Senate Bill No. 747
(By Senators Chafin and Unger)
____________
[Introduced March 23, 2009; referred to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact §16-30-3, §16-30-4 and §16-30-5 of the
Code of West Virginia, 1931, as amended, all relating to
medical powers of attorney; and limitations on actions.
Be it enacted by the Legislature of West Virginia:
That §16-30-3, §16-30-4 and §16-30-5 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-3. Definitions.
For the purposes of this article:
(a) "Actual knowledge" means the possession of information of
the person's wishes communicated to the health care provider orally
or in writing by the person, the person's medical power of attorney
representative, the person's health care surrogate or other
individuals resulting in the health care provider's personal cognizance of these wishes. Constructive notice and other forms of
imputed knowledge are not actual knowledge.
(b) "Adult" means a person who is eighteen years of age or
older, an emancipated minor who has been established as such
pursuant to the provisions of section twenty-seven, article seven,
chapter forty-nine of this code or a mature minor.
(c) "Advanced nurse practitioner" means a registered nurse
with substantial theoretical knowledge in a specialized area of
nursing practice and proficient clinical utilization of the
knowledge in implementing the nursing process, and who has met the
further requirements of Title 19, Legislative Rules for West
Virginia Board of Examiners for Registered Professional Nurses,
series 7 , who has a mutually agreed upon association in writing
with a physician and has been selected by or assigned to the person
and has primary responsibility for treatment and care of the
person.
(d) "Attending physician" means the physician selected by or
assigned to the person who has primary responsibility for treatment
and care of the person and who is a licensed physician. If more
than one physician shares that responsibility, any of those
physicians may act as the attending physician under this article.
(e) "Capable adult" means an adult who is physically and
mentally capable of making health care decisions and who is not
considered a protected person pursuant to the provisions of chapter forty-four-a of this code.
(f) "Close friend" means any adult who has exhibited
significant care and concern for an incapacitated person who is
willing and able to become involved in the incapacitated person's
health care and who has maintained regular contact with the
incapacitated person so as to be familiar with his or her
activities, health and religious and moral beliefs.
(g) "Death" means a finding made in accordance with accepted
medical standards of either: (1) The irreversible cessation of
circulatory and respiratory functions; or (2) the irreversible
cessation of all functions of the entire brain, including the brain
stem.
(h) "Guardian" means a person appointed by a court pursuant to
the provisions of chapter forty-four-a of this code who is
responsible for the personal affairs of a protected person and
includes a limited guardian or a temporary guardian.
(i) "Health care decision" means a decision to give, withhold
or withdraw informed consent to any type of health care, including,
but not limited to, medical and surgical treatments, including
life-prolonging interventions, psychiatric treatment, nursing care,
hospitalization, treatment in a nursing home or other facility,
home health care and organ or tissue donation.
(j) "Health care facility" means a facility commonly known by
a wide variety of titles, including, but not limited to, hospital, psychiatric hospital, medical center, ambulatory health care
facility, physicians' office and clinic, extended care facility
operated in connection with a hospital, nursing home, a hospital
extended care facility operated in connection with a rehabilitation
center, hospice, home health care and other facility established to
administer health care in its ordinary course of business or
practice.
(k) "Health care provider" means any licensed physician,
dentist, nurse, physician's assistant, paramedic, psychologist or
other person providing medical, dental, nursing, psychological or
other health care services of any kind.
(l) "Incapacity" means the inability because of physical or
mental impairment to appreciate the nature and implications of a
health care decision, to make an informed choice regarding the
alternatives presented and to communicate that choice in an
unambiguous manner.
(m) "Life-prolonging intervention" means any medical procedure
or intervention that, when applied to a person, would serve to
artificially prolong the dying process or to maintain the person in
a persistent vegetative state. Life-prolonging intervention
includes, among other things, nutrition and hydration administered
intravenously or through a feeding tube. The term "life-prolonging
intervention" does not include the administration of medication or
the performance of any other medical procedure considered necessary to provide comfort or to alleviate pain.
