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S.B. 161 Enrolled
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
17 . replaces the physician order for life sustaining treatment form with a life with dignity
18 order and establishes procedures and requirements relating to the order;
19 . describes who may witness the making or revocation of an advance health care
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 before
26 the effective date of this bill; and
27 . makes technical changes.
28 Monies Appropriated in this Bill:
30 Other Special Clauses:
32 Utah Code Sections Affected:
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-121, as enacted by Laws of Utah 2007, Chapter 31
51 75-2a-122, as enacted by Laws of Utah 2007, Chapter 31
52 75-2a-123, as enacted by Laws of Utah 2007, Chapter 31
53 75-2a-124, as enacted by Laws of Utah 2007, Chapter 31
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
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 treating
64 medical conditions and make possible the unnatural prolongation of life;
65 (b) [
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 pain;
70 (c) Utah law should:
71 (i) provide [
72 express preferences about health care options to go into effect only after the [
73 loses the ability to make or communicate health care decisions, including decisions about
74 end-of-life care; and
75 (ii) promote [
76 effectively within the health care system;
77 (d) surrogate decisions made on behalf of [
78 capacity to make health care decisions, but who has lost health care decision making capacity
79 should be based on:
80 (i) input from the incapacitated [
82 (ii) specific preferences expressed by the [
83 care decision making capacity;
84 (iii) the surrogate's understanding of the [
86 (iv) the surrogate's understanding of what the [
87 under the circumstances; and
88 (e) surrogate decisions made on behalf of an [
89 care decision making capacity should be made on the basis of the [
91 (2) In recognition of the dignity and privacy that [
92 entitled to expect, and to protect the right of an [
93 without the [
94 right to make binding advance health care directives directing health care providers to:
95 (a) provide life sustaining [
96 (b) withhold or withdraw health care; or
97 (c) provide health care only to the extent set forth in [
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 (2) "Advance health care directive":
106 (a) includes:
107 (i) a designation of an agent to make health care decisions for an adult when the adult
108 cannot make or communicate health care decisions; or
109 (ii) an expression of preferences about health care decisions;
110 (b) may take one of the following forms:
111 (i) a written document, voluntarily executed by an adult in accordance with the
112 requirements of this chapter; or
113 (ii) a witnessed oral statement, made in accordance with the requirements of this
114 chapter; and
115 (c) does not include a life with dignity order.
117 health care decisions for the declarant.
118 (4) "APRN" means a person who is:
119 (a) certified or licensed as an advance practice registered nurse under Subsection
120 58-31b-301 (2)(d);
121 (b) an independent practitioner;
122 (c) acting under a consultation and referral plan with a physician; and
123 (d) acting within the scope of practice for that person, as provided by law, rule, and
124 specialized certification and training in that person's area of practice.
126 a treatment outweigh the burdens to the [
127 into account:
128 (a) the effect of the treatment on the physical, emotional, and cognitive functions of the
130 (b) the degree of physical pain or discomfort caused to the [
131 treatment or the withholding or withdrawal of treatment;
132 (c) the degree to which the [
133 the withholding or withdrawal of treatment, result in a severe and continuing impairment of the
134 dignity of the [
136 (d) the effect of the treatment on the life expectancy of the [
137 (e) the prognosis of the [
138 (f) the risks, side effects, and benefits of the treatment, or the withholding or
139 withdrawal of treatment; and
140 (g) the religious beliefs and basic values of the [
141 to the extent these may assist the decision maker in determining the best interest.
143 the consequences of appointing a particular person as agent.
145 directed the signing of [
147 decisions for an individual when either:
148 (a) an agent or guardian has not been appointed; or
149 (b) an agent is not able [
151 (9) "Emergency medical services provider" means a person who is licensed, designated,
152 or certified under Title 26, Chapter 8a, Utah Emergency Medical Services System Act.
154 (a) is defined only for the purpose of:
155 (i) this chapter and does not define the standard of care for any other purpose under
156 Utah law; and
157 (ii) enabling health care providers to interpret the statutory form set forth in Section
158 75-2a-117 ; and
159 (b) means the standard of care that justifies a provider in declining to provide life
160 sustaining [
161 (i) will not prevent or reduce the deterioration in the health or functional status of [
163 (ii) will not prevent the impending death of [
164 (iii) will impose more burden on the [
168 maintain, diagnose, or otherwise affect [
170 (a) means a decision about an [
173 (b) includes:
174 (i) selection and discharge of a health care provider and a health care facility;
175 (ii) approval or disapproval of diagnostic tests, procedures, programs of medication,
176 and orders not to resuscitate; and
177 (iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and
178 all other forms of health care; and
179 (c) does not include decisions about [
180 interactions other than as indirectly affected by the health care decision.
182 to make an informed decision about receiving or refusing health care, including:
183 (a) the ability to understand the nature, extent, or probable consequences of [
184 status and health care alternatives;
185 (b) the ability to make a rational evaluation of the burdens, risks, benefits, and
186 alternatives [
187 (c) the ability to communicate a decision.
