507
(iv) directly financially responsible for the declarant's medical care;
508
(v) a health care provider who is providing care to the declarant or an administrator at a
509
health care facility in which the declarant is receiving care; or
510
(vi) the appointed agent.
511
(d) The witness to an oral advanced health care directive shall state the circumstances
512
under which the directive was made.
513
(2) Unless otherwise directed in a health care directive, the authority of an agent:
514
(a) is effective only after a health care provider makes a determination of incapacity as
515
provided in Section
75-2a-1104
;
516
(b) remains in effect during any period of time in which the declarant lacks capacity to
517
appoint an agent or make health care decisions; and
518
(c) ceases to be effective when:
519
(i) a declarant disqualifies an agent or revokes the health care directive;
520
(ii) a health care provider finds that the declarant has health care decision making
521
capacity;
522
(iii) a court issues an order invalidating a health care directive or the application of the
523
health care directive; or
524
(iv) the individual has contested the determination of incapacity under the provisions
525
of Subsection
75-2a-1104
(3).
526
(3) An agent appointed under the provisions of this section may not be a health care
527
provider for the declarant, or an owner, operator, or employee of the health care facility at
528
which the declarant is receiving care unless the agent is related to the declarant by blood,
529
marriage, or adoption.
530
(4) If the declarant does not specify the agent's access to medical records in an
531
advanced health care directive, the agent's access to medical records is governed by Section
532
75-2a-1112
.
533
(5) An agent appointed by an individual is not subject to civil or criminal liability or to
534
claims of unprofessional conduct for health care decisions made in accordance with Section
535
75-2a-1109
and made in good faith.
536
Section 9.
Section
75-2a-1107
is enacted to read:
537
75-2a-1107. Default surrogates.
538
(1) (a) Any member of the class of people described in Subsection (1)(b) may act as an
539
individual's surrogate health care decision maker if:
540
(i) the appointed agent or court-appointed guardian is absent or not reasonably
541
available; and
542
(ii) the member of the class described in Subsection (1)(b) is:
543
(A) over 18 years of age;
544
(B) has health care decision making capacity;
545
(C) is reasonably available; and
546
(D) has not been disqualified by the individual.
547
(b) The following classes of the individual's family, in descending order of priority,
548
may act as the individual's surrogate:
549
(i) the individual's spouse, unless:
550
(A) divorced or legally separated from the individual; or
551
(B) a court finds that the spouse has acted in a manner that should preclude the spouse
552
from having a priority position as a default surrogate;
553
(ii) a child;
554
(iii) a parent;
555
(iv) a sibling;
556
(v) a grandparent; or
557
(vi) a grandchild.
558
(2) If the family members designated in Subsection (1)(b) are not reasonably available
559
to act as a surrogate decision maker, a person other than those designated in Subsection (1)
560
may act as a surrogate if the person:
561
(a) has health care decision making capacity;
562
(b) has exhibited special care and concern for the patient;
563
(c) is familiar with the patient's personal values; and
564
(d) is reasonably available to act as a surrogate.
565
(3) A surrogate shall communicate his assumption of authority as promptly as
566
practicable to the members of a class who:
567
(a) have an equal or higher priority; and
568
(b) can be readily contacted.
569
(4) A health care provider shall comply with the decision of a majority of the members
570
of a class who have communicated their views to the provider if:
571
(a) more than one member of a class assumes authority to act as default surrogate;
572
(b) the members of the class do not agree on a health care decision; and
573
(c) the health care provider is informed of the disagreement among the members of the
574
class.
575
(5) (a) An individual may at any time disqualify a default surrogate, including a
576
member of the individual's family, from acting as the individual's surrogate by:
577
(i) a signed writing;
578
(ii) personally informing a witness of the disqualification so long as the witness is not:
579
(A) related to the individual by blood or marriage;
580
(B) entitled to any portion of the declarant's estate according to the laws of intestate
581
succession of this state or under any will or codicil of the declarant;
582
(C) directly financially responsible for the declarant's medical care;
583
(D) a health care provider who is providing care to the declarant or an administrator at
584
a health care facility in which the declarant is receiving care; or
585
(E) an individual who would become a default surrogate after the disqualification; or
586
(iii) verbally informing the default surrogate of the disqualification.
587
(b) Disqualification of a default surrogate is effective even if the individual has been
588
determined to lack health care decision making capacity.
589
(6) If reasonable doubt exists regarding the status of an individual claiming the right to
590
act as a default surrogate, the health care provider may:
591
(a) require the person to provide a sworn statement giving facts and circumstances
592
reasonably sufficient to establish the claimed authority; or
593
(b) seek a ruling from the court under Section
75-2a-1119
.
594
(7) A health care provider may seek a ruling from a court pursuant to Section
595
75-2a-1119
if the health care provider has evidence that a surrogate is making decisions that
596
are inconsistent with the individual's wishes or preferences.
597
Section 10.
Section
75-2a-1108
is enacted to read:
598
75-2a-1108. Effect of current health care preferences -- When directive takes
599
effect.
600
(1) An individual with health care decision making capacity retains the right to make
601
health care decisions as long as the individual has health care decision making capacity as
602
defined in Section
75-2a-1103
. For purposes of this part, the inability to communicate through
603
speech does not mean that the individual lacks health care decision making capacity.
