Print Friendly SENATE BILL NO. 1249 – Living wills/durable power of atty
SENATE BILL NO. 1249
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S1249................................................by JUDICIARY AND RULES
LIVING WILLS - DURABLE POWER OF ATTORNEY - Amends existing law relating to
provisions of a living will and a durable power of attorney; to establish
the effect of certain living wills and durable powers of attorney for
health care; to govern application under the Health Insurance Portability
and Accountability Act of 1996; to recognize applicability of a directive
to lifesaving procedures; and to govern application of immunity provisions
to all health care providers.
01/29 Senate intro - 1st rdg - to printing
01/30 Rpt prt - to Jud
02/12 Rpt out - rec d/p - to 2nd rdg
02/13 2nd rdg - to 3rd rdg
02/19 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Calabretta, Cameron, Compton, Davis, Gannon, Geddes, Goedde, Hill,
Ingram, Keough, Little, Lodge, Malepeai, Marley, McKenzie,
McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Darrington, Kennedy
Floor Sponsor - Bunderson
Title apvd - to House
02/20 House intro - 1st rdg - to Jud
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/08 3rd rdg - PASSED - 68-2-0
AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest,
Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez,
McGeachin, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen,
Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison,
Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen,
Smith(30), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr.
NAYS -- McKague, Smith(24)
Absent and excused -- None
Floor Sponsors - Pasley-Stuart & Ring
Title apvd - to Senate
03/09 To enrol
03/10 Rpt enrol - Pres signed
03/11 Sp signed
03/12 To Governor
03/16 Governor signed
Session Law Chapter 56
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE SENATE
SENATE BILL NO. 1249
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO PROVISIONS OF A LIVING WILL AND A DURABLE POWER OF ATTORNEY;
3 AMENDING SECTION 39-4504, IDAHO CODE, TO ESTABLISH THE EFFECT OF CERTAIN
4 LIVING WILLS; AMENDING SECTION 39-4505, IDAHO CODE, TO ESTABLISH THE
5 EFFECT OF A DURABLE POWER OF ATTORNEY FOR HEALTH CARE, TO GOVERN APPLICA-
6 TION UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996
7 AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-4507, IDAHO CODE,
8 TO REMOVE A CONDITION GOVERNING THE EFFECT OF A DIRECTIVE; AMENDING SEC-
9 TION 56-1020, IDAHO CODE, TO RECOGNIZE APPLICABILITY OF A DIRECTIVE TO
10 LIFESAVING PROCEDURES; AMENDING SECTION 56-1021, IDAHO CODE, TO FURTHER
11 DEFINE TERMS; AMENDING SECTION 56-1026, IDAHO CODE, TO PROVIDE APPLICATION
12 TO ALL HEALTH CARE PROVIDERS; AMENDING SECTION 56-1027, IDAHO CODE, TO
13 PROVIDE APPLICATION TO ALL HEALTH CARE PROVIDERS; AND AMENDING SECTION
14 56-1029, IDAHO CODE, TO GOVERN APPLICATION OF IMMUNITY PROVISIONS TO ALL
15 HEALTH CARE PROVIDERS.
16 Be It Enacted by the Legislature of the State of Idaho:
17 SECTION 1. That Section 39-4504, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 39-4504. LIVING WILL. Any competent person may execute a document known
20 as a "living will." Such document shall be in the following form or in another
21 form that contains the elements set forth in this section. A "living will"
22 executed prior to the effective date of an amendment of this section, but
23 which was in the "living will" form in effect under this section at the time
24 of execution, or in another form that contained the elements set forth in this
25 section at the time of execution, shall be deemed to be in compliance with
26 this section. A "living will" or similar document executed in another state
27 which substantially complies with this section shall be deemed to be in com-
28 pliance with this section.
29 A LIVING WILL
30 A Directive to Withhold or to Provide Treatment
31 To my family, my relatives, my friends, my physicians, my employers, and
32 all others whom it may concern:
33 Directive made this .... day of ............. .... I, ................
34 (name), being of sound mind, willfully, and voluntarily make known my desire
35 that my life shall not be prolonged artificially under the circumstances set
36 forth below, do hereby declare:
37 1. If at any time I should have an incurable injury, disease, illness or
38 condition certified to be terminal by two (2) medical doctors who have exam-
39 ined me, and where the application of life-sustaining procedures of any kind
1 would serve only to prolong artificially my life, and where a medical doctor
2 determines that my death is imminent, whether or not life-sustaining proce-
3 dures are utilized, or I have been diagnosed as being in a persistent vegeta-
4 tive state, I direct that the following marked expression of my intent be fol-
5 lowed and that I be permitted to die naturally, and that I receive any medical
6 treatment or care that may be required to keep me free of pain or distress.