199 (a) a health care facility as defined in Title 26, Chapter 21, Health Care Facility
200 Licensing and Inspection Act; and
201 (b) private offices of physicians, dentists, and other health care providers licensed to
202 provide health care under Title 58, Occupations and Professions.
204 not include an emergency medical services provider.
212 (16) (a) "Life sustaining care" means any medical intervention, including procedures,
213 administration of medication, or use of a medical device, that maintains life by sustaining,
214 restoring, or supplanting a vital function.
215 (b) "Life sustaining care" does not include care provided for the purpose of keeping a
216 person comfortable.
217 (17) "Life with dignity order" means an order, designated by the Department of Health
218 under Section 75-2a-106 (5)(a), that gives direction to health care providers, health care
219 facilities, and emergency medical services providers regarding the specific health care decisions
220 of the person to whom the order relates.
221 (18) "Minor" means a person who:
222 (a) is under 18 years of age; and
223 (b) is not an emancipated minor.
224 (19) "Physician" means a physician and surgeon or osteopathic surgeon licensed under
225 Title 58, Chapter 67, Utah Medical Practice Act or Chapter 68, Utah Osteopathic Medical
226 Practice Act.
228 (a) readily able to be contacted without undue effort; and
229 (b) willing and able to act in a timely manner considering the urgency of the [
231 (21) "Substituted judgment" means the standard to be applied by a surrogate when
232 making a health care decision for an adult who previously had the capacity to make health care
233 decisions, which requires the surrogate to consider:
234 (a) specific preferences expressed by the adult:
235 (i) when the adult had the capacity to make health care decisions; and
236 (ii) at the time the decision is being made;
237 (b) the surrogate's understanding of the adult's health care preferences;
238 (c) the surrogate's understanding of what the adult would have wanted under the
239 circumstances; and
240 (d) to the extent that the preferences described in Subsections (21)(a) through (c) are
241 unknown, the best interest of the adult.
243 (a) an appointed agent;
244 (b) a default surrogate [
245 (c) a [
246 Section 3. Section 75-2a-104 is amended to read:
247 75-2a-104. Capacity to make health care decisions -- Presumption -- Overcoming
249 (1) An [
250 (a) health care decision making capacity; and
251 (b) capacity to make or revoke [
252 (2) To overcome the presumption of capacity, a physician or an APRN who has
253 personally examined the [
254 decision making capacity must:
255 (a) find that the [
256 (b) record the finding in the [
257 whether the [
258 (c) make a reasonable effort to communicate the determination to:
259 (i) the [
260 (ii) other health care providers or health care facilities that the physician or APRN
261 would routinely inform of such a finding; and
262 (iii) if the [
263 (3) (a) If a physician or APRN finds that an [
264 making capacity in accordance with Subsection (2), the [
265 challenge the finding by:
266 (i) submitting to a health care provider a written notice stating that the [
267 disagrees with the physician's finding; or
268 (ii) orally informing the health care provider that the [
269 the [
270 (b) A health care provider who is informed of a challenge [
271 Subsection (3)(a), shall, if the adult has a surrogate, promptly inform [
273 (c) A surrogate informed of a challenge to a finding under this section, or the
275 following of the [
276 (i) any other health care providers involved in the [
277 (ii) the health care facility, if any, in which the [
280 (d) Unless otherwise ordered by a court, a finding by a physician, under Subsection (2),
281 that the adult lacks health care decision making capacity, is not in effect if the adult challenges
282 the finding under Subsection (3)(a).
283 (e) If an [
284 (2), the health care provider and health care facility may rely on a surrogate, pursuant to the
285 provisions of this chapter, to make health care decisions for the [
286 (4) A health care provider or health care facility [
287 relies on a surrogate to make decisions on behalf of an [
288 obligation to consider whether the [
289 making capacity.
290 (5) If at any time a health care provider finds, based on an examination and assessment,
291 that the [
292 provider shall record the results of the assessment in the [
293 and the [
294 Section 4. Section 75-2a-105 is amended to read:
295 75-2a-105. Capacity to complete an advance health care directive.
296 (1) An [
297 health care directive.
298 (2) An [
299 under the provisions of Section 75-2a-104 :
300 (a) lacks the capacity to give an advance health care directive, including Part II of the
301 form created in Section 75-2a-117 , or any other substantially similar form expressing a health
302 care preference; and
303 (b) may retain the capacity to appoint an agent and complete Part I of the form created
304 in Section 75-2a-117 .
305 (3) The following factors shall be considered by a health care provider, attorney, or
306 court when determining whether an [
307 retained the capacity to appoint an agent:
308 (a) whether the [
309 person as agent;
310 (b) whether the choice of agent is consistent with past relationships and patterns of
311 behavior between the [
312 there is a reasonable justification for the change; and
313 (c) whether the [
314 at times when, or in settings where, the [
315 communicate decisions.
316 Section 5. Section 75-2a-106 is repealed and reenacted to read:
317 75-2a-106. Emergency medical services -- Life with dignity order.
318 (1) A life with dignity order may be created by or on behalf of a person as described in
319 this section.