604
(2) An individual's current health care decisions, however expressed or indicated,
605
always supersede an individual's prior decisions or health care directives.
606
(3) An individual's health care directive takes effect only after the individual loses
607
health care decision making capacity or the individual grants current authority to an agent in
608
accordance with Section
75-2a-1106
.
609
Section 11.
Section
75-2a-1109
is enacted to read:
610
75-2a-1109. Surrogate decision making -- Scope of authority.
611
(1) A surrogate decision maker acting under the authority of either Section
75-2a-1106
612
or
75-2a-1107
shall make health care decisions in accordance with:
613
(a) the individual's current preferences, to the extent possible;
614
(b) the individual's written or oral health care directions, if any, unless the health care
615
directive indicates that the surrogate may override the individual's health care directions; and
616
(c) other wishes, preferences, and beliefs, to the extent known to the surrogate.
617
(2) If the surrogate does not know, and has no ability to know, the wishes or
618
preferences of the individual, the surrogate shall make a decision based upon an objective
619
determination of what is in the individual's best interest.
620
(3) A surrogate acting under authority of Sections
75-2a-1106
and
75-2a-1107
:
621
(a) may not admit the individual to a licensed health care facility for long-term
622
custodial placement other than for assessment, rehabilitative, or respite care without the
623
consent of the individual; and
624
(b) may make health care decisions, including decisions to terminate life sustaining
625
treatment for the individual in accordance with Subsections (1) and (2).
626
(4) A surrogate acting under authority of this section is not subject to civil or criminal
627
liability or claims of unprofessional conduct for surrogate health care decisions made in good
628
faith.
629
Section 12.
Section
75-2a-1110
is enacted to read:
630
75-2a-1110. Priority of decision makers.
631
The following is the order of priority of those authorized to make health care decisions
632
on behalf of an individual who lacks decision making capacity:
633
(1) a health care agent appointed by an individual under the provisions of Section
634
75-2a-1106
unless the agent has been disqualified by:
635
(a) the individual; or
636
(b) a court of law;
637
(2) a court-appointed guardian; or
638
(3) a default surrogate acting under authority of Section
75-2a-1107
.
639
Section 13.
Section
75-2a-1111
is enacted to read:
640
75-2a-1111. Decisions by guardian.
641
(1) A court-appointed guardian shall comply with the individual's advanced health care
642
directive and may not revoke the individual's advanced health care directive unless the court
643
expressly revokes the individual's directive.
644
(2) A health care decision of an agent takes precedence over that of a guardian, in the
645
absence of a court order to the contrary.
646
(3) Except as provided in Subsections (1) and (2), a health care decision made by a
647
guardian for the individual is effective without judicial approval.
648
(4) A guardian is not subject to civil or criminal liability or to claims of unprofessional
649
conduct for surrogate health care decision in accordance with Section
75-2a-1109
made in
650
good faith.
651
Section 14.
Section
75-2a-1112
is enacted to read:
652
75-2a-1112. Personal representative status.
653
A surrogate or a guardian appointed in compliance with this part, becomes a personal
654
representative for the individual under the Health Insurance Portability and Accountability Act
655
of 1996 when:
656
(1) the individual loses health care decision making capacity;
657
(2) the individual grants current authority to the surrogate in accordance with Section
658
75-2a-1106
either:
659
(a) in writing;
660
(b) orally; or
661
(c) by other expression before a witness who is not the surrogate or agent; or
662
(3) the court appoints a guardian authorized to make health care decisions on behalf of
663
the individual.
664
Section 15.
Section
75-2a-1113
is enacted to read:
665
75-2a-1113. Revocation of directive.
666
(1) An advanced directive may be revoked at any time by the declarant by:
667
(a) writing "void" across the document;
668
(b) obliterating, burning, tearing, or otherwise destroying or defacing the document in
669
any manner indicating an intent to revoke;
670
(c) instructing another to do one of the acts described in Subsection (1)(a) or (b);
671
(d) a written revocation of the directive signed and dated by:
672
(i) the declarant; or
673
(ii) a person:
674
(A) signing on behalf of the declarant; and
675
(B) acting at the direction of the declarant;
676
(e) an oral expression of an intent to revoke the directive in the presence of a witness
677
who is age 18 years or older and who is not:
678
(i) related to the declarant by blood or marriage;
679
(ii) entitled to any portion of the declarant's estate according to the laws of intestate
680
succession of this state or under any will or codicil of the declarant;
681
(iii) directly financially responsible for the declarant's medical care;
682
(iv) a health care provider who is providing care to the declarant or an administrator at
683
a health care facility in which the declarant is receiving care; or
684
(v) the person who will become agent or default surrogate after the revocation; or
685
(f) a decree of annulment, divorce, dissolution of marriage, or legal separation that
686
revokes the designation of a spouse as an agent, unless:
687
(i) otherwise specified in the decree; or
688
(ii) the declarant has affirmed the intent to retain the agent subsequent to the
689
annulment, divorce, or legal separation.
690
(2) An advanced health care directive that conflicts with an earlier advanced health
691
care directive revokes the earlier directive to the extent of the conflict.
692
Section 16.
Section
75-2a-1114
is enacted to read:
693
75-2a-1114. Notification to health care provider -- Obligations of health care
694
providers -- Liability.
