S.B. 161

1

ADVANCE HEALTH CARE DIRECTIVE
2 AMENDMENTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Allen M. Christensen
6 House Sponsor: Steven R. Mascaro
7
8 LONG TITLE
9 General Description:
10 This bill amends the Advance Health Care Directive Act.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . describes the standard to be used by a surrogate in making a health care decision on
15 behalf of a person who no longer has capacity to make the person's own health care
16 decisions;
17 . modifies provisions related to a physician order for life sustaining treatment form
18 and revocation of the form;
19 . describes who may witness the making or revocation of an advance health care
20 directive;
21 . modifies provisions related to default surrogates, including:
22 . the order of priority among potential surrogates; and
23 . witnessing the disqualification of a default surrogate;
24 . modifies the optional form for an advance health care directive;
25 . describes the reciprocal applicability of an advance health care directive made
26 before the effective date of this bill; and
27 . makes technical changes.

28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 None
32 Utah Code Sections Affected:
33 AMENDS:
34 75-2a-102, as enacted by Laws of Utah 2007, Chapter 31
35 75-2a-103, as enacted by Laws of Utah 2007, Chapter 31
36 75-2a-104, as enacted by Laws of Utah 2007, Chapter 31
37 75-2a-105, as enacted by Laws of Utah 2007, Chapter 31
38 75-2a-107, as enacted by Laws of Utah 2007, Chapter 31
39 75-2a-108, as enacted by Laws of Utah 2007, Chapter 31
40 75-2a-109, as enacted by Laws of Utah 2007, Chapter 31
41 75-2a-110, as enacted by Laws of Utah 2007, Chapter 31
42 75-2a-111, as enacted by Laws of Utah 2007, Chapter 31
43 75-2a-112, as enacted by Laws of Utah 2007, Chapter 31
44 75-2a-113, as enacted by Laws of Utah 2007, Chapter 31
45 75-2a-114, as enacted by Laws of Utah 2007, Chapter 31
46 75-2a-115, as enacted by Laws of Utah 2007, Chapter 31
47 75-2a-117, as enacted by Laws of Utah 2007, Chapter 31
48 75-2a-118, as enacted by Laws of Utah 2007, Chapter 31
49 75-2a-119, as enacted by Laws of Utah 2007, Chapter 31
50 75-2a-120, as enacted by Laws of Utah 2007, Chapter 31
51 75-2a-121, as enacted by Laws of Utah 2007, Chapter 31
52 75-2a-122, as enacted by Laws of Utah 2007, Chapter 31
53 75-2a-124, as enacted by Laws of Utah 2007, Chapter 31
54 ENACTS:
55 75-2a-125, Utah Code Annotated 1953
56 REPEALS AND REENACTS:
57 75-2a-106, as enacted by Laws of Utah 2007, Chapter 31
58

59 Be it enacted by the Legislature of the state of Utah:
60 Section 1. Section 75-2a-102 is amended to read:
61 75-2a-102. Intent statement.
62 (1) The Legislature finds:
63 (a) developments in health care technology make possible many alternatives for
64 treating medical conditions and make possible the unnatural prolongation of life;
65 (b) [individuals] an adult should have the clear legal choice to:
66 (i) accept or reject health care, even if rejecting health care will result in death sooner
67 than death would be expected to occur if rejected health care were started or continued;
68 (ii) be spared unwanted procedures; and
69 (iii) be permitted to die with a maximum of dignity and function and a minimum of
70 pain;
71 (c) Utah law should:
72 (i) provide [individuals] an adult with a legal tool to designate a health care agent and
73 express preferences about health care options to go into effect only after the [individual] adult
74 loses the ability to make or communicate health care decisions, including decisions about
75 end-of-life care; and
76 (ii) promote a health care directive system that can be administered effectively within
77 the health care system;
78 (d) surrogate decisions made on behalf of [a person] an adult who previously had
79 capacity to make health care decisions, but who has lost health care decision making capacity
80 should be based on:
81 (i) input from the incapacitated [person] adult, to the extent possible under the
82 circumstances;
83 (ii) specific preferences expressed by the [individual] adult prior to the loss of health
84 care decision making capacity;
85 (iii) the surrogate's understanding of the [individual's] adult's health care preferences;
86 and
87 (iv) the surrogate's understanding of what the [individual] adult would have wanted
88 under the circumstances; and
89 (e) surrogate decisions made on behalf of an [individual] adult who has never had

90 health care decision making capacity should be made on the basis of the [individual's] adult's
91 best interest.
92 (2) In recognition of the dignity and privacy that [all individuals are] each adult is
93 entitled to expect, and to protect the right of an [individual] adult to refuse to be treated without
94 the [individual's] adult's consent, the Legislature declares that this state recognizes the right to
95 make binding health care directives directing health care providers to:
96 (a) provide life sustaining [or life supporting] medically indicated health care;
97 (b) withhold or withdraw health care; or
98 (c) provide health care only to the extent set forth in a health care directive.
99 Section 2. Section 75-2a-103 is amended to read:
100 75-2a-103. Definitions.
101 As used in this chapter:
102 (1) "Adult" means a person who is:
103 (a) at least 18 years of age; or
104 (b) an emancipated minor.
105 [(1)] (2) "Agent" means a person designated in an advance health care directive to
106 make health care decisions for the declarant.
107 (3) "APRN" means a person who is:
108 (a) certified or licensed as an advance practice registered nurse under Subsection
109 58-31b-301 (2)(d);
110 (b) an independent practitioner;
111 (c) acting under a consultation and referral plan with a physician; and
112 (d) acting within the scope of practice for that person, as provided by law, rule, and
113 specialized certification and training in that person's area of practice.
114 [(2)] (4) "Best interest" means that the benefits to the [individual] person resulting
115 from a treatment outweigh the burdens to the [individual] person resulting from the treatment,
116 taking into account:
117 (a) the effect of the treatment on the physical, emotional, and cognitive functions of the
118 [individual] person;
119 (b) the degree of physical pain or discomfort caused to the [individual] person by the
120 treatment or the withholding or withdrawal of treatment;

121 (c) the degree to which the [individual's] person's medical condition, the treatment, or
122 the withholding or withdrawal of treatment, result in a severe and continuing impairment of the
123 dignity of the [individual] person by subjecting the [individual] person to humiliation and
124 dependency;
125 (d) the effect of the treatment on the life expectancy of the [individual] person;
126 (e) the prognosis of the [individual] person for recovery with and without the
127 treatment;
128 (f) the risks, side effects, and benefits of the treatment, or the withholding or
129 withdrawal of treatment; and
130 (g) the religious beliefs and basic values of the [individual] person receiving treatment,
131 to the extent these may assist the decision maker in determining the best interest.
132 [(3)] (5) "Capacity to appoint an agent" means that the [individual] adult understands
133 the consequences of appointing a particular person as agent.
134 [(4)] (6) "Declarant" means an [individual] adult who has completed and signed or
135 directed the signing of a health care directive.
136 [(5)] (7) "Default surrogate [decision maker]" means the [person] adult who may make
137 decisions for an individual when either:
138 (a) an agent or guardian has not been appointed; or
139 (b) an agent is not able [or], available, or willing to make decisions for [a declarant] an
140 adult.
141 [(6)] (8) "Generally accepted health care standards":
142 (a) is defined only for the purpose of:
143 (i) this chapter and does not define the standard of care for any other purpose under
144 Utah law; and
145 (ii) enabling health care providers to interpret the statutory form set forth in Section
146 75-2a-117 ; and
147 (b) means the standard of care that justifies a provider in declining to provide life
148 sustaining [or life supporting] care because the proposed life sustaining care:
149 (i) will not prevent or reduce the deterioration in the health or functional status of [an
150 individual] a person;
151 (ii) will not prevent the impending death of [an individual] a person; or

