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8 LONG TITLE
9 General Description:
10 This bill addresses supported decision-making agreements.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms;
14 ▸ prescribes the principles by which provisions related to supported decision-making
15 agreements should be interpreted;
16 ▸ describes the requirements for a supported decision-making agreement;
17 ▸ describes the duties of an individual who is a supporter under a supported
18 decision-making agreement;
19 ▸ provides that a supported decision-making agreement may be revoked or
20 terminated, with certain conditions;
21 ▸ describes how a supported decision-making agreement interacts with and affects
22 other laws and principles; and
23 ▸ provides protections for a person who relies, in good faith, on the provisions of a
24 supported decision-making agreement.
25 Money Appropriated in this Bill:
26 None
27 Other Special Clauses:
28 None
29 Utah Code Sections Affected:
30 ENACTS:
31 62A-5-601, Utah Code Annotated 1953
32 62A-5-602, Utah Code Annotated 1953
33 62A-5-603, Utah Code Annotated 1953
34 62A-5-604, Utah Code Annotated 1953
35 62A-5-605, Utah Code Annotated 1953
36 62A-5-606, Utah Code Annotated 1953
37 62A-5-607, Utah Code Annotated 1953
38 62A-5-608, Utah Code Annotated 1953
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40 Be it enacted by the Legislature of the state of Utah:
41 Section 1. Section 62A-5-601 is enacted to read:
42
43 62A-5-601. Definitions.
44 As used in this part:
45 (1) "Covered entity" means the same as that term is defined in 45 C.F.R. Sec. 160.103.
46 (2) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996,
47 Pub. L. No. 104-191, 110 Stat. 1936, as amended.
48 (3) "Principal" means an individual who:
49 (a) is 18 years old or older;
50 (b) has a disability, as that term is defined in Section 62A-5b-102;
51 (c) is competent to enter into a contract; and
52 (d) seeks to enter or has entered into a supported decision-making agreement with at
53 least one supporter.
54 (4) "Protected health information" means the same as that term is defined in 45 C.F.R.
55 Sec. 160.103.
56 (5) "Supported decision-making" means the process of supporting and accommodating
57 an individual in the decision-making process to make, communicate, and effectuate life
58 decisions, without impeding the self-determination of the individual.
59 (6) "Supported decision-making agreement" means an agreement between a principal
60 and at least one supporter that meets the requirements of Section 62A-5-603.
61 (7) "Supporter" means an individual who:
62 (a) is 18 years old or older; and
63 (b) has agreed to provide specified assistance to a principal by entering into a
64 supported decision-making agreement with the principal.
65 Section 2. Section 62A-5-602 is enacted to read:
66 62A-5-602. Interpretation of chapter.
67 This chapter shall be construed and applied in accordance with the following principles:
68 (1) a principal should be able to:
69 (a) live in the manner in which the principal wishes; and
70 (b) accept or refuse support, assistance, or protection, as long as the principal does not
71 harm others and is capable of making decisions about such matters;
72 (2) a principal should be able to be informed about and, to the best of the principal's
73 abilities, participate in the management of the principal's affairs;
74 (3) a principal should receive the most effective, yet least restrictive and intrusive,
75 form of support, assistance, or protection when the principal is unable to manage the principal's
76 affairs alone; and
77 (4) the values, beliefs, wishes, cultural norms, and traditions that a principal holds
78 should be respected in managing the principal's affairs.
79 Section 3. Section 62A-5-603 is enacted to read:
80 62A-5-603. Supported decision-making agreement.
81 (1) Subject to Subsection (6), a principal may enter into a supported decision-making
82 agreement at any time if the principal:
83 (a) enters into the agreement voluntarily and without coercion or undue influence; and
84 (b) understands the nature and effect of the agreement.
85 (2) A supported decision-making agreement shall:
86 (a) be in writing;
87 (b) state the date on which the agreement is effective;
88 (c) designate at least one supporter;
89 (d) describe:
90 (i) how the principal uses supported decision-making to make decisions;
91 (ii) the rights of the principal;
92 (iii) the responsibilities of each supporter;
93 (iv) the decision-making supports and accommodations the principal chooses to
94 receive from each supporter; and
95 (v) the types of decisions, if any, with which a supporter is not authorized to assist the
96 principal;
97 (e) include the notarized signature of the principal and each supporter, which signature
98 and notarization may be in electronic form; and
99 (f) describe how any perceived or actual conflict of interest between a supporter and
100 the principal will be mitigated.
101 (3) (a) A supported decision-making agreement may include a release or other
102 document by which the principal authorizes a supporter to access the principal's confidential
103 information, subject to the terms of the supported decision-making agreement described in
104 Subsection (2)(d) and the supporter's duties described in Section 62A-5-604.
105 (b) Before a covered entity may share a principal's protected health information with a
106 supporter, the principal shall sign a HIPAA consent form authorizing release of the protected
107 health information to the supporter.
108 (c) Nothing in this part shall be construed to alter or preempt the requirements for
109 protecting health information under HIPAA.
110 (4) Each supporter shall include with the supporter's signature:
111 (a) a description of the supporter's relationship to the principal;
112 (b) a statement of the supporter's willingness to act as a supporter;
113 (c) an acknowledgment of the supporter's duties; and
114 (d) an attestation that the supporter:
115 (i) agrees to honor the right of the principal to make decisions; and
116 (ii) will not make decisions for the principal, including health care decisions.
117 (5) A supported decision-making agreement may do one or more of the following:
118 (a) designate more than one supporter;
119 (b) designate an alternate individual to act in the place of a supporter under
120 circumstances specified in the supported decision-making agreement; or
121 (c) authorize a supporter to share information with another supporter or other
122 individual named in the supported decision-making agreement.