695
(1) It is the responsibility of the declarant or surrogate, to the extent that the
696
responsibility is not assigned to a health care provider or health care facility by state or federal
697
law, to notify or provide for notification to a health care provider and a health care facility of:
698
(a) the existence of a health care directive;
699
(b) the revocation of a health care directive;
700
(c) the existence or revocation of appointment of an agent or default surrogate;
701
(d) the disqualification of a default surrogate; or
702
(e) the appointment or revocation of appointment of a guardian.
703
(2) (a) A health care provider or health care facility is not bound by a health care
704
directive, a revocation of a health care directive, or a disqualification of a surrogate until the
705
health care provider or health care facility know about the existence or revocation of the health
706
care directive, or the disqualification of the surrogate. There is no criminal or civil liability on
707
the part of any person for failing to act upon a health care directive or a revocation of a
708
directive, or disqualification of a surrogate unless that person has actual knowledge of the
709
health care directive, revocation of the directive, or disqualification of a surrogate.
710
(b) A health care provider and health care facility that is notified under Subsection (1)
711
shall include in the individual's medical record:
712
(i) the health care directive or a copy of it, a revocation of a health care directive, or a
713
disqualification of a surrogate; and
714
(ii) the date, time, and place in which any written or oral notice of the document
715
described in this Subsection (2)(b) is received.
716
(3) A health care provider or health care facility acting in good faith and in accordance
717
with generally accepted health care standards is not subject to civil or criminal liability or to
718
discipline for unprofessional conduct for:
719
(a) complying with a health care decision made by a surrogate apparently having
720
authority to make a health care decision for an individual, including a decision to withhold or
721
withdraw health care;
722
(b) declining to comply with a health care decision of a surrogate based on a belief that
723
the surrogate then lacked authority;
724
(c) declining to comply with a health care decision of an individual who lacks decision
725
making capacity;
726
(d) seeking a judicial determination under Section
75-2a-1119
of:
727
(i) the validity of a health care directive;
728
(ii) the validity of directions from a surrogate or guardian;
729
(iii) the decision making capacity of an individual who challenges a physician's finding
730
of incapacity; or
731
(iv) the authority of a guardian or surrogate; or
732
(e) complying with an advanced health care directive and assuming that the directive
733
was valid when made, and has not been revoked or terminated.
734
(4) (a) Health care providers and health care facilities shall:
735
(i) cooperate with a person authorized under this part to make written directives
736
concerning health care;
737
(ii) unless the provisions of Subsection (4)(b) apply, comply with:
738
(A) a health care decision of an individual; and
739
(B) a health care decision made by a surrogate then authorized to make health care
740
decisions for an individual, to the same extent as if the decision had been made by the
741
individual; and
742
(iii) before implementing a health care decision made by a surrogate, make a
743
reasonable attempt to communicate to the individual:
744
(A) the decision made; and
745
(B) the identity of the surrogate making the decision.
746
(b) A health care provider or health care facility may decline to comply with a health
747
care instruction or health care decision if:
748
(i) in the opinion of the health care provider:
749
(A) the individual lacks health care decision making capacity;
750
(B) the surrogate lacks health care decision making capacity;
751
(C) the health care provider has evidence that the surrogate's instructions are
752
inconsistent with the individual's health care instructions, or, for an individual who has always
753
lacked health care decision making capacity, that the surrogate's instructions are inconsistent
754
with the best interest of the individual; or
755
(D) there is reasonable doubt regarding the status of an individual claiming the right to
756
act as a default surrogate, in which case the health care provider shall comply with Subsection
757
75-2a-1107
(6); or
758
(ii) the health care provider declines to comply for reasons of conscience.
759
(c) A health care provider or health care facility that declines to comply with a health
760
care instruction in accordance with Subsection (4)(b) must:
761
(i) promptly inform the individual and any agent, surrogate, or guardian of the reason
762
for refusing to comply with the health care instruction;
763
(ii) make a good faith attempt to resolve the conflict; and
764
(iii) provide continuing care to the individual until the issue is resolved or until a
765
transfer can be made to a health care provider or health care facility that will implement the
766
requested instruction or decision.
767
(d) A health care provider or health care facility that declines to comply with a health
768
care instruction, after meeting the obligations set forth in Subsection (4)(c) may transfer the
769
individual to a health care provider or health care facility that will carry out the requested
770
health care decisions.
771
(e) A health care facility may decline for reasons of conscience under Subsection
772
(4)(b)(ii) if:
773
(i) the health care decision or instruction is contrary to a policy of the facility that is
774
expressly based on reasons of conscience;
775
(ii) the policy was timely communicated to the individual and the individual's
776
surrogate;
777
(iii) the facility promptly informs the individual, if possible, and any surrogate then
778
authorized to make decisions for the individual;
779
(iv) the facility provides continuing care to the individual until a transfer can be made
780
to a health care facility that will implement the requested instruction or decision; and
781
(v) unless the individual or surrogate then authorized to make health care decisions for
782
an individual refuses assistance, immediately make all reasonable efforts to assist in the
783
transfer of the individual to another health care facility that will carry out the instructions or
784
decisions.
785
(5) A health care provider and health care facility:
786
(a) may not require or prohibit the creation or revocation of an advanced health care
787
directive as a condition for providing health care; and
788
(b) shall comply with all state and federal laws governing advanced health care
789
directives.