152 (iii) will impose more burden on the [individual] person than any expected benefit to
153 the [individual] person.
154 [(7) "Guardian" means a court-appointed guardian.]
155 [(8)] (9) "Health care" means any care, treatment, service, or procedure to improve,
156 maintain, diagnose, or otherwise affect [an individual's] a person's physical or mental
157 condition.
158 [(9)] (10) "Health care decision":
159 (a) means a decision about an [individual's] adult's health care made by [the individual
160 or the individual's surrogate], or on behalf of, an adult, that is communicated to a health care
161 provider;
162 (b) includes:
163 (i) selection and discharge of a health care provider and a health care facility;
164 (ii) approval or disapproval of diagnostic tests, procedures, programs of medication,
165 and orders not to resuscitate; and
166 (iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and
167 all other forms of health care; and
168 (c) does not include decisions about [the individual's] an adult's financial affairs or
169 social interactions other than as indirectly affected by the health care decision.
170 [(10)] (11) "Health care decision making capacity" means an [individual's] adult's
171 ability to make an informed decision about receiving or refusing health care, including:
172 (a) the ability to understand the nature, extent, or probable consequences of the health
173 care alternatives;
174 (b) the ability to make a rational evaluation of the burdens, risks, benefits, and
175 alternatives [to the proposed] of accepting or rejecting health care; and
176 (c) the ability to communicate a decision.
177 [(11)] (12) "Health care directive":
178 (a) includes:
179 (i) a designation of an agent to make health care decisions for an [individual] adult
180 when the [individual] adult cannot make or communicate health care decisions; or
181 (ii) an expression of preferences about health care decisions; and
182 (b) may take one of the following forms:

183 (i) a written document, voluntarily executed by an [individual] adult in accordance
184 with the requirements of this chapter; or
185 (ii) a witnessed oral statement, made [by an individual,] in accordance with the
186 requirements of this chapter.
187 [(12)] (13) "Health care facility" means:
188 (a) a health care facility as defined in Title 26, Chapter 21, Health Care Facility
189 Licensing and Inspection Act; and
190 (b) private offices of physicians, dentists, and other health care providers licensed to
191 provide health care under Title 58, Occupations and Professions.
192 [(13)] (14) "Health care provider" is defined in Section 78-14-3 .
193 [(14) "Individual":]
194 [(a) means:]
195 [(i) a person 18 years of age or older; or]
196 [(ii) an emancipated minor as defined in Sections 78-3a-1001 to 78-3a-1105 ; and]
197 [(b) includes:]
198 [(i) a declarant; and]
199 [(ii) a person who has not completed an advance health care directive.]
200 (15) "Minor" means a person who:
201 (a) is under 18 years of age; and
202 (b) is not an emancipated minor.
203 (16) "Physician" means a physician and surgeon or osteopathic surgeon licensed under
204 Title 58, Chapter 67, Utah Medical Practice Act or Chapter 68, Utah Osteopathic Medical
205 Practice Act.
206 [(15)] (17) "Reasonably available" means:
207 (a) readily able to be contacted without undue effort; and
208 (b) willing and able to act in a timely manner considering the urgency of the
209 [individual's health care needs] circumstances.
210 (18) "Substituted judgment" means the standard to be applied by a surrogate when
211 making a health care decision for an adult who previously had the capacity to make health care
212 decisions, which requires the surrogate to consider:
213 (a) specific preferences expressed by the adult:

214 (i) when the adult had the capacity to make health care decisions; and
215 (ii) at the time the decision is being made;
216 (b) the surrogate's understanding of the adult's health care preferences;
217 (c) the surrogate's understanding of what the adult would have wanted under the
218 circumstances; and
219 (d) to the extent that the preferences described in Subsections (18)(a) through (c) are
220 unknown, the best interest of the adult.
221 [(16)] (19) "Surrogate" means a health care decision maker who is:
222 (a) an appointed agent;
223 (b) a default surrogate [decision maker] under the provisions of Section 75-2a-108 ; or
224 (c) a [court-appointed] guardian.
225 Section 3. Section 75-2a-104 is amended to read:
226 75-2a-104. Capacity to make health care decisions -- Presumption -- Overcoming
227 presumption.
228 (1) An [individual] adult is presumed to have:
229 (a) health care decision making capacity; and
230 (b) capacity to make or revoke a health care directive.
231 (2) To overcome the presumption of capacity, a physician or an APRN who has
232 personally examined the [individual] adult and assessed the [individual's] adult's health care
233 decision making capacity must:
234 (a) find that the [individual] adult lacks health care decision making capacity;
235 (b) record the finding in the [individual's] adult's medical chart including an indication
236 of whether the [individual] adult is likely to regain health care decision making capacity; and
237 (c) make a reasonable effort to communicate the determination to:
238 (i) the [individual] adult;
239 (ii) other health care providers or health care facilities that the physician or APRN
240 would routinely inform of such a finding; and
241 (iii) if the [individual] adult has a surrogate, any known surrogate.
242 (3) (a) If a physician or APRN finds that an [individual] adult lacks health care
243 decision making capacity in accordance with Subsection (2), the [individual] adult may at any
244 time, challenge the finding by:

245 (i) submitting to a health care provider a written notice stating that the [individual]
246 adult disagrees with the physician's finding; or
247 (ii) orally informing the health care provider that the [individual] adult disagrees with
248 the [physician's] finding.
249 (b) A health care provider who is informed of a challenge [pursuant to] under
250 Subsection (3)(a), shall, if the adult has a surrogate, promptly inform [an individual, if any,
251 who is serving as] the surrogate of the [individual's] adult's challenge.
252 (c) A surrogate informed of a challenge to a finding under this section, or the
253 [individual] adult if no surrogate is acting on the [individual's] adult's behalf, shall inform the
254 following of the [individual's] adult's challenge:
255 (i) any other health care providers involved in the [individual's] adult's care; and
256 (ii) the health care facility, if any, in which the [individual] adult is receiving care.
257 [(d) An individual's challenge to a finding under this section is binding on a health care
258 provider and a health care facility unless otherwise ordered by a court.]
259 (d) Unless otherwise ordered by a court, a finding by a physician, under Subsection (2),
260 that the adult lacks health care decision making capacity, is not in effect, if the adult challenges
261 the finding under Subsection (3)(a).
262 (e) If an [individual] adult does not challenge [a] the finding described in Subsection
263 (2), the health care provider and health care facility may rely on a surrogate, pursuant to the
264 provisions of this chapter, to make health care decisions for the [individual] adult.
265 (4) A health care provider or health care facility [providing care to the individual] that
266 relies on a surrogate to make decisions on behalf of an [individual] adult has an ongoing
267 obligation to consider whether the [individual] adult continues to lack health care decision
268 making capacity.
269 (5) If at any time a health care provider finds, based on an examination and assessment,
270 that the [individual] adult has regained health care decision making capacity, the health care
271 provider shall record the results of the assessment in the [individual's] adult's medical record,
272 and the [individual] adult can direct [his] the adult's own health care.
273 Section 4. Section 75-2a-105 is amended to read:
274 75-2a-105. Capacity to complete an advance health care directive.
275 (1) An [individual] adult is presumed to have the capacity to complete an advance