320 (2) A life with dignity order shall, in consultation with the person authorized to consent
321 to the order pursuant to this section, be prepared by:
322 (a) the physician or APRN of the person to whom the life with dignity order relates; or
323 (b) a health care provider who:
324 (i) is acting under the supervision of a person described in Subsection (2)(a); and
325 (ii) is:
326 (A) a nurse, licensed under Title 58, Chapter 31b, Nurse Practice Act;
327 (B) a physician assistant, licensed under Title 58, Chapter 70a, Physician Assistant Act;
328 (C) a mental health professional, licensed under Title 58, Chapter 60, Mental Health
329 Professional Practice Act; or
330 (D) another health care provider, designated by rule as described in Subsection (10).
331 (3) A life with dignity order shall be signed:
332 (a) personally, by the physician or APRN of the person to whom the life with dignity
333 order relates; and
334 (b) (i) if the person to whom the life with dignity order relates is an adult with health
335 care decision making capacity, by:
336 (A) the person; or
337 (B) an adult who is directed by the person to sign the life with dignity order on behalf of
338 the person;
339 (ii) if the person to whom the life with dignity order relates is an adult who lacks health
340 care decision making capacity, by:
341 (A) the surrogate with the highest priority under Section 75-2a-111 ;
342 (B) the majority of the class of surrogates with the highest priority under Section
343 75-2a-111 ; or
344 (C) a person directed to sign the order by, and on behalf of, the persons described in
345 Subsection (3)(b)(ii)(A) or (B); or
346 (iii) if the person to whom the life with dignity order relates is a minor, by a parent or
347 guardian of the minor.
348 (4) If a life with dignity order relates to a minor and directs that life sustaining treatment
349 be withheld or withdrawn from the minor, the order shall include a certification by two
350 physicians that, in their clinical judgment, an order to withhold or withdraw life sustaining
351 treatment is in the best interest of the minor.
352 (5) A life with dignity order:
353 (a) shall be in writing, on a form approved by the Department of Health;
354 (b) shall state the date on which the order was made;
355 (c) may specify the level of life sustaining care to be provided to the person to whom
356 the order relates; and
357 (d) may direct that life sustaining care be withheld or withdrawn from the person to
358 whom the order relates.
359 (6) A health care provider or emergency medical service provider, licensed or certified
360 under Title 26, Chapter 8a, Utah Emergency Medical Services System Act, is immune from civil
361 or criminal liability, and is not subject to discipline for unprofessional conduct, for:
362 (a) complying with a life with dignity order in good faith; or
363 (b) providing life sustaining treatment to a person when a life with dignity order directs
364 that the life sustaining treatment be withheld or withdrawn.
365 (7) To the extent that the provisions of a life with dignity order described in this section
366 conflict with the provisions of an advance health care directive made under Section 75-2a-107 ,
367 the provisions of the life with dignity order take precedence.
368 (8) An adult, or a parent or guardian of a minor, may revoke a life with dignity order
370 (a) orally informing emergency service personnel;
371 (b) writing "void" across the form;
372 (c) burning, tearing, or otherwise destroying or defacing:
373 (i) the form; or
374 (ii) a bracelet or other evidence of the life with dignity order;
375 (d) asking another adult to take the action described in this Subsection (8) on the
376 person's behalf;
377 (e) signing or directing another adult to sign a written revocation on the person's behalf;
378 (f) stating, in the presence of an adult witness, that the person wishes to revoke the
379 order; or
380 (g) completing a new life with dignity order.
381 (9) (a) Except as provided in Subsection (9)(c), a surrogate for an adult who lacks
382 health care decision making capacity may only revoke a life with dignity order if the revocation
383 is consistent with the substituted judgment standard.
384 (b) Except as provided in Subsection (9)(c), a surrogate who has authority under this
385 section to sign a life with dignity order may revoke a life with dignity order, in accordance with
386 Subsection (9)(a), by:
387 (i) signing a written revocation of the life with dignity order; or
388 (ii) completing and signing a new life with dignity order.
389 (c) A surrogate may not revoke a life with dignity order during the period of time
390 beginning when an emergency service provider is contacted for assistance, and ending when the
391 emergency ends.
392 (10) (a) The Department of Health shall adopt rules, in accordance with Title 63,
393 Chapter 46a, Utah Administrative Rulemaking Act, to:
394 (i) create the forms and systems described in this section; and
395 (ii) develop uniform instructions for the form established in Section 75-2a-117 .
396 (b) The Department of Health may adopt rules, in accordance with Title 63, Chapter
397 46a, Utah Administrative Rulemaking Act, to designate health care professionals, in addition to
398 those described in Subsection (2)(b)(ii), who may prepare a life with dignity order.
399 (c) The Department of Health may assist others with training of health care
400 professionals regarding this chapter.
401 Section 6. Section 75-2a-107 is amended to read:
402 75-2a-107. Advance health care directive -- Appointment of agent -- Powers of
403 agent -- Health care directions.