790
Section 17.
Section
75-2a-1115
is enacted to read:
791
75-2a-1115. Presumption of validity of directive.
792
(1) A health care directive executed under this part is presumed valid and binding.
793
(2) Health care providers and health care facilities, in the absence of notice to the
794
contrary, shall presume that a declarant who executed a health care directive, whether or not in
795
the presence of a health care provider, had the required decision making capacity at the time the
796
declarant signed the directive. The fact a declarant executed a health care directive shall not be
797
construed as an indication that the declarant was suffering from mental illness or lacked
798
decision making capacity.
799
Section 18.
Section
75-2a-1116
is enacted to read:
800
75-2a-1116. Optional form.
801
(1) The form created in Subsection (2), or a substantially similar form is presumed
802
valid under this chapter.
803
(2) The following form is presumed valid under Subsection (1):
804
Utah Advanced Health Care Directive
805
(Pursuant to Section
75-2a-1116
)
806
Part I: Allows you to name another person to make health care decisions for you when you
807
cannot make decisions or speak for yourself.
808
Part II: Allows you to record your wishes about health care in writing.
809
Part III: Tells you how to revoke the form.
810
Part IV: Makes your directive legal.
811
__________________________________________________________________________
812
My Personal Information
813
Name: __________________________________________________ __________________
814
Street Address: _____________________________________________________________
815
City, State, Zip: ____________________________________________________________
816
Telephone: _________________________ Cell Phone: ____________________________
817
Birth date: _____________
818
____________________________________________________________________________
819
Part I: My Agent
820
A. No Agent
821
______ I do not want to choose an agent. Initial if you do not want to name an agent,
822
then go to Part II. Do not name an agent below. No individual, organization, family
823
member, health care provider, lawyer, or insurer should force you to name an agent.
824
B. My Agent
825
Agent's Name:
826
______________________________________________________________
827
Street Address:
828
______________________________________________________________
829
City, State, Zip:
830
______________________________________________________________
831
Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
832
C. Alternate Agent
833
Alternate Agent's Name:
834
______________________________________________________
835
Street Address:
836
______________________________________________________________
837
City, State, Zip:
838
______________________________________________________________
839
Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
840
D. Agent's Authority
841
If I cannot make decisions or speak for myself, my agent has the power to make any health care
842
decision I would have had the power to make, including:
843
Consent to, refuse, or withdraw any health care, including, but not limited to life sustaining
844
care, such as food and fluids by tube, use of antibiotics, CPR (cardiopulmonary resuscitation),
845
and dialysis, and mental health care, such as convulsive therapy and psychoactive medications.
846
Stop or not start health care that is keeping me alive or might extend my life.
847
Hire and fire health care providers.
848
Ask questions and get answers from health care providers.
849
Consent to admission or transfer to a health care provider or health care facility, including a
850
mental health facility, subject to the limits in Section E, below.
851
Get copies of my medical records.
852
Ask for consultations or second opinions.
853
E. Other Authority
854
My agent has the powers below ONLY IF I place my initials over "agree" next to the statement.
855
I authorize my agent to:
856
Agree _____ Disagree _____ Get copies of my medical records at any time, even when
857
I can speak for myself.
858
Agree _____ Disagree _____ Admit me to a licensed health care facility, such as a
859
hospital, nursing home, assisted living, or other congregate facility for long-term placement
860
other than convalescent or recuperative care, unless I agree to be admitted at that time.
861
F. I wish to limit or expand the powers of my health care agent as follows:
862
____________________________________________________________________________
863
____________________________________________________________________________
864
G. Nomination of Guardian
865
Agree _____ Disagree _____ By appointing an agent in this document, I intend to avoid
866
a court-supervised guardianship, if possible. If I need a court-appointed guardian, I want the
867
agent I have appointed in this form to be my guardian. If that agent cannot or will not act as
868
my guardian, I want my alternate agent to be my guardian.
869
H. Consent to Participate in Medical Research
870
Agree _____ Disagree _____ I authorize my agent to consent to my participation in
871
medical research or clinical trials, even if I may not benefit from the results.
872
I. Consent to Organ Donation
873
Agree _____ Disagree _____ My agent may consent to the donation of my organs for
874
the purpose of organ transplantation.
875
J. Agent's Authority to Override Expressed Wishes
876
Agree _____ Disagree _____ My agent may make decisions about health care that are
877
different from the instructions in Part II of this form.
878
__________________________________________________________________________
879
Part II: My Health Care Wishes
880
My current instructions to my health care providers should be followed, so long as I can make
881
health care decisions, even if the instructions appear to conflict with these or other advance
882
directives. My health care providers should always provide comfort measures and health care
883
to keep me as comfortable and functional and possible.
884
A. Health Care Instructions
885
Initial one of the following:
886
________ I choose to let my agent decide. I have chosen my agent carefully. I have
887
talked with my agent about my health care wishes. I trust that my agent will make the decision
888
about end-of-life care that I would want under the circumstances. Except as it is limited in
889
Section B, below, my agent's power includes the power to agree to stop or not start life
890
sustaining treatment, as described in Part I, Section D.
891
______ I want this instruction followed without condition.
892
Go to Section C. Do not check conditions in Section B.
