H. B. 2902
(By Delegates Staggers, Brown, Shook,
Moye, Rodighiero, Pino, Hutchins, Klempa,
Burdiss and Perry)
[Introduced January 9, 2008; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact §16-30-4 of the Code of West Virginia,
1931, as amended, relating to allowing a female woman of
child-bearing age to include in an advance directive executed
by her, information as to what effect the advance directive
shall have if she is pregnant.
Be it enacted by the Legislature of West Virginia:
That §16-30-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-4. Executing a living will or medical power of attorney.
(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
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 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 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
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.
_______________________________ _________________________
WitnessDATE
________________________________________________________
WitnessDATE
_______________________________
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 female declarant may include in an advance directive
executed by her, information as to what effect the advance
directive shall have if she is pregnant.
(h) (i) 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 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 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, 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
NOTE: The purpose of this bill is to allow a woman of child
bearing age to complete an advance directive as provided, and to
allow her to specify a special directive in the event that she is
left in a terminal condition while pregnant, or is in a
persistently vegetative state while pregnant.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.