276 health care directive.
277 (2) An [individual] adult who is found to lack health care decision making capacity
278 under the provisions of Section 75-2a-104 :
279 (a) lacks the capacity to give an advance health care directive, including Part II of the
280 form created in Section 75-2a-117 , or any other substantially similar form expressing a health
281 care preference; and
282 (b) may retain the capacity to appoint an agent and complete Part I of the form created
283 in Section 75-2a-117 .
284 (3) The following factors shall be considered by a health care provider, attorney, or
285 court when determining whether an [individual] adult described in Subsection (2)(b) has
286 retained the capacity to appoint an agent:
287 (a) whether the [individual] adult has expressed over time an intent to appoint the same
288 person as agent;
289 (b) whether the choice of agent is consistent with past relationships and patterns of
290 behavior between the [individual] adult and the prospective agent, or, if inconsistent, whether
291 there is a reasonable justification for the change; and
292 (c) whether the [individual's] adult's expression of the intent to appoint the agent
293 occurs at times when, or in settings where, the [individual] adult has the greatest ability to
294 make and communicate decisions.
295 Section 5. Section 75-2a-106 is repealed and reenacted to read:
296 75-2a-106. Emergency medical services -- Physician order.
297 (1) A physician order for life sustaining treatment may be completed on behalf of a
298 person:
299 (a) if the person is an adult who has health care decision making capacity, by the
300 person;
301 (b) if the person is a minor, by a parent or guardian of the minor; or
302 (c) if the person is an adult who lacks health care decision making capacity, by the
303 person's surrogate, pursuant to the provisions of this chapter.
304 (2) A physician order for life sustaining treatment shall:
305 (a) be in writing, on a form approved by the Department of Health;
306 (b) include the date on which the order is made;

307 (c) if the person is an adult with health care decision making capacity, be signed by:
308 (i) the adult; or
309 (ii) an adult who signs the form at the direction of the adult to whom the form relates;
310 (d) subject to Subsection (3), if the person is a minor, be signed by a parent or guardian
311 of the minor; or
312 (e) if the person is an adult who lacks health care decision making capacity, be signed
313 by:
314 (i) the surrogate with the highest priority under Section 75-2a-111 ;
315 (ii) the majority of the class of surrogates with the highest priority under Section
316 75-2a-111 ; or
317 (iii) a person directed to sign the order by, and on behalf of, the persons described in
318 Subsection (2)(e)(i) or (ii); and
319 (f) be personally signed, completed, and certified by the person's physician or APRN.
320 (3) In addition to the requirements of Subsection (2), if the order relates to a minor and
321 directs that life sustaining treatment be withheld or withdrawn, the order shall include a
322 certification by two physicians that, in their clinical judgment, an order to withhold or
323 withdraw life sustaining treatment is in the best interest of the minor.
324 (4) The physician order for life sustaining treatment may:
325 (a) specify the level of life-sustaining care to be provided to the person; or
326 (b) direct that life-sustaining care be withheld or withdrawn from the person.
327 (5) A health care provider, health care facility, or emergency medical service provider,
328 licensed or certified under Title 26, Chapter 8a, Utah Emergency Medical Services System Act,
329 who responds to a call to provide emergency medical services as defined in Section 26-8a-102 ,
330 may:
331 (a) in accordance with the direction given in an order for life sustaining treatment
332 described in this section, provide, withhold, or withdraw life sustaining treatment from the
333 person to whom the order applies; or
334 (b) decline to follow a direction given in an order to withhold or withdraw
335 life-sustaining treatment from the person to whom the order applies, if evidence suggests that
336 the order may not be valid or may not reflect the health care instructions of the person or the
337 person's surrogate.

338 (6) To the extent that the provisions of an order for life sustaining treatment described
339 in this section conflict with the provisions of a directive made under Section 75-2a-107 , the
340 provisions of the order for life sustaining treatment form take precedence.
341 (7) An adult, a parent or guardian of a minor, or a surrogate may revoke an order for
342 life sustaining treatment by:
343 (a) orally informing emergency service personnel;
344 (b) writing "void" across the form;
345 (c) burning, tearing, or otherwise destroying or defacing:
346 (i) the form; or
347 (ii) a bracelet or other evidence of the physician order;
348 (d) asking another adult to take the action described in this Subsection (7) on the
349 person's behalf;
350 (e) signing or directing another adult to sign a written revocation on the person's
351 behalf;
352 (f) stating, in the presence of an adult witness, that the person wishes to revoke the
353 order; or
354 (g) completing a new physician order.
355 (8) (a) The Department of Health shall adopt rules, in accordance with Title 63,
356 Chapter 46a, Utah Administrative Rulemaking Act, to:
357 (i) create the forms and systems described in this section; and
358 (ii) develop uniform instructions for the form established in Section 75-2a-117 .
359 (b) The Department of Health may assist others with training of health care
360 professionals regarding this chapter.
361 Section 6. Section 75-2a-107 is amended to read:
362 75-2a-107. Advance health care directive -- Appointment of agent -- Powers of
363 agent -- Health care directions.
364 (1) (a) An [individual] adult may make an advance health care directive[,] in which the
365 [individual] adult may:
366 (i) appoint a health care agent or choose not to appoint a health care agent;
367 (ii) give directions for the care of the [individual] adult after the [individual] adult loses
368 health care decision making capacity [or chooses];

369 (iii) choose not to give directions;
370 [(iii)] (iv) state conditions that must be met before life sustaining treatment may be
371 withheld or withdrawn;
372 [(iv)] (v) authorize an agent to consent to the [individual's] adult's participation in
373 medical research;
374 [(v)] (vi) nominate a guardian;
375 [(vi)] (vii) authorize an agent to consent to organ donation;
376 [(vii)] (viii) expand or limit the powers of a health care agent; and
377 [(viii)] (ix) designate the agent's access to the [individual's] adult's medical records.
378 (b) An advance health care directive may be oral or written.
379 (c) An advance health care directive shall be witnessed by a disinterested [individual]
380 adult. The witness may not be:
381 (i) the person who signed the directive on behalf of the declarant;
382 (ii) related to the declarant by blood or marriage;
383 (iii) entitled to any portion of the declarant's estate according to the laws of intestate
384 succession of this state or under any will or codicil of the declarant;
385 (iv) the beneficiary of any of the following that are held, owned, made, or established
386 by, or on behalf of, the declarant:
387 (A) a life insurance policy;
388 (B) a trust;
389 (C) a qualified plan;
390 (D) a pay on death account; or
391 (E) a transfer on death deed;
392 (v) entitled to benefit financially upon the death of the declarant;
393 (vi) entitled to a right to, or interest in, real or personal property upon the death of the
394 declarant;
395 [(iv)] (vii) directly financially responsible for the declarant's medical care;
396 [(v)] (viii) a health care provider who is:
397 (A) providing care to the declarant; or
398 (B) an administrator at a health care facility in which the declarant is receiving care; or
399 [(vi)] (ix) the appointed agent.