7 "Check One Box"
8 If at any time I should become unable to communicate my instructions,
9 then I direct that all medical treatment, care, and nutrition and hydration
10 necessary to restore my health, sustain my life, and to abolish or alleviate
11 pain or distress be provided to me. Nutrition and hydration shall not be with-
12 held or withdrawn from me if I would die from malnutrition or dehydration
13 rather than from my injury, disease, illness or condition.
14 If at any time I should become unable to communicate my instructions
15 and where the application of artificial life-sustaining procedures shall serve
16 only to prolong artificially my life, I direct such procedures be withheld or
17 withdrawn except for the administration of nutrition and hydration as follows
18 (if none of the following boxes are checked, then both nutrition and hydration
19 shall be administered):
20 Only hydration shall be administered;
21 Only nutrition shall be administered;
22 Both nutrition and hydration shall be administered.
23 If at any time I should become unable to communicate my instructions
24 and where the application of artificial life-sustaining procedures shall serve
25 only to prolong artificially my life, I direct such procedures be withheld or
26 withdrawn including withdrawal of the administration of nutrition and
28 2. In the absence of my ability to give directions regarding the use of
29 life-sustaining procedures, I hereby appoint ................ (name) currently
30 residing at ................, as my attorney-in-fact/proxy for the making of
31 decisions relating to my health care in my place; and it is my intention that
32 this appointment shall be honored by him/her, by my family, relatives,
33 friends, physicians and lawyer as the final expression of my legal right to
34 refuse medical or surgical treatment; and I accept the consequences of such a
35 decision. I have duly executed a Durable Power of Attorney for health care
36 decisions on this date.
37 3. In the absence of my ability to give further directions regarding my
38 treatment, including life-sustaining procedures, it is my intention that this
39 directive shall be honored by my family and physicians as the final expression
40 of my legal right to refuse or accept medical and surgical treatment, and I
41 accept the consequences of such refusal.
42 43. If I have been diagnosed as pregnant, and that diagnosis is known to
43 any interested person, this directive shall have no force during the course of
44 my pregnancy.
45 54. I understand the full importance of this directive and am emotionally
46 and mentally competent to make this directive. No participant in the making of
47 this directive or in its being carried into effect, whether it be a medical
48 doctor, my spouse, a relative, friend or any other person shall be held
49 responsible in any way, legally, professionally or socially, for complying
50 with my directions.
51 Signed ...................................................................
52 City, county and state of residence ......................................
1 The declarant has been known to me personally and I believe him/her to be
2 of sound mind.
3 Witness ........................ Witness....................................
4 Address ........................ Address....................................
5 SECTION 2. That Section 39-4505, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 39-4505. DURABLE POWER OF ATTORNEY FOR HEALTH CARE. In order to implement
8 the general desires of a person as expressed in the "living will," aA compe-
9 tent person may appoint any adult person to exercise a durable power of attor-
10 ney for health care. The power shall be effective only when the competent per-
11 son is unable to communicate rationally. The person granted the durable power
12 of attorney for health care may make health decisions for the person to the
13 same extent that the principal could make such decisions given the capacity to
14 do so.
15 The durable power of attorney for health care may list alternative holders
16 of the power in the event that the first person named is unable or unwilling
17 to exercise the power.
18 A durable power of attorney for health care may be in the following form,
19 or in any other form which contains the elements set forth in the following
20 form, including a form executed pursuant to the laws of another state.
21 A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
22 1. DESIGNATION OF HEALTH CARE AGENT.
23 I, ...........................................................................
24 (Insert your name and address)
25 do hereby designate and appoint ..............................................
26 (Insert name, address, and telephone number of one individual only as your
27 agent to make health care decisions for you. None of the following may be des-
28 ignated as your agent: (1) your treating health care provider, (2) a
29 nonrelative employee of your treating health care provider, (3) an operator of
30 a community care facility, or (4) a nonrelative employee of an operator of a
31 community care facility).
32 as my attorney in fact (agent) to make health care decisions for me as autho-
33 rized in this document. For the purposes of this document, "health care deci-
34 sion" means consent, refusal of consent, or withdrawal of consent to any care,
35 treatment, service, or procedure to maintain, diagnose, or treat an
36 individual's physical condition.
37 2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this docu-
38 ment I intend to create a durable power of attorney for health care. This
39 power of attorney shall not be affected by my subsequent incapacity.
