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First Substitute S.B. 75
Senator Allen M. Christensen proposes the following substitute bill:
1
ADVANCE HEALTH CARE DIRECTIVE ACT
2
2007 GENERAL SESSION
3
STATE OF UTAH
4
Chief Sponsor: Allen M. Christensen
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House Sponsor:
____________
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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 Advance
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Health Care Directive Act.
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Highlighted Provisions:
12
This bill:
13
. establishes legislative intent;
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. defines terms;
15
. gives preference to current health care decisions;
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. creates a presumption that an individual has capacity to make health care decisions
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and appoint an agent;
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. establishes:
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. powers of a health care agent;
20
. surrogate decision makers when an agent is not available;
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. scope of surrogate powers;
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. 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;
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. 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;
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. establishes the duties of a health care provider and a health care facility regarding
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implementing a health care directive;
31
. creates a presumption of validity of health care directives;
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. creates a presumptive statutory form for health care directives;
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. prohibits the illegal destruction or forgery of a health care directive;
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. prohibits a life or health insurer from:
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. denying benefits under a policy because an individual signed a health insurance
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directive which authorizes the withdrawal of life support; or
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. requiring an individual to create a health care directive in order to be insured;
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and
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. provides for reciprocity for health care directives or similar documents from other
40
states.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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This bill takes effect on January 1, 2008.
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Utah Code Sections Affected:
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AMENDS:
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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
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75-2a-1102, Utah Code Annotated 1953
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75-2a-1103, Utah Code Annotated 1953
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75-2a-1104, Utah Code Annotated 1953
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75-2a-1105, Utah Code Annotated 1953
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75-2a-1105.5, Utah Code Annotated 1953
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75-2a-1106, Utah Code Annotated 1953
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75-2a-1107, Utah Code Annotated 1953
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75-2a-1108, Utah Code Annotated 1953
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75-2a-1109, Utah Code Annotated 1953
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75-2a-1110, Utah Code Annotated 1953
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75-2a-1111, Utah Code Annotated 1953
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75-2a-1112, Utah Code Annotated 1953
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75-2a-1113, Utah Code Annotated 1953
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75-2a-1114, Utah Code Annotated 1953
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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
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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
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75-2-1103, as last amended by Chapter 129, Laws of Utah 1993
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75-2-1104, as last amended by Chapter 129, Laws of Utah 1993
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75-2-1105, as last amended by Chapter 129, Laws of Utah 1993
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75-2-1105.5, as last amended by Chapter 141, Laws of Utah 1999
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75-2-1106, as last amended by Chapter 129, Laws of Utah 1993
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75-2-1107, as last amended by Chapter 129, Laws of Utah 1993
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75-2-1108, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1109, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1110, as enacted by Chapter 173, Laws of Utah 1985
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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
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75-2-1118, as enacted by Chapter 173, Laws of Utah 1985
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75-2-1119, as enacted by Chapter 129, Laws of Utah 1993
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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:
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62A-3-301. Definitions.
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As used in this part:
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(1) "Abandonment" means any knowing or intentional action or inaction, including
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desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
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vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
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medical or other health care.
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(2) "Abuse" means:
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(a) attempting to cause harm, intentionally or knowingly causing harm, or intentionally
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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
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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
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health and safety of the adult;
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(c) emotional or psychological abuse;
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(d) sexual offense as described in Title 76, Chapter 5, Offenses Against the Person; or
113
(e) deprivation of life sustaining treatment, except:
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(i) as provided in Title 75, Chapter [2] 2a, Part 11, [Personal Choice and Living Will]
115
Advance Health Care Directive Act; or
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(ii) when informed consent, as defined in Section
76-5-111
, has been obtained.
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(3) "Adult" means a person who is 18 years of age or older.
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(4) "Adult protection case file" means documents and information contained in the file
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maintained by Adult Protective Services on a particular case, including any report or other
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notification received by the division or Adult Protective Services.
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(5) "Adult Protective Services" means the unit within the division responsible to
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investigate abuse, neglect, and exploitation of vulnerable adults and provide appropriate
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protective services.
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(6) "Caretaker" means any person, entity, corporation, or public institution that
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assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
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supervision, medical or other health care, or other necessities. "Caretaker" includes a relative
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by blood or marriage, a household member, a person who is employed or who provides
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volunteer work, or a person who contracts or is under court order to provide care.
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(7) "Counsel" means an attorney licensed to practice law in this state.
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(8) "Elder abuse" means abuse, neglect, or exploitation of an elder adult.
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(9) "Elder adult" means a person 65 years of age or older.
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(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
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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
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nonverbal conduct directed at a vulnerable adult including ridiculing, intimidating, yelling,
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swearing, threatening, isolating, coercing, harassing, or other forms of intimidating behavior
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that results or could result in the vulnerable adult suffering mental anguish or emotional
140
distress, including fear, humiliation, degradation, agitation, confusion, or isolation.
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(12) "Exploitation" means the offense described in Subsection
76-5-111
(4).
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(13) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
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psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
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knowingly or intentionally.
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(14) "Intimidation" means communication through verbal or nonverbal conduct which
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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.
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(15) (a) "Isolation" means knowingly or intentionally preventing a vulnerable adult
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from having contact with another person by:
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(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
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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;
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(ii) physically restraining the vulnerable adult in order to prevent the vulnerable adult
155
from meeting with a visitor; or
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(iii) making false or misleading statements to the vulnerable adult in order to induce
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the vulnerable adult to refuse to receive communication from visitors or other family members.
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(b) The term "isolation" does not include an act intended to protect the physical or
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mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
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instructions of a physician or other professional advisor of the vulnerable adult.
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(16) "Lacks capacity to consent" has the meaning as provided in Section
76-5-111
.
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(17) "Neglect" means:
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(a) (i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
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care, or dental, medical, or other health care; or
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(ii) failure to provide protection from health and safety hazards or maltreatment;
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(b) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
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with the degree of care that a reasonable person in a like position would exercise;
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(c) a pattern of conduct by a caretaker, without the vulnerable adult's informed consent,
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resulting in deprivation of food, water, medication, health care, shelter, cooling, heating, or
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other services necessary to maintain the vulnerable adult's well being;
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(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;
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(e) self-neglect by the vulnerable adult; or
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(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
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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
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been established under the provisions of this chapter.
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(20) "Protective services" means any services provided by Adult Protective Services to
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a vulnerable adult, either with the consent of the vulnerable adult or the vulnerable adult's
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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:
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(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
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(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
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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
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of the evidence, that there is a reasonable basis to conclude that abuse, neglect, or exploitation
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occurred, regardless of whether there is an identified perpetrator or current need for protective
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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,
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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
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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:
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Part 11. Advance Health Care Directive Act
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75-2a-1101. Title.