400 (d) The witness to an oral advance health care directive shall state the circumstances
401 under which the directive was made.
402 (2) Unless otherwise directed in a health care directive, the authority of an agent:
403 (a) is effective only after a physician makes a determination of incapacity as provided
404 in Section 75-2a-104 ;
405 (b) remains in effect during any period of time in which the declarant lacks capacity to
406 [appoint an agent or] make health care decisions; and
407 (c) ceases to be effective when:
408 (i) a declarant disqualifies an agent or revokes the health care directive;
409 (ii) a health care provider finds that the declarant has health care decision making
410 capacity;
411 (iii) a court issues an order invalidating a health care directive [or the application of the
412 health care directive]; or
413 (iv) the [individual] declarant has challenged the [determination] finding of incapacity
414 under the provisions of Subsection 75-2a-104 (3).
415 (3) An agent appointed under the provisions of this section may not be a health care
416 provider for the declarant, or an owner, operator, or employee of the health care facility at
417 which the declarant is receiving care unless the agent is related to the declarant by blood,
418 marriage, or adoption.
419 [(4) If the declarant does not specify the agent's access to medical records in an
420 advance health care directive, the agent's access to medical records is governed by Section
421 75-2a-113 .]
422 Section 7. Section 75-2a-108 is amended to read:
423 75-2a-108. Default surrogates.
424 (1) (a) Any member of the class described in Subsection (1)(b) may act as an
425 [individual's] adult's surrogate [health care decision maker] if:
426 (i) (A) the adult has not appointed an agent [or court-appointed guardian is absent or];
427 (B) an appointed agent is not reasonably available; [and] or
428 (C) a guardian has not been appointed; and
429 (ii) the member of the class described in Subsection (1)(b) is:
430 (A) over 18 years of age;

431 (B) has health care decision making capacity;
432 (C) is reasonably available; and
433 (D) has not been disqualified by the [individual] adult or a court.
434 (b) [The] Except as provided in Subsection (1)(a), and subject to Subsection (1)(c), the
435 following classes of the [individual's] adult's family, in descending order of priority, may act as
436 the [individual's] adult's surrogate[, however an individual in a lower priority class has no
437 rights to direct an individual's care if a member of a higher priority class is able and willing to
438 act as surrogate]:
439 (i) the [individual's] adult's spouse, unless:
440 (A) divorced or legally separated from the [individual] adult; or
441 (B) a court finds that the spouse has acted in a manner that should preclude the spouse
442 from having a position or a priority position as a default surrogate; or
443 (ii) the following family members, unless a court finds that the family member has
444 acted in a manner that should preclude the family member from having a position or a priority
445 position as a default surrogate:
446 [(ii)] (A) a child;
447 [(iii)] (B) a parent;
448 [(iv)] (C) a sibling;
449 [(v) a grandparent; or]
450 [(vi)] (D) a grandchild[.]; or
451 (E) a grandparent.
452 (c) A person described in Subsection (1)(b), may not direct an adult's care if a person of
453 a higher priority class is able and willing to act as a surrogate for the adult.
454 (2) If the family members designated in Subsection (1)(b) are not reasonably available
455 to act as a surrogate [decision maker], a person who is 18 years of age or older, other than those
456 designated in Subsection (1) may act as a surrogate if the person:
457 (a) has health care decision making capacity;
458 (b) has exhibited special care and concern for the patient;
459 (c) [is familiar with] knows the patient and the patient's personal values; and
460 (d) is reasonably available to act as a surrogate.
461 (3) The surrogate shall communicate the surrogate's assumption of authority as

462 promptly as practicable to the members of a class who:
463 (a) have an equal or higher priority and are not acting as surrogate; and
464 (b) can be readily contacted.
465 (4) A health care provider shall comply with the decision of a majority of the members
466 of [a] the highest priority class who have communicated their views to the provider if:
467 (a) more than one member of [a] the highest priority class assumes authority to act as
468 default surrogate;
469 (b) the members of the class do not agree on a health care decision; and
470 (c) the health care provider is informed of the disagreement among the members of the
471 class.
472 (5) (a) [The individual] An adult may at any time disqualify a default surrogate,
473 including a member of the [individual's] adult's family, from acting as the [individual's] adult's
474 surrogate by:
475 (i) a signed writing;
476 (ii) personally informing a witness of the disqualification [so long as the witness is
477 not:]; or
478 [(A) related to the individual by blood or marriage;]
479 [(B) entitled to any portion of the declarant's estate according to the laws of intestate
480 succession of this state or under any will or codicil of the declarant;]
481 [(C) directly financially responsible for the declarant's medical care;]
482 [(D) a health care provider who is providing care to the declarant or an administrator at
483 a health care facility in which the declarant is receiving care; or]
484 [(E) an individual who would become a default surrogate after the disqualification; or]
485 (iii) verbally informing the default surrogate of the disqualification.
486 (b) Disqualification of a default surrogate is effective even if the [individual] adult has
487 been [determined] found to lack health care decision making capacity.
488 [(6)] (7) If reasonable doubt exists regarding the status of an [individual] adult
489 claiming the right to act as a default surrogate, the health care provider may:
490 (a) require the person to provide a sworn statement giving facts and circumstances
491 reasonably sufficient to establish the claimed authority; or
492 (b) seek a ruling from the court under Section 75-2a-120 .

493 [(7)] (8) A health care provider may seek a ruling from a court pursuant to Section
494 75-2a-120 if the health care provider has evidence that a surrogate is making decisions that are
495 inconsistent with [the individual's] an adult patient's wishes or preferences.
496 Section 8. Section 75-2a-109 is amended to read:
497 75-2a-109. Effect of current health care preferences -- When directive takes
498 effect.
499 (1) An [individual] adult with health care decision making capacity retains the right to
500 make health care decisions as long as the [individual] adult has health care decision making
501 capacity as defined in Section 75-2a-103 . For purposes of this chapter, the inability to
502 communicate through speech does not mean that the [individual] adult lacks health care
503 decision making capacity.
504 (2) An [individual's] adult's current health care decisions, however expressed or
505 indicated, always supersede an [individual's] adult's prior decisions or health care directives.
506 (3) An [individual's] adult's health care directive takes effect only after the [individual
507 loses] adult is found by a physician or APRN to lack health care decision making capacity or
508 the [individual] adult grants current authority to an agent in accordance with Section
509 75-2a-107 .
510 Section 9. Section 75-2a-110 is amended to read:
511 75-2a-110. Surrogate decision making -- Scope of authority.
512 (1) A surrogate [decision maker] acting under the authority of either Section 75-2a-107
513 or 75-2a-108 shall make health care decisions in accordance with:
514 (a) the [individual's] adult's current preferences, to the extent possible;
515 (b) the [individual's] adult's written or oral health care directions, if any[, unless the
516 health care directive indicates that the surrogate may override the individual's health care
517 directions; and]; or
518 [(c) other wishes, preferences, and beliefs, to the extent known to the surrogate.]
519 [(2) If the surrogate does not know, and has no ability to know, the wishes or
520 preferences of the individual, the surrogate shall make a decision based upon an objective
521 determination of what is in the individual's best interest.]
522 (c) the substituted judgment standard.
523 [(3)] (2) A surrogate acting under authority of Sections 75-2a-107 and 75-2a-108 :