893
______ I want this instruction followed only after the conditions in Section B are met.
894
______ I want to prolong life. Regardless of my condition or prognosis, I want my
895
health care providers to try to keep me alive as long as possible, within the limits of generally
896
accepted health care standards. Go to Section C. Do not check conditions in Section B.
897
______ I choose NOT to receive care for the purpose of prolonging life. I authorize
898
the withholding or withdrawal of life sustaining treatments, including, but not limited to food
899
and fluids by tube, use of antibiotics, CPR, or dialysis administered for the purpose of
900
extending my life. I do want comfort care and routine medical care that will keep me as
901
comfortable and functional as possible, even if such care may extend my life.
902
______ I want this instruction followed without condition. Go to Section C. Do not
903
check conditions in Section B.
904
______ I want this instruction followed only if the conditions in Section B are met.
905
______ I choose not to provide instructions about end-of-life care in this directive.
906
Go to Part III.
907
Comments:
908
____________________________________________________________________________
909
____________________________________________________________________________
910
____________________________________________________________________________
911
B. Conditions for Withdrawal of Life Sustaining Care
912
My health care team may withhold or withdraw life sustaining treatment based on this directive
913
or at the instruction of my agent or a default surrogate only if the conditions that I initial below
914
are met. If your wishes are without condition, do not complete this section.
915
Agree _____ Disagree _____ I have a progressive illness that will cause death.
916
Agree _____ Disagree _____ I am close to death and am unlikely to recover.
917
Agree _____ Disagree _____ I cannot communicate and it is unlikely that my condition
918
will improve.
919
Agree _____ Disagree _____ I do not recognize my friends or family and it is unlikely
920
that my condition will improve.
921
Agree _____ Disagree _____ I am in a persistent vegetative state.
922
Additional or Other Instructions:
923
____________________________________________________________________________
924
____________________________________________________________________________
925
Part III: Revoking My Directive
926
I may revoke this directive by:
927
1. Writing "void" across the form, or burning, tearing, or otherwise destroying or defacing the
928
document or asking another person to do the same on my behalf;
929
2. Signing or directing another person to sign a written revocation on my behalf;
930
3. Stating that I wish to revoke the directive in the presence of a witness who meets the
931
requirements of the witness in Part IV, below, and who will not be appointed as agent or
932
become a default surrogate when the directive is revoked; or
933
4. Signing a new directive. (If you sign more than one Advanced Health Care Directive, the
934
most recent one applies.)
935
Part IV: Making My Directive Legal
936
I sign this voluntarily. I understand the choices I have made. I declare that I am emotionally
937
and mentally able to make this directive.
938
Date: ____________________________________
939
Signature: ________________________________________________
940
I have witnessed the signing of this directive, and I am not:
941
1. Related to the declarant by blood or marriage;
942
2. Entitled to any portion of the declarant's estate according to the laws of intestate succession
943
of this state or under any will or codicil of the declarant;
944
3. Directly financially responsible for the declarant's medical care;
945
4. A health care provider who is providing care to the declarant or an administrator at a health
946
care facility in which the declarant is receiving care; or
947
5. The appointed agent.
948
Signature of Witness:
949
_________________________________________________________
950
Section 19.
Section
75-2a-1117
is enacted to read:
951
75-2a-1117. Illegal destruction or falsification of health care directive.
952
(1) A person is guilty of a class B misdemeanor if the person:
953
(a) willfully conceals, cancels, defaces, obliterates, or damages a health care directive
954
of another without the declarant's consent; or
955
(b) who falsifies or forges a revocation of the health care directive of another.
956
(2) A person is guilty of criminal homicide if:
957
(a) the person:
958
(i) falsifies or forges the health care directive of another; or
959
(ii) willfully conceals or withholds personal knowledge of:
960
(A) the revocation of a health care directive; or
961
(B) disqualification of a surrogate; and
962
(b) the actions described in Subsection (2)(a) cause a withholding or withdrawal of life
963
sustaining procedures contrary to the wishes of a declarant resulting in the death of the
964
declarant.
965
Section 20.
Section
75-2a-1118
is enacted to read:
966
75-2a-1118. Health care directive effect on insurance policies.
967
(1) If an individual makes a health care directive under this part, the health care
968
directive does not affect in any manner:
969
(a) the obligation of any life or medical insurance company regarding any policy of life
970
or medical insurance;
971
(b) the sale, procurement, or issuance of any policy of life or health insurance; or
972
(c) the terms of any existing policy.
973
(2) (a) Notwithstanding any terms of an insurance policy to the contrary, an insurance
974
policy is not legally impaired or invalidated in any manner by:
975
(i) withholding or withdrawing life sustaining procedures; or
976
(ii) following directions in a health care directive executed as provided in this part.
977
(b) Following health care instructions in a health care directive does not constitute
978
legal cause for failing to pay life or health insurance benefits. Death that occurs after following
979
the instructions of an advanced health care directive or a surrogate's instructions does not for
980
any purpose constitute a suicide or homicide or legally impair or invalidate a policy of
981
insurance or an annuity providing a death benefit.