(n) "Living will" means a written, witnessed advance directive
governing the withholding or withdrawing of life-prolonging
intervention, voluntarily executed by a person in accordance with
the requirements of section four of this article.
(o) "Mature minor" means a person less than eighteen years of
age who has been determined by a qualified physician, a qualified
psychologist or an advanced nurse practitioner to have the capacity
to make health care decisions.
(p) "Medical information" or "medical records" means and
includes without restriction any information recorded in any form
of medium that is created or received by a health care provider,
health care facility, health plan, public health authority,
employer, life insurer, school or university or health care
clearinghouse that relates to the past, present or future physical
or mental health of the person, the provision of health care to the
person, or the past, present or future payment for the provision of
health care to the person.
(q) "Medical power of attorney representative" or
"representative" means a person eighteen years of age or older
appointed by another person to make health care decisions pursuant
to the provisions of section six of this article or similar act of
another state and recognized as valid under the laws of this state.
(r) "Next of kin" means spouse, parent, adult child, sibling, uncle or aunt, grandchildren and grandparent.
(r) (s) "Parent" means a person who is another person's
natural or adoptive mother or father or who has been granted
parental rights by valid court order and whose parental rights have
not been terminated by a court of law.
(s) (t) "Persistent vegetative state" means an irreversible
state as diagnosed by the attending physician or a qualified
physician in which the person has intact brain stem function but no
higher cortical function and has neither self-awareness or
awareness of the surroundings in a learned manner.
(t) (u) "Person" means an individual, a corporation, a
business trust, a trust, a partnership, an association, a
government, a governmental subdivision or agency or any other legal
entity.
(u) (v) "Physician orders for scope of treatment (POST) form"
means a standardized form containing orders by a qualified
physician that details a person's life-sustaining wishes as
provided by section twenty-five of this article.
(v) (w) "Principal" means a person who has executed a living
will or medical power of attorney.
(w) (x) "Protected person" means an adult who, pursuant to the
provisions of chapter forty-four-a of this code, has been found by
a court, because of mental impairment, to be unable to receive and
evaluate information effectively or to respond to people, events and environments to an extent that the individual lacks the
capacity to: (1) Meet the essential requirements for his or her
health, care, safety, habilitation or therapeutic needs without the
assistance or protection of a guardian; or (2) manage property or
financial affairs to provide for his or her support or for the
support of legal dependents without the assistance or protection of
a conservator.
(x) (y) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.
(y) (z) "Qualified psychologist" means a psychologist licensed
to practice psychology who has personally examined the person.
(z) (aa) "Surrogate decisionmaker" or "surrogate" means an
individual eighteen years of age or older who is reasonably
available, is willing to make health care decisions on behalf of an
incapacitated person, possesses the capacity to make health care
decisions and is identified or selected by the attending physician
or advanced nurse practitioner in accordance with the provisions of
this article as the person who is to make those decisions in
accordance with the provisions of this article.
(aa) (bb) "Terminal condition" means an incurable or
irreversible condition as diagnosed by the attending physician or
a qualified physician for which the administration of
life-prolonging intervention will serve only to prolong the dying
process.
§16-30-4. Executing a living will or medical power of attorney or
combined medical power of attorney and living will.
(a) Any competent adult may execute at any time a living will
or medical power of attorney. A living will or medical power of
attorney made pursuant to this article shall be: (1) In writing;
(2) executed by the principal or by another person in the
principal's presence at the principal's express direction if the
principal is physically unable to do so; (3) dated; (4) signed in
the presence of two or more witnesses at least eighteen years of
age; and (5) signed and attested by such witnesses whose signatures
and attestations shall be acknowledged before a notary public as
provided in subsection (d) of this section.