524 (a) may not admit the [individual] adult to a licensed health care facility for long-term
525 custodial placement other than for assessment, rehabilitative, or respite care [without the
526 consent] over the objection of [the individual; and] the adult; and
527 (b) may make health care decisions, including decisions to terminate life sustaining
528 treatment for the [individual] adult patient in accordance with [Subsections (1) and (2)]
529 Subsection (1).
530 [(4)] (3) A surrogate acting under authority of this section is not subject to civil or
531 criminal liability or claims of unprofessional conduct for surrogate health care decisions made:
532 (a) in accordance with this section; and [made]
533 (b) in good faith.
534 Section 10. Section 75-2a-111 is amended to read:
535 75-2a-111. Priority of decision makers.
536 (1) The following is the order of priority of those authorized to make health care
537 decisions on behalf of an [individual] adult who lacks decision making capacity:
538 [(1)] (a) a health care agent appointed by an [individual] adult under the provisions of
539 Section 75-2a-107 unless the agent has been disqualified by:
540 [(a)] (i) the [individual] adult; or
541 [(b)] (ii) a court of law;
542 [(2)] (b) a court-appointed guardian; or
543 [(3)] (c) [a] the highest priority default surrogate acting under authority of Section
544 75-2a-108 .
545 (2) A health care provider or health care facility obtaining consent from a surrogate
546 shall make a reasonable effort to identify and obtain consent from the surrogate with the
547 highest priority.
548 Section 11. Section 75-2a-112 is amended to read:
549 75-2a-112. Decisions by guardian.
550 (1) A court-appointed guardian shall comply with [the individual's] an adult's advance
551 health care directive and may not revoke the [individual's] adult's advance health care directive
552 unless the court expressly revokes the [individual's] adult's directive.
553 (2) A health care decision of an agent takes precedence over that of a guardian, in the
554 absence of a court order to the contrary.

555 (3) Except as provided in Subsections (1) and (2), a health care decision made by a
556 guardian for the [individual] adult patient is effective without judicial approval.
557 (4) A guardian is not subject to civil or criminal liability or to claims of unprofessional
558 conduct for a surrogate health care decision made:
559 (a) in good faith; and
560 (b) in accordance with Section 75-2a-110 [made in good faith].
561 Section 12. Section 75-2a-113 is amended to read:
562 75-2a-113. Personal representative status.
563 A surrogate [or a guardian appointed in compliance with this chapter] becomes a
564 personal representative for [the individual] an adult under the Health Insurance Portability and
565 Accountability Act of 1996 when:
566 (1) the [individual] adult loses health care decision making capacity;
567 (2) the [individual] adult grants current authority to the surrogate either:
568 (a) in writing; or
569 (b) by other expression before a witness who is not the surrogate or agent; or
570 (3) the court appoints a guardian authorized to make health care decisions on behalf of
571 the [individual] adult.
572 Section 13. Section 75-2a-114 is amended to read:
573 75-2a-114. Revocation of directive.
574 (1) An advance directive may be revoked at any time by the declarant by:
575 (a) writing "void" across the document;
576 (b) obliterating, burning, tearing, or otherwise destroying or defacing the document in
577 any manner indicating an intent to revoke;
578 (c) instructing another to do one of the acts described in Subsection (1)(a) or (b);
579 (d) a written revocation of the directive signed and dated by:
580 (i) the declarant; or
581 (ii) [a person] an adult:
582 (A) signing on behalf of the declarant; and
583 (B) acting at the direction of the declarant; or
584 (e) an oral expression of an intent to revoke the directive in the presence of a witness
585 who is age 18 years or older and who is not:

586 (i) related to the declarant by blood or marriage;
587 (ii) entitled to any portion of the declarant's estate according to the laws of intestate
588 succession of this state or under any will or codicil of the declarant;
589 (iii) the beneficiary of any of the following that are held, owned, made, or established
590 by, or on behalf of, the declarant:
591 (A) a life insurance policy;
592 (B) a trust;
593 (C) a qualified plan;
594 (D) a pay on death account; or
595 (E) a transfer on death deed;
596 (iv) entitled to benefit financially upon the death of the declarant;
597 (v) entitled to a right to, or interest in, real or personal property upon the death of the
598 declarant;
599 [(iii)] (vi) directly financially responsible for the declarant's medical care;
600 [(iv)] (vii) a health care provider who is:
601 (A) providing care to the declarant; or
602 (B) an administrator at a health care facility in which the declarant is receiving care; or
603 [(v)] (viii) the [person] adult who will become agent or default surrogate after the
604 revocation[; or].
605 [(f) a] (2) A decree of annulment, divorce, dissolution of marriage, or legal separation
606 [that] revokes the designation of a spouse as an agent, unless:
607 [(i)] (a) otherwise specified in the decree; or
608 [(ii)] (b) the declarant has affirmed the intent to retain the agent subsequent to the
609 annulment, divorce, or legal separation.
610 [(2)] (3) An advance health care directive that conflicts with an earlier advance health
611 care directive revokes the earlier directive to the extent of the conflict.
612 Section 14. Section 75-2a-115 is amended to read:
613 75-2a-115. Notification to health care provider -- Obligations of health care
614 providers -- Liability.
615 (1) It is the responsibility of the declarant or surrogate, to the extent that the
616 responsibility is not assigned to a health care provider or health care facility by state or federal

617 law, to notify or provide for notification to a health care provider and a health care facility of:
618 (a) the existence of a health care directive;
619 (b) the revocation of a health care directive;
620 (c) the existence or revocation of appointment of an agent or default surrogate;
621 (d) the disqualification of a default surrogate; or
622 (e) the appointment or revocation of appointment of a guardian.
623 (2) (a) A health care provider or health care facility is not subject to civil or criminal
624 liability or to claims of unprofessional conduct for failing to act upon a health care directive, a
625 revocation of a health care directive, or a disqualification of a surrogate until the health care
626 provider or health care facility has received an oral directive from an [individual] adult or a
627 copy of a written directive or revocation of the health care directive, or the disqualification of
628 the surrogate.
629 (b) A health care provider and health care facility that is notified under Subsection (1)
630 shall include in the [individual's] adult patient's medical record:
631 (i) the health care directive or a copy of it, a revocation of a health care directive, or a
632 disqualification of a surrogate; and
633 (ii) the date, time, and place in which any written or oral notice of the document
634 described in this Subsection (2)(b) is received.
635 (3) A health care provider or health care facility acting in good faith and in accordance
636 with generally accepted health care standards is not subject to civil or criminal liability or to
637 discipline for unprofessional conduct for:
638 (a) complying with a health care decision made by an adult with health care decision
639 making capacity;
640 [(a)] (b) complying with a health care decision made by a surrogate apparently having
641 authority to make a health care decision for [an individual] a person, including a decision to
642 withhold or withdraw health care;
643 [(b)] (c) declining to comply with a health care decision of a surrogate based on a
644 belief that the surrogate then lacked authority;
645 [(c)] (d) declining to comply with a health care decision of an [individual] adult who
646 lacks decision making capacity;
647 [(d)] (e) seeking a judicial determination, or requiring a surrogate to obtain a judicial