404 (1) (a) An [
406 (i) appoint a health care agent or choose not to appoint a health care agent;
407 (ii) give directions for the care of the [
408 health care decision making capacity [
409 (iii) choose not to give directions;
411 withheld or withdrawn;
413 medical research;
418 (b) An advance health care directive may be oral or written.
419 (c) An advance health care directive shall be witnessed by a disinterested [
420 adult. The witness may not be:
421 (i) the person who signed the directive on behalf of the declarant;
422 (ii) related to the declarant by blood or marriage;
423 (iii) entitled to any portion of the declarant's estate according to the laws of intestate
424 succession of this state or under any will or codicil of the declarant;
425 (iv) the beneficiary of any of the following that are held, owned, made, or established
426 by, or on behalf of, the declarant:
427 (A) a life insurance policy;
428 (B) a trust;
429 (C) a qualified plan;
430 (D) a pay on death account; or
431 (E) a transfer on death deed;
432 (v) entitled to benefit financially upon the death of the declarant;
433 (vi) entitled to a right to, or interest in, real or personal property upon the death of the
437 (A) providing care to the declarant; or
438 (B) an administrator at a health care facility in which the declarant is receiving care; or
440 (d) The witness to an oral advance health care directive shall state the circumstances
441 under which the directive was made.
456 care provider for the declarant, or an owner, operator, or employee of the health care facility at
457 which the declarant is receiving care unless the agent is related to the declarant by blood,
458 marriage, or adoption.
461 Section 7. Section 75-2a-108 is amended to read:
462 75-2a-108. Default surrogates.
463 (1) (a) Any member of the class described in Subsection (1)(b) may act as an
465 (i) (A) the adult has not appointed an agent [
466 (B) an appointed agent is not reasonably available; [
467 (C) a guardian has not been appointed; and
468 (ii) the member of the class described in Subsection (1)(b) is:
469 (A) over 18 years of age;
470 (B) has health care decision making capacity;
471 (C) is reasonably available; and
472 (D) has not been disqualified by the [
473 (b) [
474 following classes of the [
475 the [
478 (i) the [
479 separated [
482 (ii) the following family members:
488 (E) a grandparent.
489 (c) A person described in Subsection (1)(b), may not direct an adult's care if a person of
490 a higher priority class is able and willing to act as a surrogate for the adult.
491 (d) A court may disqualify a person described in Subsection (1)(b) from acting as a
492 surrogate if the court finds that the person has acted in a manner that is inconsistent with the
493 position of trust in which a surrogate is placed.
494 (2) If the family members designated in Subsection (1)(b) are not reasonably available
495 to act as a surrogate [
496 those designated in Subsection (1) may act as a surrogate if the person:
497 (a) has health care decision making capacity;
498 (b) has exhibited special care and concern for the patient;
499 (c) [
500 (d) is reasonably available to act as a surrogate.
501 (3) The surrogate shall communicate the surrogate's assumption of authority as
502 promptly as practicable to the members of a class who:
503 (a) have an equal or higher priority and are not acting as surrogate; and
504 (b) can be readily contacted.
505 (4) A health care provider shall comply with the decision of a majority of the members
506 of [
507 (a) more than one member of [
508 default surrogate;
509 (b) the members of the class do not agree on a health care decision; and
510 (c) the health care provider is informed of the disagreement among the members of the
512 (5) (a) [
513 including a member of the [
514 surrogate by:
515 (i) a signed writing;
516 (ii) personally informing a witness of the disqualification [
525 (iii) [
526 (b) Disqualification of a [
527 been [
529 the right to act as a default surrogate, the health care provider may:
530 (a) require the person to provide a sworn statement giving facts and circumstances
531 reasonably sufficient to establish the claimed authority; or
532 (b) seek a ruling from the court under Section 75-2a-120 .
534 75-2a-120 if the health care provider has evidence that a surrogate is making decisions that are
535 inconsistent with [
536 Section 8. Section 75-2a-109 is amended to read:
537 75-2a-109. Effect of current health care preferences -- When a surrogate may act.
538 (1) An [
539 make health care decisions as long as the [
540 capacity as defined in Section 75-2a-103 . For purposes of this chapter, the inability to
541 communicate through speech does not mean that the [
542 decision making capacity.
543 (2) An [
544 indicated, always supersede an [
548 (3) Unless otherwise directed in an advance health care directive, an advance health
549 care directive or the authority of a surrogate to make health care decisions on behalf of an adult:
550 (a) is effective only after a physician makes a determination of incapacity as provided in
551 Section 75-2a-104 ;
552 (b) remains in effect during any period of time in which the declarant lacks capacity to
553 make health care decisions; and
554 (c) ceases to be effective when:
555 (i) a declarant disqualifies a surrogate or revokes the advance health care directive;
556 (ii) a health care provider finds that the declarant has health care decision making
558 (iii) a court issues an order invalidating a health care directive; or
559 (iv) the declarant has challenged the finding of incapacity under the provisions of
560 Subsection 75-2a-104 (3).
561 Section 9. Section 75-2a-110 is amended to read:
562 75-2a-110. Surrogate decision making -- Scope of authority.