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This part is known as the "Advance Health Care Directive Act."
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Section 3.
Section
75-2a-1102
is enacted to read:
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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 life;
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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
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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
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(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
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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
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the health care system;
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(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;
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(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
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(iv) the surrogate's understanding of what the individual would have wanted under the
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circumstances; and
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(e) surrogate decisions made on behalf of an individual who has never had health care
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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.
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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 advance health care directive to make
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health care decisions for the declarant.
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(2) "Best interest" means that the benefits to the individual resulting from a treatment
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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;
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(b) the degree of physical pain or discomfort caused to the individual by the treatment
272
or the withholding or withdrawal of treatment;
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(c) the degree to which the individual's medical condition, the treatment, or the
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withholding or withdrawal of treatment, result in a severe and continuing impairment of the
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dignity of the individual by subjecting the individual to humiliation and dependency;
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(d) the effect of the treatment on the life expectancy of the individual;
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(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
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withdrawal of treatment; and
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(g) the religious beliefs and basic values of the individual receiving treatment, to the
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extent these may assist the decision maker in determining the best interest.
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(3) "Capacity to appoint an agent" means that the individual understands the
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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:
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(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.
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(6) "Generally accepted health care standards":
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(a) is defined only for the purpose of:
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(i) this part and does not define the standard of care for any other purpose under Utah
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law; and
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(ii) enabling health care providers to interpret the statutory form set forth in Section
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75-2a-1116
; and
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(b) means the standard of care that justifies a provider in declining to provide life
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sustaining or life supporting care because the proposed life sustaining care:
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(i) will not prevent or reduce the deterioration in the health or functional status of an
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individual;
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(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
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individual.
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(7) "Guardian" means a court-appointed guardian.
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(8) "Health care" means any care, treatment, service, or procedure to improve,
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maintain, diagnose, or otherwise affect an individual's physical or mental condition.
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(9) "Health care decision":
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(a) means a decision about an individual's health care made by an individual or the
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individual's surrogate, that is communicated to a health care provider;
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(b) includes:
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(i) selection and discharge of a health care provider and a health care facility;
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(ii) approval or disapproval of diagnostic tests, procedures, programs of medication,
312
and orders not to resuscitate; and
313
(iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and
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all other forms of health care; and
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(c) does not include decisions about the individual's financial affairs or social
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interactions other than as indirectly affected by the health care decision.
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(10) "Health care decision making capacity" means an individual's ability to make an
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informed decision about receiving or refusing health care, including:
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(a) the ability to understand the nature, extent, or probable consequences of the health
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care;
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(b) the ability to make a rational evaluation of the burdens, risks, benefits, and
322
alternatives to the proposed health care; and
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(c) the ability to communicate a decision.
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(11) "Health care directive":
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(a) includes:
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(i) a designation of an agent to make health care decisions for an individual when the
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individual cannot make or communicate health care decisions; or
328
(ii) an expression of preferences about health care decisions; and
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(b) may take one of the following forms:
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(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.
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(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 advance 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 advance 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 advance 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) for a minor, based on two physicians certifying that in their clinical judgment an
437
order to 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 licensed health care professional,
465
acting within the scope of practice;
466
(e) signed pursuant to Subsection (4)(b); and
467
(f) if for a minor, in compliance with Subsection (1)(b).
468
(5) A physician order made under this section takes precedence over a directive made
469
under Section
75-2a-1106
, but only to the extent of a conflict.
470
(6) An individual who wishes to revoke a physician order made under this section may
471
do so by:
472
(a) orally informing emergency service personnel;
473
(b) writing "void" across the form, or burning, tearing, or otherwise destroying or
474
defacing the document, bracelet, or other evidence of the physician order, or by asking another
475
person to do the same on the individual's behalf;
476
(c) signing or directing another person to sign a written revocation on the individual's
477
behalf;
478
(d) stating that the individual wishes to revoke the order in the presence of a witness
479
who is age 18 or older; or
480
(e) signing a new physician order.
481
(7) (a) The Department of Health shall adopt rules in accordance with Title 63, Chapter
482
46a, Utah Administrative Rulemaking Act, to:
483
(i) create the forms and systems required by Subsections (2) and (4); and
484
(ii) develop uniform instructions for the form established in Section
75-2a-1116
.
485
(b) The Department of Health may assist others with training of health care
486
professionals regarding this chapter.
487
Section 8.
Section
75-2a-1106
is enacted to read:
488
75-2a-1106. Advance health care directive -- Appointment of agent -- Powers of
489
agent -- Health care directions.
490
(1) (a) An individual may make an advance health care directive, in which the
491
individual may:
492
(i) appoint a health care agent or choose not to appoint a health care agent;
493
(ii) give directions for the care of the individual after the individual loses health care
494
decision making capacity or chooses not to give directions;
495
(iii) state conditions that must be met before life sustaining treatment may be withheld
496
or withdrawn;
497
(iv) authorize an agent to consent to the individual's participation in medical research;
498
(v) nominate a guardian;
499
(vi) authorize an agent to consent to organ donation;
500
(vii) expand or limit the powers of a health care agent; and
501
(viii) designate the agent's access to the individual's medical records.
502
(b) An advance health care directive may be oral or written.
503
(c) An advance health care directive shall be witnessed by an individual who is not:
504
(i) the person who signed the directive on behalf of the declarant;
505
(ii) related to the declarant by blood or marriage;
506
(iii) entitled to any portion of the declarant's estate according to the laws of intestate
507
succession of this state or under any will or codicil of the declarant;
508
(iv) directly financially responsible for the declarant's medical care;
509
(v) a health care provider who is providing care to the declarant or an administrator at a
510
health care facility in which the declarant is receiving care; or
511
(vi) the appointed agent.
512
(d) The witness to an oral advance health care directive shall state the circumstances
513
under which the directive was made.
514
(2) Unless otherwise directed in a health care directive, the authority of an agent:
515
(a) is effective only after a health care provider makes a determination of incapacity as
516
provided in Section
75-2a-1104
;
517
(b) remains in effect during any period of time in which the declarant lacks capacity to
518
appoint an agent or make health care decisions; and
519
(c) ceases to be effective when:
520
(i) a declarant disqualifies an agent or revokes the health care directive;
521
(ii) a health care provider finds that the declarant has health care decision making
522
capacity;
523
(iii) a court issues an order invalidating a health care directive or the application of the
524
health care directive; or
525
(iv) the individual has contested the determination of incapacity under the provisions
526
of Subsection
75-2a-1104
(3).