648 determination, under Section 75-2a-120 of:
649 (i) the validity of a health care directive;
650 (ii) the validity of directions from a surrogate or guardian;
651 (iii) the decision making capacity of an [individual] adult who challenges a physician's
652 finding of incapacity; or
653 (iv) the authority of a guardian or surrogate; or
654 [(e)] (f) complying with an advance health care directive and assuming that the
655 directive was valid when made, and has not been revoked or terminated.
656 (4) (a) Health care providers and health care facilities shall:
657 (i) cooperate with a person authorized under this chapter to make written directives
658 concerning health care;
659 (ii) unless the provisions of Subsection (4)(b) apply, comply with:
660 (A) a health care decision of an [individual] adult; and
661 (B) a health care decision made by [a] the highest ranking surrogate then authorized to
662 make health care decisions for an [individual] adult, to the same extent as if the decision had
663 been made by [the individual; and] the adult;
664 (iii) before implementing a health care decision made by a surrogate, make a
665 reasonable attempt to communicate to the [individual] adult on whose behalf the decision is
666 made:
667 (A) the decision made; and
668 (B) the identity of the surrogate making the decision.
669 (b) A health care provider or health care facility may decline to comply with a [health
670 care instruction or] health care decision if:
671 (i) in the opinion of the health care provider:
672 (A) the [individual] adult who made the decision lacks health care decision making
673 capacity;
674 (B) the surrogate who made the decision lacks health care decision making capacity;
675 (C) the health care provider has evidence that the surrogate's instructions are
676 inconsistent with the [individual's] adult's health care instructions, or, for [an individual] a
677 person who has always lacked health care decision making capacity, that the surrogate's
678 instructions are inconsistent with the best interest of the [individual] adult; or

679 (D) there is reasonable doubt regarding the status of [an individual] a person claiming
680 the right to act as a default surrogate, in which case the health care provider shall comply with
681 Subsection 75-2a-108 [(6)](7); or
682 (ii) the health care provider declines to comply for reasons of conscience.
683 (c) A health care provider or health care facility that declines to comply with a health
684 care [instruction] decision in accordance with Subsection (4)(b) must:
685 (i) promptly inform the [individual] adult and any [agent,] acting surrogate[, or
686 guardian] of the reason for refusing to comply with the health care [instruction] decision;
687 (ii) make a good faith attempt to resolve the conflict; and
688 (iii) provide continuing care to the [individual] patient until the issue is resolved or
689 until a transfer can be made to a health care provider or health care facility that will implement
690 the requested instruction or decision.
691 (d) A health care provider or health care facility that declines to comply with a health
692 care instruction, after meeting the obligations set forth in Subsection (4)(c) may transfer the
693 [individual] adult to a health care provider or health care facility that will carry out the
694 requested health care decisions.
695 (e) A health care facility may decline to follow a health care decision for reasons of
696 conscience under Subsection (4)(b)(ii) if:
697 (i) the health care decision [or instruction] is contrary to a policy of the facility that is
698 expressly based on reasons of conscience;
699 (ii) the policy was timely communicated to the [individual] adult and [the individual's]
700 an adult's surrogate;
701 (iii) the facility promptly informs the [individual] adult, if possible, and any surrogate
702 then authorized to make decisions for the [individual] adult;
703 (iv) the facility provides continuing care to the [individual] adult until a transfer can be
704 made to a health care facility that will implement the requested instruction or decision; and
705 (v) unless [the individual] an adult or surrogate then authorized to make health care
706 decisions for [an individual] the adult refuses assistance, immediately make all reasonable
707 efforts to assist in the transfer of the [individual] adult to another health care facility that will
708 carry out the instructions or decisions.
709 (5) A health care provider and health care facility:

710 (a) may not require or prohibit the creation or revocation of an advance health care
711 directive as a condition for providing health care; and
712 (b) shall comply with all state and federal laws and regulations governing advance
713 health care directives.
714 Section 15. Section 75-2a-117 is amended to read:
715 75-2a-117. Optional form.
716 (1) The form created in Subsection (2), or a substantially similar form, is presumed
717 valid under this chapter.
718 (2) The following form is presumed valid under Subsection (1):
719 Utah Advance Health Care Directive
720 (Pursuant to Utah Code Section 75-2a-117 )
721 Part I: Allows you to name another person to make health care decisions for you when you
722 cannot make decisions or speak for yourself.
723 Part II: Allows you to record your wishes about health care in writing.
724 Part III: Tells you how to revoke [the form] or change this directive.
725 Part IV: Makes your directive legal.
726 __________________________________________________________________________
727 My Personal Information
728 Name: ____________________________________________________________________
729 Street Address: _____________________________________________________________
730 City, State, Zip Code:
731 _____________________________________________________________
732 Telephone: _________________________ Cell Phone: ____________________________
733 Birth date: _____________
734 ____________________________________________________________________________
735 Part I: My Agent (Health Care Power of Attorney)
736 A. No Agent
737 If you do not want to name an agent: initial the box below, then go to Part II; do not name an
738 agent in B or C below. No one can force you to name an agent.
739 ______ I do not want to choose an agent. [Initial this paragraph if you do not want to
740 name an agent, then go to Part II. Do not name an agent below. No individual, organization,

741 family member, health care provider, lawyer, or insurer should force you to name an agent.]
742 B. My Agent
743 Agent's Name:
744 ______________________________________________________________
745 Street Address:
746 ______________________________________________________________
747 City, State, Zip Code:
748 ______________________________________________________________
749 Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
750 C. My Alternate Agent
751 This person will serve as your agent if your agent, named above, is unable or unwilling to
752 serve.
753 Alternate Agent's Name:
754 ______________________________________________________
755 Street Address:
756 ______________________________________________________________
757 City, State, Zip Code:
758 ______________________________________________________________
759 Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
760 D. Agent's Authority
761 If I cannot make decisions or speak for myself, my agent [can] has the power to make any
762 health care decision I could have made such as, but not limited to:
763 [1.] * Consent to, refuse, or withdraw any health care. This may include care to prolong my
764 life such as food and fluids by tube, use of antibiotics, CPR (cardiopulmonary resuscitation),
765 and dialysis, and mental health care, such as convulsive therapy and psychoactive medications.
766 This authority is subject to any limits in paragraph F of [this section] Part I or in Part II of this
767 directive.
768 [2.] * Hire and fire health care providers.
769 [3.] * Ask questions and get answers from health care providers.
770 [4.] * Consent to admission or transfer to a health care provider or health care facility,
771 including a mental health facility, subject to any limits in paragraphs E [or] and F of [this