563 (1) A surrogate [
564 or 75-2a-108 shall make health care decisions in accordance with:
565 (a) the [
566 (b) the [
573 (c) the substituted judgment standard.
575 (a) may not admit the [
576 custodial placement other than for assessment, rehabilitative, or respite care [
578 (b) may make health care decisions, including decisions to terminate life sustaining
579 treatment for the [
580 Subsection (1).
582 criminal liability or claims of unprofessional conduct for surrogate health care decisions made:
583 (a) in accordance with this section; and [
584 (b) in good faith.
585 Section 10. Section 75-2a-111 is amended to read:
586 75-2a-111. Priority of decision makers.
587 (1) The following is the order of priority of those authorized to make health care
588 decisions on behalf of an [
589 decision making capacity under Section 75-2a-104 :
591 Section 75-2a-107 unless the agent has been disqualified by:
596 75-2a-108 .
597 (2) A health care provider or health care facility obtaining consent for health care from
598 a surrogate shall make a reasonable effort to identify and obtain consent from the surrogate with
599 the highest priority.
600 Section 11. Section 75-2a-112 is amended to read:
601 75-2a-112. Decisions by guardian.
602 (1) A court-appointed guardian shall comply with [
603 health care directive and may not revoke the [
604 unless the court, for cause, expressly revokes the [
605 (2) A health care decision of an agent takes precedence over that of a guardian, in the
606 absence of a court order to the contrary.
607 (3) Except as provided in Subsections (1) and (2), a health care decision made by a
608 guardian for the [
609 (4) A guardian is not subject to civil or criminal liability or to claims of unprofessional
610 conduct for a surrogate health care decision made:
611 (a) in good faith; and
612 (b) in accordance with Section 75-2a-110 [
613 Section 12. Section 75-2a-113 is amended to read:
614 75-2a-113. Personal representative status.
615 A surrogate [
616 personal representative for [
617 Accountability Act of 1996 when:
618 (1) the [
619 capacity under Section 75-2a-104 ;
620 (2) the [
621 (a) in writing; or
622 (b) by other expression before a witness who is not the surrogate or agent; or
623 (3) the court appoints a guardian authorized to make health care decisions on behalf of
624 the [
625 Section 13. Section 75-2a-114 is amended to read:
626 75-2a-114. Revocation of directive.
627 (1) An advance directive may be revoked at any time by the declarant by:
628 (a) writing "void" across the document;
629 (b) obliterating, burning, tearing, or otherwise destroying or defacing the document in
630 any manner indicating an intent to revoke;
631 (c) instructing another to do one of the acts described in Subsection (1)(a) or (b);
632 (d) a written revocation of the directive signed and dated by:
633 (i) the declarant; or
634 (ii) [
635 (A) signing on behalf of the declarant; and
636 (B) acting at the direction of the declarant; or
637 (e) an oral expression of an intent to revoke the directive in the presence of a witness
638 who is age 18 years or older and who is not:
639 (i) related to the declarant by blood or marriage;
640 (ii) entitled to any portion of the declarant's estate according to the laws of intestate
641 succession of this state or under any will or codicil of the declarant;
642 (iii) the beneficiary of any of the following that are held, owned, made, or established
643 by, or on behalf of, the declarant:
644 (A) a life insurance policy;
645 (B) a trust;
646 (C) a qualified plan;
647 (D) a pay on death account; or
648 (E) a transfer on death deed;
649 (iv) entitled to benefit financially upon the death of the declarant;
650 (v) entitled to a right to, or interest in, real or personal property upon the death of the
654 (A) providing care to the declarant; or
655 (B) an administrator at a health care facility in which the declarant is receiving care; or
662 annulment, divorce, or legal separation.
664 care directive revokes the earlier directive to the extent of the conflict.
665 Section 14. Section 75-2a-115 is amended to read:
666 75-2a-115. Notification to health care provider -- Obligations of health care
667 providers -- Liability.
668 (1) It is the responsibility of the declarant or surrogate, to the extent that the
669 responsibility is not assigned to a health care provider or health care facility by state or federal
670 law, to notify or provide for notification to a health care provider and a health care facility of:
671 (a) the existence of a health care directive;
672 (b) the revocation of a health care directive;
673 (c) the existence or revocation of appointment of an agent or default surrogate;
674 (d) the disqualification of a default surrogate; or
675 (e) the appointment or revocation of appointment of a guardian.
676 (2) (a) A health care provider or health care facility is not subject to civil or criminal
677 liability or to claims of unprofessional conduct for failing to act upon a health care directive, a
678 revocation of a health care directive, or a disqualification of a surrogate until the health care
679 provider or health care facility has received an oral directive from an [
680 of a written directive or revocation of the health care directive, or the disqualification of the
682 (b) A health care provider and health care facility that is notified under Subsection (1)
683 shall include in the [
684 (i) the health care directive or a copy of it, a revocation of a health care directive, or a
685 disqualification of a surrogate; and
686 (ii) the date, time, and place in which any written or oral notice of the document
687 described in this Subsection (2)(b) is received.