(b) In addition, a witness may not be:
(1) The person who signed the living will or medical power of
attorney on behalf of and at the direction of the principal;
(2) Related to the principal by blood or marriage;
(3) Entitled to any portion of the estate of the principal
under any will of the principal or codicil thereto:
Provided, That
the validity of the living will or medical power of attorney
shall
may not be affected when a witness at the time of witnessing such
living will or medical power of attorney was unaware of being a
named beneficiary of the principal's will;
(4) Directly financially responsible for principal's medical
care;
(5) The attending physician; or
(6) The principal's medical power of attorney representative
or successor medical power of attorney representative.
(c) The following persons may not serve as a medical power of
attorney representative or successor medical power of attorney
representative: (1) A treating health care provider of the
principal; (2) an employee of a treating health care provider not
related to the principal; (3) an operator of a health care facility
serving the principal; or (4) any person who is an employee of an
operator of a health care facility serving the principal and who is
not related to the principal.
(d) It
shall be is the responsibility of the principal or his
or her representative to provide
for notification to his or her
attending physician and other health care providers of the
existence of the living will or medical power of attorney or a
revocation of the living will or medical power of attorney. An
attending physician or other health care provider, when presented
with the living will or medical power of attorney, or the
revocation of a living will or medical power of attorney, shall
make the living will, medical power of attorney or a copy of either
or a revocation of either a part of the principal's medical
records.
(e) At the time of admission to any health care facility, each
person shall be advised of the existence and availability of living will and medical power of attorney forms and shall be given
assistance in completing
such these forms if the person desires:
Provided, That under no circumstances may admission to a health
care facility be predicated upon a person having completed either
a medical power of attorney or living will.
(f) The provision of living will or medical power of attorney
forms substantially in compliance with this article by health care
providers, medical practitioners, social workers, social service
agencies, senior citizens centers, hospitals, nursing homes,
personal care homes, community care facilities or any other similar
person or group, without separate compensation, does not constitute
the unauthorized practice of law.
(g) The living will may, but need not, be in the following
form and may include other specific directions not inconsistent
with other provisions of this article. Should any of the other
specific directions be held to be invalid, such invalidity
shall
does not affect other directions of the living will which can be
given effect without the invalid direction and to this end the
directions in the living will are severable.
STATE OF WEST VIRGINIA
LIVING WILL
Living will made this _____________________________________day
of _______________(month, year).
I,___________________________________________________, being
of sound mind, willfully and voluntarily declare that I want my
wishes to be respected if I am very sick and not able to
communicate my wishes for myself. In the absence of my ability to
give directions regarding the use of life-prolonging medical
intervention, it is my desire that my dying shall not be prolonged
under the following circumstances:
If I am very sick and not able to communicate my wishes for
myself and I am certified by one physician, who has personally
examined me, to have a terminal condition or to be in a persistent
vegetative state (I am unconscious and am neither aware of my
environment nor able to interact with others), I direct that
life-prolonging medical intervention that would serve solely to
prolong the dying process or maintain me in a persistent vegetative
state be withheld or withdrawn. I want to be allowed to die
naturally and only be given medications or other medical procedures
necessary to keep me comfortable. I want to receive as much
medication as is necessary to alleviate my pain.
I give the following SPECIAL DIRECTIVES OR LIMITATIONS:
(Comments about tube feedings, breathing machines, cardiopulmonary
resuscitation, dialysis and mental health treatment may be placed
here. My failure to provide special directives or limitations does not mean that I want or refuse certain treatments.)
______________________________________________________________
______________________________________________________________
_________________________________________________________________
It is my intention that this living will be honored as the
final expression of my legal right to refuse medical or surgical
treatment and accept the consequences resulting from such refusal.
I understand the full import of this living will.
_________________________________________________________________
Signed
_________________________________________________________________
_________________________________________________________________
Address
I did not sign the principal's signature above for or at the
direction of the principal. I am at least eighteen years of age
and am not related to the principal by blood or marriage, entitled
to any portion of the estate of the principal to the best of my
knowledge under any will of principal or codicil thereto, or
directly financially responsible for principal's medical care. I
am not the principal's attending physician or the principal's
medical power of attorney representative or successor medical power
of attorney representative under a medical power of attorney.