772 section] Part I.
773 [5.] * Get copies of my medical records.
774 [6.] * Ask for consultations or second opinions.
775 My agent cannot force health care against my will, even if a physician has found that I lack
776 health care decision making capacity.
777 E. Other Authority
778 My agent has the powers below ONLY IF I [place a check next to] initial the "yes" [in] option
779 that precedes the statement. I authorize my agent to:
780 [Yes] YES _____ NO _____ Get copies of my medical records at any time, even when
781 I can speak for myself.
782 [Yes] YES _____ [No] NO _____ Admit me to a licensed health care facility, such as a
783 hospital, nursing home, assisted living, or other [congregate] facility for long-term placement
784 other than convalescent or recuperative care[, unless I agree to be admitted at that time].
785 F. Limits/Expansion of Authority
786 I wish to limit or expand the powers of my [healthcare] health care agent as follows:
787 ____________________________________________________________________________
788 ____________________________________________________________________________
789 G. Nomination of Guardian
790 Even though appointing an agent should help you avoid a guardianship, a guardianship may
791 still be necessary. Initial the "YES" option if you want the court to appoint your agent or, if
792 your agent is unable or unwilling to serve, your alternate agent, to serve as your guardian, if a
793 guardianship is ever necessary.
794 [Yes] YES _____ [No] NO _____ [By appointing an agent in this document, I intend to
795 avoid guardianship. If I must have a guardian, I want my agent to be my guardian.]
796 I, being of sound mind and not acting under duress, fraud, or other undue influence, do hereby
797 nominate my agent, or if my agent is unable or unwilling to serve, I hereby nominate my
798 alternate agent, to serve as my guardian in the event that, after the date of this instrument, I
799 become incapacitated.
800 H. Consent to Participate in Medical Research
801 [Yes] YES _____ [No] NO _____ I authorize my agent to consent to my participation in
802 medical research or clinical trials, even if I may not benefit from the results.

803 I. [Consent to] Organ Donation
804 [Yes] YES _____ [No] NO _____ If I have not otherwise agreed to organ donation, my
805 agent may consent to the donation of my organs for the purpose of organ transplantation.
806 [J. Agent's Authority to Override Expressed Wishes]
807 [Yes _____ No _____ My agent may make decisions about health care that are different from
808 the instructions in Part II of this form. ]
809 __________________________________________________________________________
810 Part II: My Health Care Wishes (Living Will)
811 I want my health care providers to follow the instructions I give them when I am being treated[,
812 so long as I can make health care decisions], even if [the] my instructions [appear to] conflict
813 with these or other advance directives. My health care providers should always provide
814 [comfort measures and] health care to keep me as comfortable and functional as possible.
815 Choose only one of the following options, numbered Option 1 through Option 4, by placing
816 your initials before the numbered statement [that reflects your wishes]. Do not initial more
817 than one option. If you do not wish to document end-of-life wishes, initial Option 4. You may
818 choose to draw a line through the options that you are not choosing.
819 Option 1
820 [1. ] ________ Initial
821 I choose to let my agent decide. I have chosen my agent carefully. I have talked with my agent
822 about my health care wishes. I trust my agent to make the health care decisions for me that I
823 would make under the circumstances. [My agent may stop care that is prolonging my life only
824 after the conditions checked "yes" below are met.]
825 Additional Comments:
826 _____________________________________________________________________
827 Option 2
828 ________ Initial
829 I choose to prolong life. Regardless of my condition or prognosis, I want my health care team
830 to try to prolong my life as long as possible within the limits of generally accepted health care
831 standards.
832 Other:
833 _____________________________________________________________________

834 Option 3
835 ________ Initial
836 I choose not to receive care for the purpose of prolonging life, including food and fluids by
837 tube, antibiotics, CPR, or dialysis being used to prolong my life. I always want comfort care
838 and routine medical care that will keep me as comfortable and functional as possible, even if
839 that care may prolong my life.
840 If you choose this option, you must also choose either (a) or (b), below.
841 ______ Initial
842 (a) I put no limit on the ability of my health care provider or agent to withhold or withdraw
843 life-sustaining care.
844 If you selected (a), above, do not choose any options under (b).
845 ______ Initial
846 (b) My health care provider should withhold or withdraw life-sustaining care if at least one of
847 the following initialed conditions is met:
848 [Yes _____ No] _____ I have a progressive illness that will cause death.
849 [Yes _____ No] _____ I am close to death and am unlikely to recover.
850 [Yes _____ No] _____ I cannot communicate and it is unlikely that my condition will
851 improve.
852 [Yes _____ No] _____ I do not recognize my friends or family and it is unlikely that my
853 condition will improve.
854 [Yes _____ No] _____ I am in a persistent vegetative state.
855 Other:
856 _____________________________________________________________________
857 [2.______ I want to prolong life. Regardless of my condition or prognosis, I want my
858 health care providers to try to keep me alive as long as possible, within the limits of generally
859 accepted health care standards.]
860 [3.______ I choose NOT to receive care for the purpose of prolonging life, including food
861 and fluids by tube, antibiotics, CPR, or dialysis used to prolong my life. I always want comfort
862 care and routine medical care that will keep me as comfortable and functional as possible, even
863 if that care may prolong my life. My health care provider may stop care that is prolonging my
864 life only after the conditions checked "yes" below are met. If I check "no" to all the conditions,

865 my health care provider should not provide care to prolong my life.]
866 [Yes _____ No _____ I have a progressive illness that will cause death.]
867 [Yes _____ No _____ I am close to death and am unlikely to recover.]
868 [Yes _____ No _____ I cannot communicate and it is unlikely that my condition will
869 improve.]
870 [Yes _____ No _____ I do not recognize my friends or family and it is unlikely that my
871 condition will improve.]
872 [Yes _____ No _____ I am in a persistent vegetative state.]
873 [4.______ I choose not to provide instructions about end-of-life care in this directive.]
874 Option 4
875 ________ Initial
876 I do not wish to express preferences about health care wishes in this directive.
877 Other:
878 _____________________________________________________________________
879 Additional [or Other Instructions] instructions about your health care wishes:
880 ____________________________________________________________________________
881 ____________________________________________________________________________
882 Part III: Revoking [My] or Changing a Directive
883 I may revoke or change this directive by:
884 1. Writing "void" across the form, or burning, tearing, or otherwise destroying or defacing
885 [the] this document or [asking] directing another person to do the same on my behalf;
886 2. Signing a written revocation of the directive, or directing another person to sign a [written]
887 revocation on my behalf;
888 3. Stating that I wish to revoke the directive in the presence of a witness who [meets the
889 requirements of the witness in Part IV, below, and who will not be appointed as agent or
890 become a default surrogate when the directive is revoked; or]: is 18 years of age or older; will
891 not be appointed as my agent in a substitute directive; will not become a default surrogate if the
892 directive is revoked; and signs and dates a written document confirming my statement; or
893 4. Signing a new directive. (If you sign more than one Advance Health Care Directive, the
894 most recent one applies.)
895 Part IV: Making My Directive Legal