688 (3) A health care provider or health care facility acting in good faith and in accordance
689 with generally accepted health care standards is not subject to civil or criminal liability or to
690 discipline for unprofessional conduct for:
691 (a) complying with a health care decision made by an adult with health care decision
692 making capacity;
694 authority to make a health care decision for [
695 withhold or withdraw health care;
697 that the surrogate then lacked authority;
699 lacks decision making capacity;
701 determination, under Section 75-2a-120 of:
702 (i) the validity of a health care directive;
703 (ii) the validity of directions from a surrogate or guardian;
704 (iii) the decision making capacity of an [
705 finding of incapacity; or
706 (iv) the authority of a guardian or surrogate; or
708 was valid when made, and has not been revoked or terminated.
709 (4) (a) Health care providers and health care facilities shall:
710 (i) cooperate with a person authorized under this chapter to make written directives
711 concerning health care;
712 (ii) unless the provisions of Subsection (4)(b) apply, comply with:
713 (A) a health care decision of an [
714 (B) a health care decision made by [
715 make health care decisions for an [
716 been made by [
717 (iii) before implementing a health care decision made by a surrogate, make a reasonable
718 attempt to communicate to the [
719 (A) the decision made; and
720 (B) the identity of the surrogate making the decision.
721 (b) A health care provider or health care facility may decline to comply with a [
723 (i) in the opinion of the health care provider:
724 (A) the [
726 (B) the surrogate who made the decision lacks health care decision making capacity;
727 (C) the health care provider has evidence that the surrogate's instructions are
728 inconsistent with the [
729 person who has always lacked health care decision making capacity, that the surrogate's
730 instructions are inconsistent with the best interest of the [
731 (D) there is reasonable doubt regarding the status of [
732 the right to act as a default surrogate, in which case the health care provider shall comply with
733 Subsection 75-2a-108 [
734 (ii) the health care provider declines to comply for reasons of conscience.
735 (c) A health care provider or health care facility that declines to comply with a health
736 care [
737 (i) promptly inform the [
739 (ii) make a good faith attempt to resolve the conflict; and
740 (iii) provide continuing care to the [
741 a transfer can be made to a health care provider or health care facility that will implement the
742 requested instruction or decision.
743 (d) A health care provider or health care facility that declines to comply with a health
744 care instruction, after meeting the obligations set forth in Subsection (4)(c) may transfer the
746 requested health care decisions.
747 (e) A health care facility may decline to follow a health care decision for reasons of
748 conscience under Subsection (4)(b)(ii) if:
749 (i) the health care decision [
750 expressly based on reasons of conscience;
751 (ii) the policy was timely communicated to the [
752 an adult's surrogate;
753 (iii) the facility promptly informs the [
754 then authorized to make decisions for the [
755 (iv) the facility provides continuing care to the [
756 made to a health care facility that will implement the requested instruction or decision; and
757 (v) unless [
758 decisions for [
759 to assist in the transfer of the [
760 the instructions or decisions.
761 (5) A health care provider and health care facility:
762 (a) may not require or prohibit the creation or revocation of an advance health care
763 directive as a condition for providing health care; and
764 (b) shall comply with all state and federal laws and regulations governing advance
765 health care directives.
766 Section 15. Section 75-2a-117 is amended to read:
767 75-2a-117. Optional form.
768 (1) The form created in Subsection (2), or a substantially similar form, is presumed
769 valid under this chapter.
770 (2) The following form is presumed valid under Subsection (1):
773 Part I: Allows you to name another person to make health care decisions for you when you
774 cannot make decisions or speak for yourself.
775 Part II: Allows you to record your wishes about health care in writing.
776 Part III: Tells you how to revoke [
777 Part IV: Makes your directive legal.
780 Name: ____________________________________________________________________
781 Street Address: _____________________________________________________________
782 City, State, Zip Code:
784 Telephone: _________________________ Cell Phone: ____________________________
785 Birth date: _____________
788 A. No Agent
789 If you do not want to name an agent: initial the box below, then go to Part II; do not name an
790 agent in B or C below. No one can force you to name an agent.
791 ______ I do not want to choose an agent. [
794 B. My Agent
795 Agent's Name:
797 Street Address:
799 City, State, Zip Code:
801 Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
802 C. My Alternate Agent
803 This person will serve as your agent if your agent, named above, is unable or unwilling to serve.
804 Alternate Agent's Name:
806 Street Address:
808 City, State, Zip Code:
810 Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
811 D. Agent's Authority
812 If I cannot make decisions or speak for myself (in other words, after my physician or APRN
813 finds that I lack health care decision making capacity under Section 75-2a-104 of the Advance
814 Health Care Directive Act), my agent [
815 could have made such as, but not limited to:
817 such as food and fluids by tube, use of antibiotics, CPR (cardiopulmonary resuscitation), and
818 dialysis, and mental health care, such as convulsive therapy and psychoactive medications. This
819 authority is subject to any limits in paragraph F of [
824 a mental health facility, subject to any limits in paragraphs E [
827 My agent cannot force health care against my will, even if a physician has found that I lack
828 health care decision making capacity.