527
(3) An agent appointed under the provisions of this section may not be a health care
528
provider for the declarant, or an owner, operator, or employee of the health care facility at
529
which the declarant is receiving care unless the agent is related to the declarant by blood,
530
marriage, or adoption.
531
(4) If the declarant does not specify the agent's access to medical records in an advance
532
health care directive, the agent's access to medical records is governed by Section
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, however an individual in a lower priority class has no
549
rights to direct an individual's care if a member of a higher priority class is able and willing to
550
act as surrogate:
551
(i) the individual's spouse, unless:
552
(A) divorced or legally separated from the individual; or
553
(B) a court finds that the spouse has acted in a manner that should preclude the spouse
554
from having a priority position as a default surrogate;
555
(ii) a child;
556
(iii) a parent;
557
(iv) a sibling;
558
(v) a grandparent; or
559
(vi) a grandchild.
560
(2) If the family members designated in Subsection (1)(b) are not reasonably available
561
to act as a surrogate decision maker, a person other than those designated in Subsection (1)
562
may act as a surrogate if the person:
563
(a) has health care decision making capacity;
564
(b) has exhibited special care and concern for the patient;
565
(c) is familiar with the patient's personal values; and
566
(d) is reasonably available to act as a surrogate.
567
(3) A surrogate shall communicate his assumption of authority as promptly as
568
practicable to the members of a class who:
569
(a) have an equal or higher priority; and
570
(b) can be readily contacted.
571
(4) A health care provider shall comply with the decision of a majority of the members
572
of a class who have communicated their views to the provider if:
573
(a) more than one member of a class assumes authority to act as default surrogate;
574
(b) the members of the class do not agree on a health care decision; and
575
(c) the health care provider is informed of the disagreement among the members of the
576
class.
577
(5) (a) An individual may at any time disqualify a default surrogate, including a
578
member of the individual's family, from acting as the individual's surrogate by:
579
(i) a signed writing;
580
(ii) personally informing a witness of the disqualification so long as the witness is not:
581
(A) related to the individual by blood or marriage;
582
(B) entitled to any portion of the declarant's estate according to the laws of intestate
583
succession of this state or under any will or codicil of the declarant;
584
(C) directly financially responsible for the declarant's medical care;
585
(D) a health care provider who is providing care to the declarant or an administrator at
586
a health care facility in which the declarant is receiving care; or
587
(E) an individual who would become a default surrogate after the disqualification; or
588
(iii) verbally informing the default surrogate of the disqualification.
589
(b) Disqualification of a default surrogate is effective even if the individual has been
590
determined to lack health care decision making capacity.
591
(6) If reasonable doubt exists regarding the status of an individual claiming the right to
592
act as a default surrogate, the health care provider may:
593
(a) require the person to provide a sworn statement giving facts and circumstances
594
reasonably sufficient to establish the claimed authority; or
595
(b) seek a ruling from the court under Section
75-2a-1119
.
596
(7) A health care provider may seek a ruling from a court pursuant to Section
597
75-2a-1119
if the health care provider has evidence that a surrogate is making decisions that
598
are inconsistent with the individual's wishes or preferences.
599
Section 10.
Section
75-2a-1108
is enacted to read:
600
75-2a-1108. Effect of current health care preferences -- When directive takes
601
effect.
602
(1) An individual with health care decision making capacity retains the right to make
603
health care decisions as long as the individual has health care decision making capacity as
604
defined in Section
75-2a-1103
. For purposes of this part, the inability to communicate through
605
speech does not mean that the individual lacks health care decision making capacity.
606
(2) An individual's current health care decisions, however expressed or indicated,
607
always supersede an individual's prior decisions or health care directives.
608
(3) An individual's health care directive takes effect only after the individual loses
609
health care decision making capacity or the individual grants current authority to an agent in
610
accordance with Section
75-2a-1106
.
611
Section 11.
Section
75-2a-1109
is enacted to read:
612
75-2a-1109. Surrogate decision making -- Scope of authority.
613
(1) A surrogate decision maker acting under the authority of either Section
75-2a-1106
614
or
75-2a-1107
shall make health care decisions in accordance with:
615
(a) the individual's current preferences, to the extent possible;
616
(b) the individual's written or oral health care directions, if any, unless the health care
617
directive indicates that the surrogate may override the individual's health care directions; and
618
(c) other wishes, preferences, and beliefs, to the extent known to the surrogate.
619
(2) If the surrogate does not know, and has no ability to know, the wishes or
620
preferences of the individual, the surrogate shall make a decision based upon an objective
621
determination of what is in the individual's best interest.
622
(3) A surrogate acting under authority of Sections
75-2a-1106
and
75-2a-1107
:
623
(a) may not admit the individual to a licensed health care facility for long-term
624
custodial placement other than for assessment, rehabilitative, or respite care without the
625
consent of the individual; and
626
(b) may make health care decisions, including decisions to terminate life sustaining
627
treatment for the individual in accordance with Subsections (1) and (2).
628
(4) A surrogate acting under authority of this section is not subject to civil or criminal
629
liability or claims of unprofessional conduct for surrogate health care decisions made in good
630
faith.
631
Section 12.
Section
75-2a-1110
is enacted to read:
632
75-2a-1110. Priority of decision makers.
633
The following is the order of priority of those authorized to make health care decisions
634
on behalf of an individual who lacks decision making capacity:
635
(1) a health care agent appointed by an individual under the provisions of Section
636
75-2a-1106
unless the agent has been disqualified by:
637
(a) the individual; or
638
(b) a court of law;
639
(2) a court-appointed guardian; or
640
(3) a default surrogate acting under authority of Section
75-2a-1107
.
641
Section 13.
Section
75-2a-1111
is enacted to read:
642
75-2a-1111. Decisions by guardian.
643
(1) A court-appointed guardian shall comply with the individual's advance health care
644
directive and may not revoke the individual's advance health care directive unless the court
645
expressly revokes the individual's directive.
646
(2) A health care decision of an agent takes precedence over that of a guardian, in the
647
absence of a court order to the contrary.
648
(3) Except as provided in Subsections (1) and (2), a health care decision made by a
649
guardian for the individual is effective without judicial approval.
650
(4) A guardian is not subject to civil or criminal liability or to claims of unprofessional
651
conduct for surrogate health care decision in accordance with Section
75-2a-1109
made in
652
good faith.
653
Section 14.
Section
75-2a-1112
is enacted to read:
654
75-2a-1112. Personal representative status.
655
A surrogate or a guardian appointed in compliance with this part, becomes a personal
656
representative for the individual under the Health Insurance Portability and Accountability Act
657
of 1996 when:
658
(1) the individual loses health care decision making capacity;
659
(2) the individual grants current authority to the surrogate in accordance with Section
660
75-2a-1106
either:
661
(a) in writing;
662
(b) orally; or
663
(c) by other expression before a witness who is not the surrogate or agent; or
664
(3) the court appoints a guardian authorized to make health care decisions on behalf of
665
the individual.