_______________________________ _________________________
Witness
DATE
________________________________________________________
Witness
DATE
_______________________________
STATE OF
_______________________________
COUNTY OF
I, _________________________, a Notary Public of said County,
do certify that ________________________________________, as
principal, and________________________ and ____________________, as
witnesses, whose names are signed to the writing above bearing date
on the _______________ day of _______, 20____,have this day
acknowledged the same before me.
Given under my hand this ______ day of ______, 20__.
My commission expires:______________________________________
_________________________________________________________________
Notary Public
(h) A medical power of attorney must contain a provision
stating whether the principal authorizes the medical power of
attorney representative or surrogate to provide any requesting
party accurate, comprehensive and timely information regarding the
principal's treatment and condition, and inform any such requesting
party of all actions that the medical power of attorney
representative or surrogate has taken on the principal's behalf.
If the principal makes such an authorization, the principal may
specify in the medical power of attorney what person or persons may
be given this information. If the principal has authorized that
requesting parties may be given the information described in this
subsection but has not specified who those parties are, then they are considered to be any and all next of kin.
(i) A medical power of attorney must contain a certification
that the principal has been told in the Notary Public's presence
that if the principal is very sick and not able to communicate his
or her wishes and he or she is certified by one physician, who has
personally examined the principal, to have a terminal condition or
to be in a persistent vegetative state as defined in this article,
then the medical power of attorney representative or surrogate,
unless otherwise specified by the principal in the medical power of
attorney or some other known expression of the principal's wishes
or beliefs, will have the power to: (1)Direct that life-prolonging
medical intervention that would serve solely to prolong the dying
process or maintain the principal in a persistent vegetative state
be withheld or withdrawn; and (2) make any and all decisions for
the principal regarding tube feedings, breathing machines,
cardiopulmonary resuscitation, dialysis and mental health
treatment.
(h) (j) A medical power of attorney may, but need not, be in
the following form, and may include other specific directions not
inconsistent with other provisions of this article. Should any of
the other specific directions be held to be invalid, such
invalidity shall does not affect other directions of the medical
power of attorney which can be given effect without invalid
direction and to this end the directions in the medical power of attorney are severable.
STATE OF WEST VIRGINIA
MEDICAL POWER OF ATTORNEY
Dated: _____________________________ , 20______
I,____________________________________________________, hereby
(Insert your name and address)
appoint as my representative to act on my behalf to give, withhold
or withdraw informed consent to health care decisions in the event
that I am not able to do so myself.
The person I choose as my representative is:
________________________________________________________________
(Insert the name, address, area code and telephone number of
the person you wish to designate as your representative)
The person I choose as my successor representative is:
If my representative is unable, unwilling or disqualified to
serve, then I appoint:
_________________________________________________________________
(Insert the name, address, area code and telephone number of
the person you wish to designate as your successor representative)
This appointment shall extend to, but not be limited to,
health care decisions relating to medical treatment, surgical
treatment, nursing care, medication, hospitalization, care and
treatment in a nursing home or other facility, and home health care. The representative appointed by this document is
specifically authorized to be granted access to my medical records
and other health information and to act on my behalf to consent to,
refuse or withdraw any and all medical treatment or diagnostic
procedures, or autopsy if my representative determines that I, if
able to do so, would consent to, refuse or withdraw such treatment
or procedures.
Such This authority shall include, but not be
limited to, decisions regarding the withholding or withdrawal of
life-prolonging interventions.
I do/do not authorize the medical power of attorney
representative or surrogate to provide to
, or ? my next of kin, upon request, accurate,
comprehensive and timely information regarding my treatment and
condition, and inform any such requesting party of all actions that
the medical power of attorney representative or surrogate has taken
on my behalf.