896 I sign this directive voluntarily. I understand the choices I have made[. I] and declare that I am
897 emotionally and mentally [able] competent to make this directive. My signature on this form
898 revokes any living will or power of attorney form, naming a health care agent, that I have
899 completed in the past.
900 [Date:] ____________________________________
901 Date
902 [Signature:] ________________________________________________
903 Signature
904 ____________________________________________________________________________
905 City, County, and State of Residence
906 I have witnessed the signing of this directive, I am 18 years of age or older, and I am not:
907 1. related to the declarant by blood or marriage;
908 2. entitled to any portion of the declarant's estate according to the laws of intestate succession
909 of [Utah] any state or jurisdiction or under any will or codicil of the declarant;
910 3. a beneficiary of a life insurance policy, trust, qualified plan, pay on death account, or
911 transfer or death deed that is held, owned, made, or established by, or on behalf of, the
912 declarant;
913 4. entitled to benefit financially upon the death of the declarant;
914 5. entitled to a right to, or interest in, real or personal property upon the death of the declarant;
915 [3.] 6. directly financially responsible for the declarant's medical care;
916 [4.] 7. a health care provider who is providing care to the declarant or an administrator at a
917 health care facility in which the declarant is receiving care; or
918 [5.] 8. the appointed agent or alternate agent.
919 [Signature of Witness:]
920 _____________________________________ __________________________________
921 Signature of Witness Printed Name of Witness
922 _____________________________________ ___________ _________ _________
923 Street Address City State Zip Code
924 If the witness is signing to confirm an oral directive, describe below the circumstances under
925 which the directive was made.
926 ____________________________________________________________________________

927 ____________________________________________________________________________
928 Section 16. Section 75-2a-118 is amended to read:
929 75-2a-118. Illegal destruction or falsification of health care directive.
930 (1) A person is guilty of a class B misdemeanor if the person:
931 (a) willfully conceals, cancels, defaces, obliterates, or damages a health care directive
932 of another without the declarant's consent; or
933 (b) falsifies, forges, or alters a health care directive or a revocation of the health care
934 directive of another [individual] person.
935 (2) A person is guilty of criminal homicide if:
936 (a) the person:
937 (i) falsifies or forges the health care directive of [another] an adult; or
938 (ii) willfully conceals or withholds personal knowledge of:
939 (A) the existence of a health care directive;
940 [(A)] (B) the revocation of a health care directive; or
941 [(B)] (C) the disqualification of a surrogate; and
942 (b) the actions described in Subsection (2)(a) cause a withholding or withdrawal of life
943 sustaining procedures contrary to the wishes of a declarant resulting in the death of the
944 declarant.
945 Section 17. Section 75-2a-119 is amended to read:
946 75-2a-119. Health care directive effect on insurance policies.
947 (1) If an [individual] adult makes a health care directive under this chapter, the health
948 care directive does not affect in any manner:
949 (a) the obligation of any life or medical insurance company regarding any policy of life
950 or medical insurance;
951 (b) the sale, procurement, or issuance of any policy of life or health insurance; or
952 (c) the terms of any existing policy.
953 (2) (a) Notwithstanding any terms of an insurance policy to the contrary, an insurance
954 policy is not legally impaired or invalidated in any manner by:
955 (i) withholding or withdrawing life sustaining procedures; or
956 (ii) following directions in a health care directive executed as provided in this chapter.
957 (b) Following health care instructions in a health care directive does not constitute

958 legal cause for failing to pay life or health insurance benefits. Death that occurs after following
959 the instructions of an advance health care directive or a surrogate's instructions does not for any
960 purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or
961 an annuity providing a death benefit.
962 (3) (a) The following may not require an [individual] adult to execute a directive or to
963 make any particular choices or entries in a directive under this chapter as a condition for being
964 insured for or receiving health care or life insurance contract services:
965 (i) a health care provider;
966 (ii) a health care facility;
967 (iii) a health maintenance organization;
968 (iv) an insurer issuing disability, health, or life insurance;
969 (v) a self-insured employee welfare or benefit plan;
970 (vi) a nonprofit medical service corporation or mutual nonprofit hospital service
971 corporation; or
972 (vii) any other person, firm, or entity.
973 (b) Nothing in this chapter:
974 (i) may be construed to require an insurer to insure risks otherwise considered by the
975 insurer as not a covered risk;
976 (ii) is intended to impair or supersede any other legal right or legal responsibility which
977 an [individual] adult may have to effect the withholding or withdrawal of life sustaining
978 procedures in any lawful manner; or
979 (iii) creates any presumption concerning the intention of an [individual] adult who has
980 not executed a health care directive.
981 Section 18. Section 75-2a-120 is amended to read:
982 75-2a-120. Judicial relief.
983 A district court may enjoin or direct a health care decision, or order other equitable
984 relief based on a petition filed by:
985 (1) a patient;
986 (2) an agent of a patient;
987 (3) a guardian of a patient;
988 (4) a default surrogate of a patient;

989 (5) a health care provider of a patient;
990 (6) a health care facility providing care for a patient; or
991 (7) an individual who meets the requirements of Section 75-2a-108 .
992 Section 19. Section 75-2a-121 is amended to read:
993 75-2a-121. Reciprocity.
994 Unless otherwise provided in the health care directive:
995 (1) a health care provider or health care facility may, in good faith, rely on any health
996 care directive, power of attorney, or similar instrument:
997 (a) executed in another state; or
998 (b) executed prior to January 1, 2008, in this state under the provisions of Chapter 2,
999 Part 11, Personal Choice and Living Will Act; [and]
1000 (2) a health care directive executed under the provisions of this chapter shall be
1001 governed pursuant to the provisions of this chapter that were in effect at that time, unless it
1002 appears from the directive that the declarant intended the current provisions of this chapter to
1003 apply; and
1004 [(2)] (3) the health care directive described in Subsection (1) is presumed to comply
1005 with the requirements of this chapter.
1006 Section 20. Section 75-2a-122 is amended to read:
1007 75-2a-122. Effect of act.
1008 The Advance Health Care Directive Act created in this chapter does not:
1009 (1) create a presumption concerning the intention of an [individual] adult who has not
1010 made or who has revoked an advance health care directive;
1011 (2) authorize mercy killing, assisted suicide, or euthanasia; [and] or
1012 (3) authorize the provision, withholding, or withdrawal of health care, to the extent
1013 prohibited by the laws of this state.
1014 Section 21. Section 75-2a-124 is amended to read:
1015 75-2a-124. Provisions cumulative with existing law.
1016 The provisions of this chapter are cumulative with existing law regarding [an
1017 individual's] a person's right to consent or refuse to consent to medical treatment and do not
1018 impair any existing rights or responsibilities that a health care provider, [an individual] a
1019 person, including a minor or incapacitated [individual] person, or [an individual's] a person's

1020 family or surrogate may have in regard to the provision, withholding or withdrawal of life
1021 sustaining procedures under the common law or statutes of the state.
1022 Section 22. Section 75-2a-125 is enacted to read:
1023 75-2a-125. Severability.
1024 If any one or more provision, section, subsection, sentence, clause, phrase, or word of
1025 this chapter, or the application of this chapter to any person or circumstance, is found to be
1026 unconstitutional, the same is hereby declared to be severable and the balance of this chapter
1027 shall remain effective notwithstanding such unconstitutionality. The Legislature hereby
1028 declares that it would have passed this chapter, and each provision, section, subsection,
1029 sentence, clause, phrase, or word of this chapter, irrespective of the fact that any one or more
1030 provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.




Legislative Review Note
as of 1-23-08 3:46 PM

Office of Legislative Research and General Counsel