666
Section 15.
Section
75-2a-1113
is enacted to read:
667
75-2a-1113. Revocation of directive.
668
(1) An advanced directive may be revoked at any time by the declarant by:
669
(a) writing "void" across the document;
670
(b) obliterating, burning, tearing, or otherwise destroying or defacing the document in
671
any manner indicating an intent to revoke;
672
(c) instructing another to do one of the acts described in Subsection (1)(a) or (b);
673
(d) a written revocation of the directive signed and dated by:
674
(i) the declarant; or
675
(ii) a person:
676
(A) signing on behalf of the declarant; and
677
(B) acting at the direction of the declarant;
678
(e) an oral expression of an intent to revoke the directive in the presence of a witness
679
who is age 18 years or older and who is not:
680
(i) related to the declarant by blood or marriage;
681
(ii) entitled to any portion of the declarant's estate according to the laws of intestate
682
succession of this state or under any will or codicil of the declarant;
683
(iii) directly financially responsible for the declarant's medical care;
684
(iv) a health care provider who is providing care to the declarant or an administrator at
685
a health care facility in which the declarant is receiving care; or
686
(v) the person who will become agent or default surrogate after the revocation; or
687
(f) a decree of annulment, divorce, dissolution of marriage, or legal separation that
688
revokes the designation of a spouse as an agent, unless:
689
(i) otherwise specified in the decree; or
690
(ii) the declarant has affirmed the intent to retain the agent subsequent to the
691
annulment, divorce, or legal separation.
692
(2) An advance health care directive that conflicts with an earlier advance health care
693
directive revokes the earlier directive to the extent of the conflict.
694
Section 16.
Section
75-2a-1114
is enacted to read:
695
75-2a-1114. Notification to health care provider -- Obligations of health care
696
providers -- Liability.
697
(1) It is the responsibility of the declarant or surrogate, to the extent that the
698
responsibility is not assigned to a health care provider or health care facility by state or federal
699
law, to notify or provide for notification to a health care provider and a health care facility of:
700
(a) the existence of a health care directive;
701
(b) the revocation of a health care directive;
702
(c) the existence or revocation of appointment of an agent or default surrogate;
703
(d) the disqualification of a default surrogate; or
704
(e) the appointment or revocation of appointment of a guardian.
705
(2) (a) A health care provider or health care facility is not bound by a health care
706
directive, a revocation of a health care directive, or a disqualification of a surrogate until the
707
health care provider or health care facility has received a copy of a directive or revocation of
708
the health care directive, or the disqualification of the surrogate. There is no criminal or civil
709
liability on the part of any person for failing to act upon a health care directive or a revocation
710
of a directive, or disqualification of a surrogate unless that person has actual knowledge of the
711
instructions in a health care directive, revocation of the directive, or disqualification of a
712
surrogate.
713
(b) A health care provider and health care facility that is notified under Subsection (1)
714
shall include in the individual's medical record:
715
(i) the health care directive or a copy of it, a revocation of a health care directive, or a
716
disqualification of a surrogate; and
717
(ii) the date, time, and place in which any written or oral notice of the document
718
described in this Subsection (2)(b) is received.
719
(3) A health care provider or health care facility acting in good faith and in accordance
720
with generally accepted health care standards is not subject to civil or criminal liability or to
721
discipline for unprofessional conduct for:
722
(a) complying with a health care decision made by a surrogate apparently having
723
authority to make a health care decision for an individual, including a decision to withhold or
724
withdraw health care;
725
(b) declining to comply with a health care decision of a surrogate based on a belief that
726
the surrogate then lacked authority;
727
(c) declining to comply with a health care decision of an individual who lacks decision
728
making capacity;
729
(d) seeking a judicial determination under Section
75-2a-1119
of:
730
(i) the validity of a health care directive;
731
(ii) the validity of directions from a surrogate or guardian;
732
(iii) the decision making capacity of an individual who challenges a physician's finding
733
of incapacity; or
734
(iv) the authority of a guardian or surrogate; or
735
(e) complying with an advance health care directive and assuming that the directive
736
was valid when made, and has not been revoked or terminated.
737
(4) (a) Health care providers and health care facilities shall:
738
(i) cooperate with a person authorized under this part to make written directives
739
concerning health care;
740
(ii) unless the provisions of Subsection (4)(b) apply, comply with:
741
(A) a health care decision of an individual; and
742
(B) a health care decision made by a surrogate then authorized to make health care
743
decisions for an individual, to the same extent as if the decision had been made by the
744
individual; and
745
(iii) before implementing a health care decision made by a surrogate, make a
746
reasonable attempt to communicate to the individual:
747
(A) the decision made; and
748
(B) the identity of the surrogate making the decision.
749
(b) A health care provider or health care facility may decline to comply with a health
750
care instruction or health care decision if:
751
(i) in the opinion of the health care provider:
752
(A) the individual lacks health care decision making capacity;
753
(B) the surrogate lacks health care decision making capacity;
754
(C) the health care provider has evidence that the surrogate's instructions are
755
inconsistent with the individual's health care instructions, or, for an individual who has always
756
lacked health care decision making capacity, that the surrogate's instructions are inconsistent
757
with the best interest of the individual; or
758
(D) there is reasonable doubt regarding the status of an individual claiming the right to
759
act as a default surrogate, in which case the health care provider shall comply with Subsection
760
75-2a-1107
(6); or
761
(ii) the health care provider declines to comply for reasons of conscience.
762
(c) A health care provider or health care facility that declines to comply with a health
763
care instruction in accordance with Subsection (4)(b) must:
764
(i) promptly inform the individual and any agent, surrogate, or guardian of the reason
765
for refusing to comply with the health care instruction;
766
(ii) make a good faith attempt to resolve the conflict; and
767
(iii) provide continuing care to the individual until the issue is resolved or until a
768
transfer can be made to a health care provider or health care facility that will implement the
769
requested instruction or decision.
770
(d) A health care provider or health care facility that declines to comply with a health
771
care instruction, after meeting the obligations set forth in Subsection (4)(c) may transfer the
772
individual to a health care provider or health care facility that will carry out the requested
773
health care decisions.