I appoint this representative because I believe this person
understands my wishes and values and will act to carry into effect
the health care decisions that I would make if I were able to do so
and because I also believe that this person will act in my best
interest when my wishes are unknown. It is my intent that my
family, my physician and all legal authorities be bound by the
decisions that are made by the representative appointed by this
document and it is my intent that these decisions should not be the subject of review by any health care provider or administrative or
judicial agency.
It is my intent that this document be legally binding and
effective and that this document be taken as a formal statement of
my desire concerning the method by which any health care decisions
should be made on my behalf during any period when I am unable to
make such decisions.
In exercising the authority under this medical power of
attorney, my representative shall act consistently with my special
directives or limitations as stated below.
I am giving the following SPECIAL DIRECTIVES OR LIMITATIONS ON
THIS POWER: (Comments about tube feedings, breathing machines,
cardiopulmonary resuscitation, dialysis, funeral arrangements,
autopsy and organ donation may be placed here. My failure to
provide special directives or limitations does not mean that I want
or refuse certain treatments.)
_________________________________________________________________
__________________________________________________________________
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY
UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT
TO MY OWN MEDICAL CARE.
_______________________________
Signature of the Principal
I did not sign the principal's signature above. I am at least eighteen years of age and am not related to the principal by blood
or marriage. I am not entitled to any portion of the estate of the
principal or to the best of my knowledge under any will of the
principal or codicil thereto, or legally responsible for the costs
of the principal's medical or other care. I am not the principal's
attending physician, nor am I the representative or successor
representative of the principal.
________________________________________________________
Witness: DATE
________________________________________________________
Witness: DATE
_______________________________
STATE OF
_______________________________
COUNTY OF
I, ________________________________, a Notary Public of said
County, do certify that_________________________________________,
as principal, and ____________________ and __________________, as
witnesses, whose names are signed to the writing above bearing date
on the ____________ day of _____________, 20_____, have this day
acknowledged the same before me.
Given under my hand this __________ day of _____________,
20____.
My commission expires:______________________________________
_________________________________________________________________
Notary Public
(i) (k) A combined medical power of attorney and living will may, but need not, be in the following form, and may include other
specific directions not inconsistent with other provisions of this
article. Should any of the other specific directions be held to be
invalid, such invalidity does not affect other directions of the
combined medical power of attorney and living will which can be
given effect without invalid direction and to this end the
directions in the combined medical power of attorney and living
will are severable.
STATE OF WEST VIRGINIA
COMBINED MEDICAL POWER OF ATTORNEY
AND LIVING WILL
Dated: ______________________________, 20______
I, ______________________________________________________,
hereby (Insert your name and address) appoint as my representative
to act on my behalf to give, withhold or withdraw informed consent
to health care decisions in the event that I am not able to do so
myself.
The person I choose as my representative is:
______________________________________________________________
(Insert the name, address, area code and telephone number of the
person you wish to designate as your representative).
If my representative is unable, unwilling or disqualified to
serve, then I appoint as my successor representative:
______________________________________________________________
(Insert the name, address, area code and telephone number of the
person you wish to designate as your successor representative).
This appointment shall extend to, but not be limited to,
health care decisions relating to medical treatment, surgical
treatment, nursing care, medication, hospitalization, care and
treatment in a nursing home or other facility, and home health
care. The representative appointed by this document is
specifically authorized to be granted access to my medical records
and other health information and to act on my behalf to consent to,
refuse or withdraw any and all medical treatment or diagnostic
procedures, or autopsy if my representative determines that I, if
able to do so, would consent to, refuse or withdraw such treatment
or procedures. Such authority shall include, but not be limited
to, decisions regarding the withholding or withdrawal of
life-prolonging interventions.
I appoint this representative because I believe this person
understands my wishes and values and will act to carry into effect
the health care decisions that I would make if I were able to do
so, and because I also believe that this person will act in my best
interest when my wishes are unknown. It is my intent that my
family, my physician and all legal authorities be bound by the decisions that are made by the representative appointed by this
document, and it is my intent that these decisions should not be
the subject of review by any health care provider or administrative
or judicial agency.