982
(3) (a) The following may not require an individual to execute a directive under this
983
part as a condition for being insured for or receiving health care or life insurance contract
984
services:
985
(i) a health care provider;
986
(ii) a health care facility;
987
(iii) a health maintenance organization;
988
(iv) an insurer issuing disability, health, or life insurance;
989
(v) a self-insured employee welfare or benefit plan;
990
(vi) a nonprofit medical service corporation or mutual nonprofit hospital service
991
corporation; or
992
(v) any other person, firm, or entity.
993
(b) Nothing in this part:
994
(i) may be construed to require an insurer to insure risks otherwise considered by the
995
insurer as unsuitable;
996
(ii) is intended to impair or supersede any other legal right or legal responsibility which
997
an individual may have to effect the withholding or withdrawal of life sustaining procedures in
998
any lawful manner; or
999
(iii) creates any presumption concerning the intention of an individual who has not
1000
executed a health care directive.
1001
Section 21.
Section
75-2a-1119
is enacted to read:
1002
75-2a-1119. Judicial relief.
1003
A district court may enjoin or direct a health care decision, or order other equitable
1004
relief based on a petition filed by:
1005
(1) a patient;
1006
(2) an agent of a patient;
1007
(3) a guardian of a patient;
1008
(4) a default surrogate of a patient;
1009
(5) a health care provider of a patient;
1010
(6) a health care facility providing care for a patient; or
1011
(7) an individual who meets the requirements of Section
75-2a-1107
.
1012
Section 22.
Section
75-2a-1120
is enacted to read:
1013
75-2a-1120. Reciprocity.
1014
Unless otherwise provided in the health care directive:
1015
(1) a health care provider or health care facility may, in good faith, rely on any health
1016
care directive, power of attorney, or similar instrument:
1017
(a) executed in another state; or
1018
(b) prior to January 1, 2008, executed in this state under the provisions of Chapter 2,
1019
Part 11, Personal Choice and Living Will Act; and
1020
(2) the health care directive described in Subsection (1) is presumed to comply with the
1021
requirements of this part.
1022
Section 23.
Section
75-2a-1121
is enacted to read:
1023
75-2a-1121. Effect of act.
1024
The Advanced Health Care Directive Act created in this part does not:
1025
(1) create a presumption concerning the intention of an individual who has not made or
1026
who has revoked an advanced health care directive;
1027
(2) authorize mercy killing, assisted suicide, or euthanasia; and
1028
(3) authorize the provision, withholding, or withdrawal of health care, to the extent
1029
prohibited by the laws of this state.
1030
Section 24.
Section
75-2a-1122
is enacted to read:
1031
75-2a-1122. Pregnancy.
1032
A health care directive that provides for the withholding or withdrawal of life
1033
sustaining procedures has no force during the course of a declarant's pregnancy.
1034
Section 25.
Section
75-2a-1123
is enacted to read:
1035
75-2a-1123. Provisions cumulative with existing law.
1036
The provisions of this chapter are cumulative with existing law regarding an
1037
individual's right to consent or refuse to consent to medical treatment and do not impair any
1038
existing rights or responsibilities that a health care provider, an individual, including a minor or
1039
incapacitated individual, or an individual's family or surrogate may have in regard to the
1040
provision, withholding or withdrawal of life sustaining procedures under the common law or
1041
statutes of the state.
1042
Section 26.
Section
76-5-111
is amended to read:
1043
76-5-111. Abuse, neglect, or exploitation of a vulnerable adult -- Penalties.
1044
(1) As used in this section:
1045
(a) "Abandonment" means a knowing or intentional action or inaction, including
1046
desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
1047
vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
1048
medical or other health care.
1049
(b) "Abuse" means:
1050
(i) attempting to cause harm, intentionally or knowingly causing harm, or intentionally
1051
or knowingly placing another in fear of imminent harm;
1052
(ii) causing physical injury by knowing or intentional acts or omissions;
1053
(iii) unreasonable or inappropriate use of physical restraint, medication, or isolation
1054
that causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's
1055
orders or used as an unauthorized substitute for treatment, unless that conduct furthers the
1056
health and safety of the adult; or
1057
(iv) deprivation of life-sustaining treatment, except:
1058
(A) as provided in Title 75, Chapter [2] 2a, Part 11, [Personal Choice and Living Will]
1059
Advanced Health Care Directive Act; or
1060
(B) when informed consent, as defined in this section, has been obtained.
1061
(c) "Business relationship" means a relationship between two or more individuals or
1062
entities where there exists an oral or written agreement for the exchange of goods or services.
1063
(d) "Caretaker" means any person, entity, corporation, or public institution that
1064
assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
1065
supervision, medical or other health care, or other necessities. "Caretaker" includes a relative
1066
by blood or marriage, a household member, a person who is employed or who provides
1067
volunteer work, or a person who contracts or is under court order to provide care.
1068
(e) "Deception" means:
1069
(i) a misrepresentation or concealment:
1070
(A) of a material fact relating to services rendered, disposition of property, or use of
1071
property intended to benefit a vulnerable adult;
1072
(B) of the terms of a contract or agreement entered into with a vulnerable adult; or
1073
(C) relating to the existing or preexisting condition of any property involved in a
1074
contract or agreement entered into with a vulnerable adult; or
1075
(ii) the use or employment of any misrepresentation, false pretense, or false promise in
1076
order to induce, encourage, or solicit a vulnerable adult to enter into a contract or agreement.