829 E. Other Authority
830 My agent has the powers below ONLY IF I [
831 that precedes the statement. I authorize my agent to:
833 I can speak for myself.
835 hospital, nursing home, assisted living, or other [
836 other than convalescent or recuperative care[
837 F. Limits/Expansion of Authority
838 I wish to limit or expand the powers of my [
841 G. Nomination of Guardian
842 Even though appointing an agent should help you avoid a guardianship, a guardianship may still
843 be necessary. Initial the "YES" option if you want the court to appoint your agent or, if your
844 agent is unable or unwilling to serve, your alternate agent, to serve as your guardian, if a
845 guardianship is ever necessary.
848 I, being of sound mind and not acting under duress, fraud, or other undue influence, do hereby
849 nominate my agent, or if my agent is unable or unwilling to serve, I hereby nominate my
850 alternate agent, to serve as my guardian in the event that, after the date of this instrument, I
851 become incapacitated.
852 H. Consent to Participate in Medical Research
854 medical research or clinical trials, even if I may not benefit from the results.
855 I. [
857 agent may consent to the donation of my organs for the purpose of organ transplantation.
863 I want my health care providers to follow the instructions I give them when I am being treated[
865 with these or other advance directives. My health care providers should always provide
867 Choose only one of the following options, numbered Option 1 through Option 4, by placing
868 your initials before the numbered statement [
869 one option. If you do not wish to document end-of-life wishes, initial Option 4. You may
870 choose to draw a line through the options that you are not choosing.
871 Option 1
873 I choose to let my agent decide. I have chosen my agent carefully. I have talked with my agent
874 about my health care wishes. I trust my agent to make the health care decisions for me that I
875 would make under the circumstances. [
877 Additional Comments:
879 Option 2
880 ________ Initial
881 I choose to prolong life. Regardless of my condition or prognosis, I want my health care team
882 to try to prolong my life as long as possible within the limits of generally accepted health care
886 Option 3
887 ________ Initial
888 I choose not to receive care for the purpose of prolonging life, including food and fluids by
889 tube, antibiotics, CPR, or dialysis being used to prolong my life. I always want comfort care
890 and routine medical care that will keep me as comfortable and functional as possible, even if that
891 care may prolong my life.
892 If you choose this option, you must also choose either (a) or (b), below.
893 ______ Initial
894 (a) I put no limit on the ability of my health care provider or agent to withhold or withdraw
895 life-sustaining care.
896 If you selected (a), above, do not choose any options under (b).
897 ______ Initial
898 (b) My health care provider should withhold or withdraw life-sustaining care if at least one of
899 the following initialed conditions is met:
904 condition will improve.
925 Option 4
926 ________ Initial
927 I do not wish to express preferences about health care wishes in this directive.
930 Additional [
933 If you do not want emergency medical service providers to provide CPR or other life sustaining
934 measures, you must work with a physician or APRN to complete an order that reflects your
935 wishes on a form approved by the Utah Department of Health.
937 I may revoke or change this directive by:
938 1. Writing "void" across the form, or burning, tearing, or otherwise destroying or defacing [
939 this document or [
940 2. Signing a written revocation of the directive, or directing another person to sign a [
941 revocation on my behalf;
942 3. Stating that I wish to revoke the directive in the presence of a witness who [
945 not be appointed as my agent in a substitute directive; will not become a default surrogate if the
946 directive is revoked; and signs and dates a written document confirming my statement; or
947 4. Signing a new directive. (If you sign more than one Advance Health Care Directive, the
948 most recent one applies.)
950 I sign this directive voluntarily. I understand the choices I have made[
951 emotionally and mentally [
952 revokes any living will or power of attorney form, naming a health care agent, that I have
953 completed in the past.
959 City, County, and State of Residence
960 I have witnessed the signing of this directive, I am 18 years of age or older, and I am not:
961 1. related to the declarant by blood or marriage;
962 2. entitled to any portion of the declarant's estate according to the laws of intestate succession
963 of [
964 3. a beneficiary of a life insurance policy, trust, qualified plan, pay on death account, or transfer
965 on death deed that is held, owned, made, or established by, or on behalf of, the declarant;
966 4. entitled to benefit financially upon the death of the declarant;
967 5. entitled to a right to, or interest in, real or personal property upon the death of the declarant;
970 health care facility in which the declarant is receiving care; or
973 _____________________________________ __________________________________
974 Signature of Witness Printed Name of Witness
975 _____________________________________ ___________ _________ _________
976 Street Address City State Zip Code
977 If the witness is signing to confirm an oral directive, describe below the circumstances under
978 which the directive was made.
981 Section 16. Section 75-2a-118 is amended to read:
982 75-2a-118. Illegal destruction or falsification of health care directive.