It is my intent that this document be legally binding and
effective and that this document be taken as a formal statement of
my desire concerning the method by which any health care decisions
should be made on my behalf during any period when I am unable to
make such decisions.
In exercising the authority under this medical power of
attorney, my representative shall act consistently with my special
directives or limitations as stated below.
I am giving the following SPECIAL DIRECTIVES OR LIMITATIONS ON
THIS POWER: (Comments about tube feedings, breathing machines,
cardiopulmonary resuscitation, dialysis, mental health treatment,
funeral arrangements, autopsy, and organ donation may be placed
here. My failure to provide special directives or limitations does
not mean that I want or refuse certain treatments).
1. If I am very sick and not able to communicate my wishes
for myself and I am certified by one physician who has personally
examined me, to have a terminal condition or to be in a persistent
vegetative state (I am unconscious and am neither aware of my
environment nor able to interact with others,) I direct that
life-prolonging medical intervention that would serve solely to prolong the dying process or maintain me in a persistent vegetative
state be withheld or withdrawn. I want to be allowed to die
naturally and only be given medications or other medical procedures
necessary to keep me comfortable. I want to receive as much
medication as is necessary to alleviate my pain.
2. Other directives:_____________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY
UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT
TO MY OWN MEDICAL CARE.
_____________________________
Signature of the Principal
I did not sign the principal's signature above. I am at least
eighteen years of age and am not related to the principal by blood
or marriage. I am not entitled to any portion of the estate of the
principal or to the best of my knowledge under any will of the
principal or codicil thereto, or legally responsible for the costs
of the principal's medical or other care. I am not the principal's
attending physician, nor am I the representative or successor
representative of the principal.
Witness _____________________ DATE ___________
Witness _____________________ DATE ___________
STATE OF _________________________
COUNTY OF _________________________________
I, ______________________, a Notary Public of said county, do
certify that_____________________, as principal, and
____________________ and ____________________, as witnesses, whose
names are signed to the writing above bearing date on the _____ day
of ______________, 20___, have this day acknowledged the same
before me.
Given under my hand this _____ day of _________________,
20___.
My commission expires:_______________________________
________________________________
Signature of Notary Public
§16-30-5. Applicability and resolving actual conflict between
advance directives.
(a) The provisions of this article which directly conflict
with the written directives contained in a living will or medical
power of attorney executed prior to the effective date of this
statute shall do not apply. An expressed directive contained in a
living will or medical power of attorney or by any other means the
health care provider determines to be reliable shall be followed.
(b) If there is a conflict between the person's expressed
directives, the physician orders for scope of treatment form and
the decisions of the medical power of attorney representative or
surrogate, the person's expressed directives shall be followed.
(c) In the event there is a conflict between two advance
directives executed by the person, the one most recently completed
takes precedence only to the extent needed to resolve the
inconsistency.
(d) If there is a conflict between the decisions of the
medical power of attorney representative or surrogate and the
person's best interests as determined by the attending physician
when the person's wishes are unknown, the attending physician shall
attempt to resolve the conflict by consultation with a qualified
physician, an ethics committee or by some other means. If the
attending physician cannot resolve the conflict with the medical
power of attorney representative, the attending physician may
transfer the care of the person pursuant to subsection (b), section
twelve of this article.
(e) Any one of the principal's next-of-kin in the following
order of preference may request any treating physician to evaluate
whether there is a conflict between the decisions of the medical
power of attorney representative or surrogate and the person's best
interests as determined by the attending physician when the
person's wishes are unknown: Spouse, parent, adult child, sibling,
uncle or aunt, grandchildren and grandparent. If, upon such a
request, the treating physician determines that such a conflict
exists, he or she shall attempt to resolve the matter in the manner
provided for in paragraph (d).
NOTE: The purpose of this bill is to prevent abuse and/or
disregard of the provisions of medical power of attorney documents
and to further ensure that people signing medical powers of
attorney are fully informed of the powers that their representative
will have.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.