123 (6) (a) A principal may not enter into a supported decision-making agreement if the
124 agreement encroaches on the authority of a guardian or conservator of the principal, unless, in
125 writing, the guardian or conservator approves of the adult entering into the supported
126 decision-making agreement.
127 (b) A guardian or conservator may not, without good cause, prevent a principal from
128 entering into a supported decision-making agreement that does not encroach on the authority of
129 the guardian or conservator.
130 Section 4. Section 62A-5-604 is enacted to read:
131 62A-5-604. Supporter duties.
132 (1) A supporter shall:
133 (a) act with the care, competence, and diligence ordinarily exercised by individuals in
134 similar circumstances, and in accordance with the supporter's skills or expertise;
135 (b) maintain records, which the supporter shall make available to the principal upon
136 request, concerning:
137 (i) the supporter's actions under the supported decision-making agreement; and
138 (ii) how the principal communicates and expresses opinions to the supporter; and
139 (c) ensure that all information collected on behalf of a principal pursuant to a supported
140 decision-making agreement and this section is:
141 (i) kept privileged and confidential, as appropriate;
142 (ii) not subject to unauthorized access, use, or disclosure; and
143 (iii) properly disposed of when appropriate.
144 (2) Except as otherwise provided in the supported decision-making agreement or
145 Subsection (3), a supporter may, as directed by the principal:
146 (a) assist the principal in understanding information, options, responsibilities, and
147 consequences of the principal's life decisions, including decisions relating to the principal's
148 affairs or supportive services;
149 (b) help the principal access, obtain, and understand information that is relevant to a
150 life decision, including medical, psychological, financial, or educational decisions, or any
151 treatment records or records related to the management of the principal's affairs or supportive
152 services;
153 (c) assist the principal with finding, obtaining, and making appointments for supportive
154 services, and implement the principal's plans for supportive services;
155 (d) help the principal monitor information about the principal's affairs or supportive
156 services, including tracking future necessary or recommended services;
157 (e) ascertain the wishes and decisions of the principal, assist in communicating those
158 wishes and decisions to others, and advocate to ensure that the wishes and decisions of the
159 principal are implemented; or
160 (f) assist the principal with obtaining information to which the principal is entitled.
161 (3) A supporter may not:
162 (a) exert undue influence on, or make decisions on behalf of, the principal;
163 (b) without the principal's consent:
164 (i) obtain information that is not reasonably related to matters with which the supporter
165 is authorized to support or assist the principal pursuant to the supported decision-making
166 agreement; or
167 (ii) use information acquired in connection with the supported decision-making
168 agreement for a purpose other than supporting or assisting the principal pursuant to the
169 supported decision-making agreement;
170 (c) sign for the principal or provide an electronic signature of the principal to a third
171 party; or
172 (d) make health care decisions for the principal.
173 Section 5. Section 62A-5-605 is enacted to read:
174 62A-5-605. Revocation -- Withdrawal.
175 (1) A principal may revoke a supported decision-making agreement at any time by
176 providing written notice to all other parties to the agreement.
177 (2) A supporter may withdraw from a supported decision-making agreement at any
178 time by providing written notice to all other parties to the agreement.
179 (3) A written notice of revocation or withdrawal under this section may be provided by
180 electronic means.
181 Section 6. Section 62A-5-606 is enacted to read:
182 62A-5-606. Termination.
183 Unless otherwise provided in the supported decision-making agreement, a supported
184 decision-making agreement is terminated upon the occurrence of any of the following:
185 (1) the death of the principal;
186 (2) a revocation by the principal pursuant to Section 62A-5-605; or
187 (3) a withdrawal by all of the supporters pursuant to Section 62A-5-605 without the
188 designation of a successor supporter.
189 Section 7. Section 62A-5-607 is enacted to read:
190 62A-5-607. Impact of supported decision-making agreement.
191 (1) A decision or request made or communicated by a principal with the assistance of a
192 supporter in accordance with the terms of a supported decision-making agreement and this part
193 shall, for the purposes of any provision of law, be recognized as the decision or request of the
194 principal, and may be enforced on the same basis as a decision or request of the principal.
195 (2) The availability of a supported decision-making agreement does not limit the
196 informal use of supported decision making, or preclude judicial consideration of informal
197 supported decision-making arrangements as a less restrictive alternative to a guardianship or
198 conservatorship.
199 (3) Execution of a supported decision-making agreement may not be a condition of
200 participating in any activity, service, or program.
201 (4) A court may not consider a principal's execution of a supported decision-making
202 agreement as evidence of the principal's incapacity.
203 (5) The existence of a supported decision-making agreement does not preclude the
204 principal from acting independently of the supported decision-making agreement.
205 Section 8. Section 62A-5-608 is enacted to read:
206 62A-5-608. Liability.
207 (1) As used in this section, "good faith" means honesty in fact in the conduct or
208 transaction concerned.
209 (2) A person who is not a party to a supported decision-making agreement, including a
210 provider of health care or financial services, that in good faith accepts or relies upon a
211 supported decision-making agreement:
212 (a) may presume that the signatures on the supported decision-making agreement are
213 genuine, unless the person has actual knowledge that any signature on the supported
214 decision-making agreement is not genuine;
215 (b) may presume that a supported decision-making agreement is valid and that a
216 purported supporter's authority is valid, unless the person has actual knowledge that the
217 supported decision-making agreement or the purported supporter's authority has been revoked,
218 terminated, or is otherwise void or invalid; and
219 (c) is not subject to civil or criminal liability, or discipline for unprofessional conduct,
220 for giving effect to a provision contained in a supported decision-making agreement, or for
221 following the direction of a supporter given in accordance with the supported decision-making
222 agreement.
223 (3) The provisions of this part may not be construed to affect mandatory reporting
224 obligations related to abuse, neglect, or exploitation.