774
(e) A health care facility may decline for reasons of conscience under Subsection
775
(4)(b)(ii) if:
776
(i) the health care decision or instruction is contrary to a policy of the facility that is
777
expressly based on reasons of conscience;
778
(ii) the policy was timely communicated to the individual and the individual's
779
surrogate;
780
(iii) the facility promptly informs the individual, if possible, and any surrogate then
781
authorized to make decisions for the individual;
782
(iv) the facility provides continuing care to the individual until a transfer can be made
783
to a health care facility that will implement the requested instruction or decision; and
784
(v) unless the individual or surrogate then authorized to make health care decisions for
785
an individual refuses assistance, immediately make all reasonable efforts to assist in the
786
transfer of the individual to another health care facility that will carry out the instructions or
787
decisions.
788
(5) A health care provider and health care facility:
789
(a) may not require or prohibit the creation or revocation of an advance health care
790
directive as a condition for providing health care; and
791
(b) shall comply with all state and federal laws governing advance health care
792
directives.
793
Section 17.
Section
75-2a-1115
is enacted to read:
794
75-2a-1115. Presumption of validity of directive.
795
(1) A health care directive executed under this part is presumed valid and binding.
796
(2) Health care providers and health care facilities, in the absence of notice to the
797
contrary, shall presume that a declarant who executed a health care directive, whether or not in
798
the presence of a health care provider, had the required decision making capacity at the time the
799
declarant signed the directive. The fact a declarant executed a health care directive shall not be
800
construed as an indication that the declarant was suffering from mental illness or lacked
801
decision making capacity.
802
Section 18.
Section
75-2a-1116
is enacted to read:
803
75-2a-1116. Optional form.
804
(1) The form created in Subsection (2), or a substantially similar form is presumed
805
valid under this chapter.
806
(2) The following form is presumed valid under Subsection (1):
807
Utah Advance Health Care Directive
808
(Pursuant to Section
75-2a-1116
)
809
Part I: Allows you to name another person to make health care decisions for you when you
810
cannot make decisions or speak for yourself.
811
Part II: Allows you to record your wishes about health care in writing.
812
Part III: Tells you how to revoke the form.
813
Part IV: Makes your directive legal.
814
__________________________________________________________________________
815
My Personal Information
816
Name: __________________________________________________ __________________
817
Street Address: _____________________________________________________________
818
City, State, Zip: ____________________________________________________________
819
Telephone: _________________________ Cell Phone: ____________________________
820
Birth date: _____________
821
____________________________________________________________________________
822
Part I: My Agent
823
A. No Agent
824
______ I do not want to choose an agent. Initial if you do not want to name an agent,
825
then go to Part II. Do not name an agent below. No individual, organization, family
826
member, health care provider, lawyer, or insurer should force you to name an agent.
827
B. My Agent
828
Agent's Name:
829
______________________________________________________________
830
Street Address:
831
______________________________________________________________
832
City, State, Zip:
833
______________________________________________________________
834
Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
835
C. Alternate Agent
836
Alternate Agent's Name:
837
______________________________________________________
838
Street Address:
839
______________________________________________________________
840
City, State, Zip:
841
______________________________________________________________
842
Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
843
D. Agent's Authority
844
If I cannot make decisions or speak for myself, my agent has the power to make any health care
845
decision I would have had the power to make, including:
846
Consent to, refuse, or withdraw any health care, including, but not limited to life sustaining
847
care, such as food and fluids by tube, use of antibiotics, CPR (cardiopulmonary resuscitation),
848
and dialysis, and mental health care, such as convulsive therapy and psychoactive medications.
849
Stop or not start health care that is keeping me alive or might extend my life.
850
Hire and fire health care providers.
851
Ask questions and get answers from health care providers.
852
Consent to admission or transfer to a health care provider or health care facility, including a
853
mental health facility, subject to the limits in Section E, below.
854
Get copies of my medical records.
855
Ask for consultations or second opinions.
856
E. Other Authority
857
My agent has the powers below ONLY IF I place my initials over "agree" next to the statement.
858
I authorize my agent to:
859
Agree _____ Disagree _____ Get copies of my medical records at any time, even when
860
I can speak for myself.
861
Agree _____ Disagree _____ Admit me to a licensed health care facility, such as a
862
hospital, nursing home, assisted living, or other congregate facility for long-term placement
863
other than convalescent or recuperative care, unless I agree to be admitted at that time.
864
F. I wish to limit or expand the powers of my health care agent as follows:
865
____________________________________________________________________________
866
____________________________________________________________________________
867
G. Nomination of Guardian
868
Agree _____ Disagree _____ By appointing an agent in this document, I intend to avoid
869
a court-supervised guardianship, if possible. If I need a court-appointed guardian, I want the
870
agent I have appointed in this form to be my guardian. If that agent cannot or will not act as
871
my guardian, I want my alternate agent to be my guardian.
872
H. Consent to Participate in Medical Research
873
Agree _____ Disagree _____ I authorize my agent to consent to my participation in
874
medical research or clinical trials, even if I may not benefit from the results.
875
I. Consent to Organ Donation
876
Agree _____ Disagree _____ My agent may consent to the donation of my organs for
877
the purpose of organ transplantation.
878
J. Agent's Authority to Override Expressed Wishes
879
Agree _____ Disagree _____ My agent may make decisions about health care that are
880
different from the instructions in Part II of this form.
881
__________________________________________________________________________
882
Part II: My Health Care Wishes
883
My current instructions to my health care providers should be followed, so long as I can make
884
health care decisions, even if the instructions appear to conflict with these or other advance
885
directives. My health care providers should always provide comfort measures and health care
886
to keep me as comfortable and functional as possible.
887
A. Health Care Instructions
888
Initial one of the following:
889
________ I choose to let my agent decide. I have chosen my agent carefully. I have
890
talked with my agent about my health care wishes. I trust that my agent will make the decision
891
about end-of-life care that I would want under the circumstances. Except as it is limited in
892
Section B, below, my agent's power includes the power to agree to stop or not start life
893
sustaining treatment, as described in Part I, Section D.
894
______ I want this instruction followed without condition.
895
Go to Section C. Do not check conditions in Section B.
896
______ I want this instruction followed only after the conditions in Section B are met.
897
______ I want to prolong life. Regardless of my condition or prognosis, I want my
898
health care providers to try to keep me alive as long as possible, within the limits of generally
899
accepted health care standards. Go to Section C. Do not check conditions in Section B.
900
______ I choose NOT to receive care for the purpose of prolonging life. I authorize
901
the withholding or withdrawal of life sustaining treatments, including, but not limited to food
902
and fluids by tube, use of antibiotics, CPR, or dialysis administered for the purpose of
903
extending my life. I do want comfort care and routine medical care that will keep me as
904
comfortable and functional as possible, even if such care may extend my life.
905
______ I want this instruction followed without condition. Go to Section C. Do not
906
check conditions in Section B.
907
______ I want this instruction followed only if the conditions in Section B are met.
908
______ I choose not to provide instructions about end-of-life care in this directive.
909
Go to Part III.