983 (1) A person is guilty of a class B misdemeanor if the person:
984 (a) willfully conceals, cancels, defaces, obliterates, or damages a health care directive of
985 another without the declarant's consent; or
986 (b) falsifies, forges, or alters a health care directive or a revocation of the health care
987 directive of another [
988 (2) A person is guilty of criminal homicide if:
989 (a) the person:
990 (i) falsifies or forges the health care directive of [
991 (ii) willfully conceals or withholds personal knowledge of:
992 (A) the existence of a health care directive;
995 (b) the actions described in Subsection (2)(a) cause a withholding or withdrawal of life
996 sustaining procedures contrary to the wishes of a declarant resulting in the death of the
998 Section 17. Section 75-2a-119 is amended to read:
999 75-2a-119. Health care directive effect on insurance policies.
1000 (1) If an [
1001 care directive does not affect in any manner:
1002 (a) the obligation of any life or medical insurance company regarding any policy of life
1003 or medical insurance;
1004 (b) the sale, procurement, or issuance of any policy of life or health insurance; or
1005 (c) the terms of any existing policy.
1006 (2) (a) Notwithstanding any terms of an insurance policy to the contrary, an insurance
1007 policy is not legally impaired or invalidated in any manner by:
1008 (i) withholding or withdrawing life sustaining procedures; or
1009 (ii) following directions in a health care directive executed as provided in this chapter.
1010 (b) Following health care instructions in a health care directive does not constitute legal
1011 cause for failing to pay life or health insurance benefits. Death that occurs after following the
1012 instructions of an advance health care directive or a surrogate's instructions does not for any
1013 purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or
1014 an annuity providing a death benefit.
1015 (3) (a) The following may not require an [
1016 make any particular choices or entries in a directive under this chapter as a condition for being
1017 insured for or receiving health care or life insurance contract services:
1018 (i) a health care provider;
1019 (ii) a health care facility;
1020 (iii) a health maintenance organization;
1021 (iv) an insurer issuing disability, health, or life insurance;
1022 (v) a self-insured employee welfare or benefit plan;
1023 (vi) a nonprofit medical service corporation or mutual nonprofit hospital service
1024 corporation; or
1025 (vii) any other person, firm, or entity.
1026 (b) Nothing in this chapter:
1027 (i) may be construed to require an insurer to insure risks otherwise considered by the
1028 insurer as not a covered risk;
1029 (ii) is intended to impair or supersede any other legal right or legal responsibility which
1030 an [
1031 procedures in any lawful manner; or
1032 (iii) creates any presumption concerning the intention of an [
1033 not executed a health care directive.
1034 Section 18. Section 75-2a-121 is amended to read:
1035 75-2a-121. Reciprocity -- Application of former provisions of law.
1036 Unless otherwise provided in the health care directive:
1037 (1) a health care provider or health care facility may, in good faith, rely on any health
1038 care directive, power of attorney, or similar instrument:
1039 (a) executed in another state; or
1040 (b) executed prior to January 1, 2008, in this state under the provisions of Chapter 2,
1041 Part 11, Personal Choice and Living Will Act; [
1042 (2) a health care directive executed under the provisions of this chapter shall be
1043 governed pursuant to the provisions of this chapter that were in effect at that time, unless it
1044 appears from the directive that the declarant intended the current provisions of this chapter to
1045 apply; and
1047 with the requirements of this chapter.
1048 Section 19. Section 75-2a-122 is amended to read:
1049 75-2a-122. Effect of act.
1050 The Advance Health Care Directive Act created in this chapter does not:
1051 (1) create a presumption concerning the intention of an [
1052 made or who has revoked an advance health care directive;
1053 (2) authorize mercy killing, assisted suicide, or euthanasia; [
1054 (3) authorize the provision, withholding, or withdrawal of health care, to the extent
1055 prohibited by the laws of this state.
1056 Section 20. Section 75-2a-123 is amended to read:
1057 75-2a-123. Pregnancy.
1058 (1) A health care directive that provides for the withholding or withdrawal of life
1059 sustaining procedures has no force during the course of a declarant's pregnancy.
1060 (2) Subsection (1) does not negate the appointment of a health care agent during the
1061 course of a declarant's pregnancy.
1062 Section 21. Section 75-2a-124 is amended to read:
1063 75-2a-124. Provisions cumulative with existing law.
1064 The provisions of this chapter are cumulative with existing law regarding [
1066 impair any existing rights or responsibilities that a health care provider, [
1067 including a minor or incapacitated [
1068 surrogate may have in regard to the provision, withholding or withdrawal of life sustaining
1069 procedures under the common law or statutes of the state.
1070 Section 22. Section 75-2a-125 is enacted to read:
1071 75-2a-125. Severability.
1072 If any one or more provision, section, subsection, sentence, clause, phrase, or word of
1073 this chapter, or the application of this chapter to any person or circumstance, is found to be
1074 unconstitutional, the same is hereby declared to be severable and the balance of this chapter
1075 shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares
1076 that it would have passed this chapter, and each provision, section, subsection, sentence, clause,
1077 phrase, or word of this chapter, irrespective of the fact that any one or more provision, section,
1078 subsection, sentence, clause, phrase, or word be declared unconstitutional.
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