1077
(f) "Elder adult" means a person 65 years of age or older.
1078
(g) "Endeavor" means to attempt or try.
1079
(h) "Exploitation" means the offense described in Subsection (4).
1080
(i) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
1081
psychological damage, physical injury, suffering, or distress inflicted knowingly or
1082
intentionally.
1083
(j) "Informed consent" means:
1084
(i) a written expression by the person or authorized by the person, stating that the
1085
person fully understands the potential risks and benefits of the withdrawal of food, water,
1086
medication, medical services, shelter, cooling, heating, or other services necessary to maintain
1087
minimum physical or mental health, and that the person desires that the services be withdrawn.
1088
A written expression is valid only if the person is of sound mind when the consent is given, and
1089
the consent is witnessed by at least two individuals who do not benefit from the withdrawal of
1090
services; or
1091
(ii) consent to withdraw food, water, medication, medical services, shelter, cooling,
1092
heating, or other services necessary to maintain minimum physical or mental health, as
1093
permitted by court order.
1094
(k) "Intimidation" means communication conveyed through verbal or nonverbal
1095
conduct which threatens deprivation of money, food, clothing, medicine, shelter, social
1096
interaction, supervision, health care, or companionship, or which threatens isolation or harm.
1097
(l) (i) "Isolation" means knowingly or intentionally preventing a vulnerable adult from
1098
having contact with another person by:
1099
(A) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
1100
contrary to the express wishes of the vulnerable adult, including communicating to a visitor
1101
that the vulnerable adult is not present or does not want to meet with or talk to the visitor,
1102
knowing that communication to be false;
1103
(B) physically restraining the vulnerable adult in order to prevent the vulnerable adult
1104
from meeting with a visitor; or
1105
(C) making false or misleading statements to the vulnerable adult in order to induce the
1106
vulnerable adult to refuse to receive communication from visitors or other family members.
1107
(ii) The term "isolation" does not include an act intended to protect the physical or
1108
mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
1109
instructions of a physician or other professional advisor of the vulnerable adult.
1110
(m) "Lacks capacity to consent" means an impairment by reason of mental illness,
1111
developmental disability, organic brain disorder, physical illness or disability, chronic use of
1112
drugs, chronic intoxication, short-term memory loss, or other cause to the extent that a
1113
vulnerable adult lacks sufficient understanding of the nature or consequences of decisions
1114
concerning the adult's person or property.
1115
(n) "Neglect" means:
1116
(i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
1117
care, or dental or other health care, or failure to provide protection from health and safety
1118
hazards or maltreatment;
1119
(ii) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
1120
with the degree of care that a reasonable person in a like position would exercise;
1121
(iii) a pattern of conduct by a caretaker, without the vulnerable adult's informed
1122
consent, resulting in deprivation of food, water, medication, health care, shelter, cooling,
1123
heating, or other services necessary to maintain the vulnerable adult's well being;
1124
(iv) intentional failure by a caretaker to carry out a prescribed treatment plan that
1125
results or could result in physical injury or physical harm; or
1126
(v) abandonment by a caretaker.
1127
(o) "Physical injury" includes damage to any bodily tissue caused by nontherapeutic
1128
conduct, to the extent that the tissue must undergo a healing process in order to be restored to a
1129
sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot
1130
be restored to a sound and healthy condition. "Physical injury" includes skin bruising, a
1131
dislocation, physical pain, illness, impairment of physical function, a pressure sore, bleeding,
1132
malnutrition, dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling,
1133
injury to any internal organ, or any other physical condition that imperils the health or welfare
1134
of the vulnerable adult and is not a serious physical injury as defined in this section.
1135
(p) "Position of trust and confidence" means the position of a person who:
1136
(i) is a parent, spouse, adult child, or other relative by blood or marriage of a vulnerable
1137
adult;
1138
(ii) is a joint tenant or tenant in common with a vulnerable adult;
1139
(iii) has a legal or fiduciary relationship with a vulnerable adult, including a
1140
court-appointed or voluntary guardian, trustee, attorney, or conservator; or
1141
(iv) is a caretaker of a vulnerable adult.
1142
(q) "Serious physical injury" means any physical injury or set of physical injuries that:
1143
(i) seriously impairs a vulnerable adult's health;
1144
(ii) was caused by use of a dangerous weapon as defined in Section
76-1-601
;
1145
(iii) involves physical torture or causes serious emotional harm to a vulnerable adult; or
1146
(iv) creates a reasonable risk of death.
1147
(r) "Sexual exploitation" means the production, distribution, possession, or possession
1148
with the intent to distribute material or a live performance depicting a nude or partially nude
1149
vulnerable adult who lacks the capacity to consent, for the purpose of sexual arousal of any
1150
person.
1151
(s) "Undue influence" occurs when a person uses the person's role, relationship, or
1152
power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear
1153
of a vulnerable adult, or uses the person's role, relationship, or power to gain control
1154
deceptively over the decision making of the vulnerable adult.
1155
(t) "Vulnerable adult" means an elder adult, or an adult 18 years of age or older who
1156
has a mental or physical impairment which substantially affects that person's ability to:
1157
(i) provide personal protection;
1158
(ii) provide necessities such as food, shelter, clothing, or medical or other health care;
1159
(iii) obtain services necessary for health, safety, or welfare;
1160
(iv) carry out the activities of daily living;
1161
(v) manage the adult's own resources; or
1162
(vi) comprehend the nature and consequences of remaining in a situation of abuse,
1163
neglect, or exploitation.