910
Comments:
911
____________________________________________________________________________
912
____________________________________________________________________________
913
____________________________________________________________________________
914
B. Conditions for Withdrawal of Life Sustaining Care
915
My health care team may withhold or withdraw life sustaining treatment based on this directive
916
or at the instruction of my agent or a default surrogate only if the conditions that I initial below
917
are met. If your wishes are without condition, do not complete this section.
918
Agree _____ Disagree _____ I have a progressive illness that will cause death.
919
Agree _____ Disagree _____ I am close to death and am unlikely to recover.
920
Agree _____ Disagree _____ I cannot communicate and it is unlikely that my condition
921
will improve.
922
Agree _____ Disagree _____ I do not recognize my friends or family and it is unlikely
923
that my condition will improve.
924
Agree _____ Disagree _____ I am in a persistent vegetative state.
925
Additional or Other Instructions:
926
____________________________________________________________________________
927
____________________________________________________________________________
928
Part III: Revoking My Directive
929
I may revoke this directive by:
930
1. Writing "void" across the form, or burning, tearing, or otherwise destroying or defacing the
931
document or asking another person to do the same on my behalf;
932
2. Signing or directing another person to sign a written revocation on my behalf;
933
3. Stating that I wish to revoke the directive in the presence of a witness who meets the
934
requirements of the witness in Part IV, below, and who will not be appointed as agent or
935
become a default surrogate when the directive is revoked; or
936
4. Signing a new directive. (If you sign more than one Advance Health Care Directive, the
937
most recent one applies.)
938
Part IV: Making My Directive Legal
939
I sign this voluntarily. I understand the choices I have made. I declare that I am emotionally
940
and mentally able to make this directive.
941
Date: ____________________________________
942
Signature: ________________________________________________
943
I have witnessed the signing of this directive, and I am not:
944
1. Related to the declarant by blood or marriage;
945
2. Entitled to any portion of the declarant's estate according to the laws of intestate succession
946
of Utah or under any will or codicil of the declarant;
947
3. Directly financially responsible for the declarant's medical care;
948
4. A health care provider who is providing care to the declarant or an administrator at a health
949
care facility in which the declarant is receiving care; or
950
5. The appointed agent.
951
Signature of Witness:
952
_________________________________________________________
953
Section 19.
Section
75-2a-1117
is enacted to read:
954
75-2a-1117. Illegal destruction or falsification of health care directive.
955
(1) A person is guilty of a class B misdemeanor if the person:
956
(a) willfully conceals, cancels, defaces, obliterates, or damages a health care directive
957
of another without the declarant's consent; or
958
(b) falsifies, forges, or alters a health care directive or a revocation of the health care
959
directive of another individual.
960
(2) A person is guilty of criminal homicide if:
961
(a) the person:
962
(i) falsifies or forges the health care directive of another; or
963
(ii) willfully conceals or withholds personal knowledge of:
964
(A) the revocation of a health care directive; or
965
(B) disqualification of a surrogate; and
966
(b) the actions described in Subsection (2)(a) cause a withholding or withdrawal of life
967
sustaining procedures contrary to the wishes of a declarant resulting in the death of the
968
declarant.
969
Section 20.
Section
75-2a-1118
is enacted to read:
970
75-2a-1118. Health care directive effect on insurance policies.
971
(1) If an individual makes a health care directive under this part, the health care
972
directive does not affect in any manner:
973
(a) the obligation of any life or medical insurance company regarding any policy of life
974
or medical insurance;
975
(b) the sale, procurement, or issuance of any policy of life or health insurance; or
976
(c) the terms of any existing policy.
977
(2) (a) Notwithstanding any terms of an insurance policy to the contrary, an insurance
978
policy is not legally impaired or invalidated in any manner by:
979
(i) withholding or withdrawing life sustaining procedures; or
980
(ii) following directions in a health care directive executed as provided in this part.
981
(b) Following health care instructions in a health care directive does not constitute
982
legal cause for failing to pay life or health insurance benefits. Death that occurs after following
983
the instructions of an advance health care directive or a surrogate's instructions does not for any
984
purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or
985
an annuity providing a death benefit.
986
(3) (a) The following may not require an individual to execute a directive under this
987
part as a condition for being insured for or receiving health care or life insurance contract
988
services:
989
(i) a health care provider;
990
(ii) a health care facility;
991
(iii) a health maintenance organization;
992
(iv) an insurer issuing disability, health, or life insurance;
993
(v) a self-insured employee welfare or benefit plan;
994
(vi) a nonprofit medical service corporation or mutual nonprofit hospital service
995
corporation; or
996
(v) any other person, firm, or entity.
997
(b) Nothing in this part:
998
(i) may be construed to require an insurer to insure risks otherwise considered by the
999
insurer as not a covered risk;
1000
(ii) is intended to impair or supersede any other legal right or legal responsibility which
1001
an individual may have to effect the withholding or withdrawal of life sustaining procedures in
1002
any lawful manner; or
1003
(iii) creates any presumption concerning the intention of an individual who has not
1004
executed a health care directive.
1005
Section 21.
Section
75-2a-1119
is enacted to read:
1006
75-2a-1119. Judicial relief.
1007
A district court may enjoin or direct a health care decision, or order other equitable
1008
relief based on a petition filed by:
1009
(1) a patient;
1010
(2) an agent of a patient;
1011
(3) a guardian of a patient;
1012
(4) a default surrogate of a patient;
1013
(5) a health care provider of a patient;
1014
(6) a health care facility providing care for a patient; or
1015
(7) an individual who meets the requirements of Section
75-2a-1107
.
1016
Section 22.
Section
75-2a-1120
is enacted to read:
1017
75-2a-1120. Reciprocity.
1018
Unless otherwise provided in the health care directive:
1019
(1) a health care provider or health care facility may, in good faith, rely on any health
1020
care directive, power of attorney, or similar instrument:
1021
(a) executed in another state; or
1022
(b) prior to January 1, 2008, executed in this state under the provisions of Chapter 2,
1023
Part 11, Personal Choice and Living Will Act; and
1024
(2) the health care directive described in Subsection (1) is presumed to comply with the
1025
requirements of this part.
1026
Section 23.
Section
75-2a-1121
is enacted to read:
1027
75-2a-1121. Effect of act.
1028
The Advance Health Care Directive Act created in this part does not:
1029
(1) create a presumption concerning the intention of an individual who has not made or
1030
who has revoked an advance health care directive;
1031
(2) authorize mercy killing, assisted suicide, or euthanasia; and
1032
(3) authorize the provision, withholding, or withdrawal of health care, to the extent
1033
prohibited by the laws of this state.
1034
Section 24.
Section
75-2a-1122
is enacted to read:
1035
75-2a-1122. Pregnancy.
1036
A health care directive that provides for the withholding or withdrawal of life
1037
sustaining procedures has no force during the course of a declarant's pregnancy.
1038
Section 25.
Section
75-2a-1123
is enacted to read:
1039
75-2a-1123. Provisions cumulative with existing law.
1040
The provisions of this chapter are cumulative with existing law regarding an
1041
individual's right to consent or refuse to consent to medical treatment and do not impair any
1042
existing rights or responsibilities that a health care provider, an individual, including a minor or
1043
incapacitated individual, or an individual's family or surrogate may have in regard to the
1044
provision, withholding or withdrawal of life sustaining procedures under the common law or
1045
statutes of the state.
1046
Section 26.
Section
76-5-111
is amended to read:
1047
76-5-111. Abuse, neglect, or exploitation of a vulnerable adult -- Penalties.
1048
(1) As used in this section:
1049
(a) "Abandonment" means a knowing or intentional action or inaction, including
1050
desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
1051
vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
1052
medical or other health care.
1053
(b) "Abuse" means:
1054
(i) attempting to cause harm, intentionally or knowingly causing harm, or intentionally
1055
or knowingly placing another in fear of imminent harm;
1056
(ii) causing physical injury by knowing or intentional acts or omissions;
1057
(iii) unreasonable or inappropriate use of physical restraint, medication, or isolation
1058
that causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's
1059
orders or used as an unauthorized substitute for treatment, unless that conduct furthers the
1060
health and safety of the adult; or
1061
(iv) deprivation of life-sustaining treatment, except:
1062
(A) as provided in Title 75, Chapter [2] 2a, Part 11, [Personal Choice and Living Will]
1063
Advance Health Care Directive Act; or
1064
(B) when informed consent, as defined in this section, has been obtained.
1065
(c) "Business relationship" means a relationship between two or more individuals or
1066
entities where there exists an oral or written agreement for the exchange of goods or services.
1067
(d) "Caretaker" means any person, entity, corporation, or public institution that
1068
assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
1069
supervision, medical or other health care, or other necessities. "Caretaker" includes a relative
1070
by blood or marriage, a household member, a person who is employed or who provides
1071
volunteer work, or a person who contracts or is under court order to provide care.
1072
(e) "Deception" means:
1073
(i) a misrepresentation or concealment:
1074
(A) of a material fact relating to services rendered, disposition of property, or use of
1075
property intended to benefit a vulnerable adult;
1076
(B) of the terms of a contract or agreement entered into with a vulnerable adult; or
1077
(C) relating to the existing or preexisting condition of any property involved in a
1078
contract or agreement entered into with a vulnerable adult; or
1079
(ii) the use or employment of any misrepresentation, false pretense, or false promise in
1080
order to induce, encourage, or solicit a vulnerable adult to enter into a contract or agreement.
1081
(f) "Elder adult" means a person 65 years of age or older.
1082
(g) "Endeavor" means to attempt or try.
1083
(h) "Exploitation" means the offense described in Subsection (4).
1084
(i) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
1085
psychological damage, physical injury, suffering, or distress inflicted knowingly or
1086
intentionally.
1087
(j) "Informed consent" means:
1088
(i) a written expression by the person or authorized by the person, stating that the
1089
person fully understands the potential risks and benefits of the withdrawal of food, water,
1090
medication, medical services, shelter, cooling, heating, or other services necessary to maintain
1091
minimum physical or mental health, and that the person desires that the services be withdrawn.
1092
A written expression is valid only if the person is of sound mind when the consent is given, and
1093
the consent is witnessed by at least two individuals who do not benefit from the withdrawal of
1094
services; or
1095
(ii) consent to withdraw food, water, medication, medical services, shelter, cooling,
1096
heating, or other services necessary to maintain minimum physical or mental health, as
1097
permitted by court order.
1098
(k) "Intimidation" means communication conveyed through verbal or nonverbal
1099
conduct which threatens deprivation of money, food, clothing, medicine, shelter, social
1100
interaction, supervision, health care, or companionship, or which threatens isolation or harm.
1101
(l) (i) "Isolation" means knowingly or intentionally preventing a vulnerable adult from
1102
having contact with another person by:
1103
(A) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
1104
contrary to the express wishes of the vulnerable adult, including communicating to a visitor
1105
that the vulnerable adult is not present or does not want to meet with or talk to the visitor,
1106
knowing that communication to be false;
1107
(B) physically restraining the vulnerable adult in order to prevent the vulnerable adult
1108
from meeting with a visitor; or
1109
(C) making false or misleading statements to the vulnerable adult in order to induce the
1110
vulnerable adult to refuse to receive communication from visitors or other family members.
1111
(ii) The term "isolation" does not include an act intended to protect the physical or
1112
mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
1113
instructions of a physician or other professional advisor of the vulnerable adult.
1114
(m) "Lacks capacity to consent" means an impairment by reason of mental illness,
1115
developmental disability, organic brain disorder, physical illness or disability, chronic use of
1116
drugs, chronic intoxication, short-term memory loss, or other cause to the extent that a
1117
vulnerable adult lacks sufficient understanding of the nature or consequences of decisions
1118
concerning the adult's person or property.
1119
(n) "Neglect" means:
1120
(i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
1121
care, or dental or other health care, or failure to provide protection from health and safety
1122
hazards or maltreatment;
1123
(ii) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
1124
with the degree of care that a reasonable person in a like position would exercise;
1125
(iii) a pattern of conduct by a caretaker, without the vulnerable adult's informed
1126
consent, resulting in deprivation of food, water, medication, health care, shelter, cooling,
1127
heating, or other services necessary to maintain the vulnerable adult's well being;
1128
(iv) intentional failure by a caretaker to carry out a prescribed treatment plan that
1129
results or could result in physical injury or physical harm; or
1130
(v) abandonment by a caretaker.
1131
(o) "Physical injury" includes damage to any bodily tissue caused by nontherapeutic
1132
conduct, to the extent that the tissue must undergo a healing process in order to be restored to a
1133
sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot
1134
be restored to a sound and healthy condition. "Physical injury" includes skin bruising, a
1135
dislocation, physical pain, illness, impairment of physical function, a pressure sore, bleeding,
1136
malnutrition, dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling,
1137
injury to any internal organ, or any other physical condition that imperils the health or welfare
1138
of the vulnerable adult and is not a serious physical injury as defined in this section.