1164
(2) Under any circumstances likely to produce death or serious physical injury, any
1165
person, including a caretaker, who causes a vulnerable adult to suffer serious physical injury or,
1166
having the care or custody of a vulnerable adult, causes or permits that adult's person or health
1167
to be injured, or causes or permits a vulnerable adult to be placed in a situation where the
1168
adult's person or health is endangered, is guilty of the offense of aggravated abuse of a
1169
vulnerable adult as follows:
1170
(a) if done intentionally or knowingly, the offense is a second degree felony;
1171
(b) if done recklessly, the offense is third degree felony; and
1172
(c) if done with criminal negligence, the offense is a class A misdemeanor.
1173
(3) Under circumstances other than those likely to produce death or serious physical
1174
injury any person, including a caretaker, who causes a vulnerable adult to suffer harm, abuse,
1175
or neglect; or, having the care or custody of a vulnerable adult, causes or permits that adult's
1176
person or health to be injured, abused, or neglected, or causes or permits a vulnerable adult to
1177
be placed in a situation where the adult's person or health is endangered, is guilty of the offense
1178
of abuse of a vulnerable adult as follows:
1179
(a) if done intentionally or knowingly, the offense is a class A misdemeanor;
1180
(b) if done recklessly, the offense is a class B misdemeanor; and
1181
(c) if done with criminal negligence, the offense is a class C misdemeanor.
1182
(4) (a) A person commits the offense of exploitation of a vulnerable adult when the
1183
person:
1184
(i) is in a position of trust and confidence, or has a business relationship, with the
1185
vulnerable adult or has undue influence over the vulnerable adult and knowingly, by deception
1186
or intimidation, obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds,
1187
credit, assets, or other property with the intent to temporarily or permanently deprive the
1188
vulnerable adult of the use, benefit, or possession of the adult's property, for the benefit of
1189
someone other than the vulnerable adult;
1190
(ii) knows or should know that the vulnerable adult lacks the capacity to consent, and
1191
obtains or uses, or endeavors to obtain or use, or assists another in obtaining or using or
1192
endeavoring to obtain or use, the vulnerable adult's funds, assets, or property with the intent to
1193
temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of his
1194
property for the benefit of someone other than the vulnerable adult;
1195
(iii) unjustly or improperly uses or manages the resources of a vulnerable adult for the
1196
profit or advantage of someone other than the vulnerable adult;
1197
(iv) unjustly or improperly uses a vulnerable adult's power of attorney or guardianship
1198
for the profit or advantage of someone other than the vulnerable adult;
1199
(v) involves a vulnerable adult who lacks the capacity to consent in the facilitation or
1200
furtherance of any criminal activity; or
1201
(vi) commits sexual exploitation of a vulnerable adult.
1202
(b) A person is guilty of the offense of exploitation of a vulnerable adult as follows:
1203
(i) if done intentionally or knowingly and the aggregate value of the resources used or
1204
the profit made is or exceeds $5,000, the offense is a second degree felony;
1205
(ii) if done intentionally or knowingly and the aggregate value of the resources used or
1206
the profit made is less than $5,000 or cannot be determined, the offense is a third degree
1207
felony;
1208
(iii) if done recklessly, the offense is a class A misdemeanor; or
1209
(iv) if done with criminal negligence, the offense is a class B misdemeanor.
1210
(5) It does not constitute a defense to a prosecution for any violation of this section that
1211
the accused did not know the age of the victim.
1212
(6) An adult is not considered abused, neglected, or a vulnerable adult for the reason
1213
that the adult has chosen to rely solely upon religious, nonmedical forms of healing in lieu of
1214
medical care.
1215
Section 27. Repealer.
1216
This bill repeals:
1217
Section 75-2-1101, Short title.
1218
Section 75-2-1102, Intent statement.
1219
Section 75-2-1103, Definitions.
1220
Section 75-2-1104, Directive for medical services.
1221
Section 75-2-1105, Directive for medical services after injury or illness is incurred.
1222
Section 75-2-1105.5, Emergency medical services -- Directive not to resuscitate.
1223
Section 75-2-1106, Special power of attorney.
1224
Section 75-2-1107, Medical services for terminal persons without a directive.
1225
Section 75-2-1108, Current desires of declarant.
1226
Section 75-2-1109, Pregnancy.
1227
Section 75-2-1110, Notification to physician.
1228
Section 75-2-1111, Revocation of directive.
1229
Section 75-2-1112, Physician compliance with directive.
1230
Section 75-2-1113, Presumption of validity of directive.
1231
Section 75-2-1114, Physician liability for compliance with directive.
1232
Section 75-2-1115, Illegal destruction or falsification of directive.
1233
Section 75-2-1116, Compliance with directive is not suicide.
1234
Section 75-2-1117, No insurance or health care provider may require a directive.
1235
Section 75-2-1118, Directive not mercy killing.
1236
Section 75-2-1119, Reciprocity.
1237
Section 28. Effective date.
1238
This bill takes effect on January 1, 2008.
Legislative Review Note
as of 1-24-07 10:23 AM