1139
(p) "Position of trust and confidence" means the position of a person who:
1140
(i) is a parent, spouse, adult child, or other relative by blood or marriage of a vulnerable
1141
adult;
1142
(ii) is a joint tenant or tenant in common with a vulnerable adult;
1143
(iii) has a legal or fiduciary relationship with a vulnerable adult, including a
1144
court-appointed or voluntary guardian, trustee, attorney, or conservator; or
1145
(iv) is a caretaker of a vulnerable adult.
1146
(q) "Serious physical injury" means any physical injury or set of physical injuries that:
1147
(i) seriously impairs a vulnerable adult's health;
1148
(ii) was caused by use of a dangerous weapon as defined in Section
76-1-601
;
1149
(iii) involves physical torture or causes serious emotional harm to a vulnerable adult; or
1150
(iv) creates a reasonable risk of death.
1151
(r) "Sexual exploitation" means the production, distribution, possession, or possession
1152
with the intent to distribute material or a live performance depicting a nude or partially nude
1153
vulnerable adult who lacks the capacity to consent, for the purpose of sexual arousal of any
1154
person.
1155
(s) "Undue influence" occurs when a person uses the person's role, relationship, or
1156
power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear
1157
of a vulnerable adult, or uses the person's role, relationship, or power to gain control
1158
deceptively over the decision making of the vulnerable adult.
1159
(t) "Vulnerable adult" means an elder adult, or an adult 18 years of age or older who
1160
has a mental or physical impairment which substantially affects that person's ability to:
1161
(i) provide personal protection;
1162
(ii) provide necessities such as food, shelter, clothing, or medical or other health care;
1163
(iii) obtain services necessary for health, safety, or welfare;
1164
(iv) carry out the activities of daily living;
1165
(v) manage the adult's own resources; or
1166
(vi) comprehend the nature and consequences of remaining in a situation of abuse,
1167
neglect, or exploitation.
1168
(2) Under any circumstances likely to produce death or serious physical injury, any
1169
person, including a caretaker, who causes a vulnerable adult to suffer serious physical injury or,
1170
having the care or custody of a vulnerable adult, causes or permits that adult's person or health
1171
to be injured, or causes or permits a vulnerable adult to be placed in a situation where the
1172
adult's person or health is endangered, is guilty of the offense of aggravated abuse of a
1173
vulnerable adult as follows:
1174
(a) if done intentionally or knowingly, the offense is a second degree felony;
1175
(b) if done recklessly, the offense is third degree felony; and
1176
(c) if done with criminal negligence, the offense is a class A misdemeanor.
1177
(3) Under circumstances other than those likely to produce death or serious physical
1178
injury any person, including a caretaker, who causes a vulnerable adult to suffer harm, abuse,
1179
or neglect; or, having the care or custody of a vulnerable adult, causes or permits that adult's
1180
person or health to be injured, abused, or neglected, or causes or permits a vulnerable adult to
1181
be placed in a situation where the adult's person or health is endangered, is guilty of the offense
1182
of abuse of a vulnerable adult as follows:
1183
(a) if done intentionally or knowingly, the offense is a class A misdemeanor;
1184
(b) if done recklessly, the offense is a class B misdemeanor; and
1185
(c) if done with criminal negligence, the offense is a class C misdemeanor.
1186
(4) (a) A person commits the offense of exploitation of a vulnerable adult when the
1187
person:
1188
(i) is in a position of trust and confidence, or has a business relationship, with the
1189
vulnerable adult or has undue influence over the vulnerable adult and knowingly, by deception
1190
or intimidation, obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds,
1191
credit, assets, or other property with the intent to temporarily or permanently deprive the
1192
vulnerable adult of the use, benefit, or possession of the adult's property, for the benefit of
1193
someone other than the vulnerable adult;
1194
(ii) knows or should know that the vulnerable adult lacks the capacity to consent, and
1195
obtains or uses, or endeavors to obtain or use, or assists another in obtaining or using or
1196
endeavoring to obtain or use, the vulnerable adult's funds, assets, or property with the intent to
1197
temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of his
1198
property for the benefit of someone other than the vulnerable adult;
1199
(iii) unjustly or improperly uses or manages the resources of a vulnerable adult for the
1200
profit or advantage of someone other than the vulnerable adult;
1201
(iv) unjustly or improperly uses a vulnerable adult's power of attorney or guardianship
1202
for the profit or advantage of someone other than the vulnerable adult;
1203
(v) involves a vulnerable adult who lacks the capacity to consent in the facilitation or
1204
furtherance of any criminal activity; or
1205
(vi) commits sexual exploitation of a vulnerable adult.
1206
(b) A person is guilty of the offense of exploitation of a vulnerable adult as follows:
1207
(i) if done intentionally or knowingly and the aggregate value of the resources used or
1208
the profit made is or exceeds $5,000, the offense is a second degree felony;
1209
(ii) if done intentionally or knowingly and the aggregate value of the resources used or
1210
the profit made is less than $5,000 or cannot be determined, the offense is a third degree
1211
felony;
1212
(iii) if done recklessly, the offense is a class A misdemeanor; or
1213
(iv) if done with criminal negligence, the offense is a class B misdemeanor.
1214
(5) It does not constitute a defense to a prosecution for any violation of this section that
1215
the accused did not know the age of the victim.
1216
(6) An adult is not considered abused, neglected, or a vulnerable adult for the reason
1217
that the adult has chosen to rely solely upon religious, nonmedical forms of healing in lieu of
1218
medical care.
1219
Section 27. Repealer.
1220
This bill repeals:
1221
Section 75-2-1101, Short title.
1222
Section 75-2-1102, Intent statement.
1223
Section 75-2-1103, Definitions.
1224
Section 75-2-1104, Directive for medical services.
1225
Section 75-2-1105, Directive for medical services after injury or illness is incurred.
1226
Section 75-2-1105.5, Emergency medical services -- Directive not to resuscitate.
1227
Section 75-2-1106, Special power of attorney.
1228
Section 75-2-1107, Medical services for terminal persons without a directive.
1229
Section 75-2-1108, Current desires of declarant.
1230
Section 75-2-1109, Pregnancy.
1231
Section 75-2-1110, Notification to physician.
1232
Section 75-2-1111, Revocation of directive.
1233
Section 75-2-1112, Physician compliance with directive.
1234
Section 75-2-1113, Presumption of validity of directive.
1235
Section 75-2-1114, Physician liability for compliance with directive.
1236
Section 75-2-1115, Illegal destruction or falsification of directive.
1237
Section 75-2-1116, Compliance with directive is not suicide.
1238
Section 75-2-1117, No insurance or health care provider may require a directive.
1239
Section 75-2-1118, Directive not mercy killing.
1240
Section 75-2-1119, Reciprocity.
1241
Section 28. Effective date.
1242
This bill takes effect on January 1, 2008.
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