40 3. GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in
41 this document, I hereby grant to my agent full power and authority to make
42 health care decisions for me to the same extent that I could make such deci-
43 sions for myself if I had the capacity to do so. In exercising this authority,
44 my agent shall make health care decisions that are consistent with my desires
45 as stated in this document or otherwise made known to my agent, including, but
46 not limited to, my desires concerning obtaining or refusing or withdrawing
47 life-prolonging care, treatment, services, and procedures, including such
48 desires set forth in a living will or similar document executed by me, if any.
49 (If you want to limit the authority of your agent to make health care deci-
1 sions for you, you can state the limitations in paragraph 4 ("Statement of
2 Desires, Special Provisions, and Limitations") below. You can indicate your
3 desires by including a statement of your desires in the same paragraph.)
4 4. STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent
5 must make health care decisions that are consistent with your known desires.
6 You can, but are not required to, state your desires in the space provided
7 below. You should consider whether you want to include a statement of your
8 desires concerning life-prolonging care, treatment, services, and procedures.
9 You can also include a statement of your desires concerning other matters
10 relating to your health care. You can also make your desires known to your
11 agent by discussing your desires with your agent or by some other means. If
12 there are any types of treatment that you do not want to be used, you should
13 state them in the space below. If you want to limit in any other way the
14 authority given your agent by this document, you should state the limits in
15 the space below. If you do not state any limits, your agent will have broad
16 powers to make health care decisions for you, except to the extent that there
17 are limits provided by law.)
18 In exercising the authority under this durable power of attorney for
19 health care, my agent shall act consistently with my desires as stated below
20 and is subject to the special provisions and limitations stated in the a liv-
21 ing will or similar document executed by me, if any. Additional statement of
22 desires, special provisions, and limitations:
24 (You may attach additional pages if you need more space to complete your
25 statement. If you attach additional pages, you must date and sign each of the
26 additional pages at the same time you date and sign this document.)
27 5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR
28 MENTAL HEALTH. A. General Grant of Power and Authority. Subject to any limi-
29 tations in this document, my agent has the power and authority to do all of
30 the following:
31 (a) Request, review, and receive any information, verbal or written,
32 regarding my physical or mental health, including, but not limited to,
33 medical and hospital records.
34 (b) Execute on my behalf any releases or other documents that may be
35 required in order to obtain this information.
36 (c) Consent to the disclosure of this information.
37 (d) Consent to the donation of any of my organs for medical purposes.
38 (If you want to limit the authority of your agent to receive and disclose
39 information relating to your health, you must state the limitations in para-
40 graph 4 ("Statement of Desires, Special Provisions, and Limitations") above.)
41 B. HIPAA Release Authority. My agent shall be treated as I would be with
42 respect to my rights regarding the use and disclosure of my individually iden-
43 tifiable health information or other medical records. This release authority
44 applies to any information governed by the Health Insurance Portability and
45 Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through
46 164. I authorize any physician, health care professional, dentist, health
47 plan, hospital, clinic, laboratory, pharmacy, or other covered health care
48 provider, any insurance company, and the Medical Information Bureau, Inc. or
49 other health care clearinghouse that has provided treatment or services to me,
50 or that has paid for or is seeking payment from me for such services, to give,
51 disclose, and release to my agent, without restriction, all of my individually
52 identifiable health information and medical records regarding any past, pres-
1 ent, or future medical or mental health condition, including all information
2 relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
3 illness, and drug or alcohol abuse. The authority given my agent shall super-
4 sede any other agreement that I may have made with my health care providers to
5 restrict access to or disclosure of my individually identifiable health infor-
6 mation. The authority given my agent has no expiration date and shall expire
7 only in the event that I revoke the authority in writing and deliver it to my
8 health care provider.
9 6. SIGNING DOCUMENTS, WAIVERS, AND RELEASES. Where necessary to implement
10 the health care decisions that my agent is authorized by this document to
11 make, my agent has the power and authority to execute on my behalf all of the
13 (a) Documents titled or purporting to be a "Refusal to Permit Treatment"
14 and "Leaving Hospital Against Medical Advice."
15 (b) Any necessary waiver or release from liability required by a hospital
16 or physician.
17 7. DESIGNATION OF ALTERNATE AGENTS.
18 (You are not required to designate any alternate agents but you may do so. Any
19 alternate agent you designate will be able to make the same health care deci-
20 sions as the agent you designated in paragraph 1, above, in the event that
21 agent is unable or ineligible to act as your agent. If the agent you desig-
22 nated is your spouse, he or she becomes ineligible to act as your agent if
23 your marriage is dissolved.)
24 If the person designated as my agent in paragraph 1 is not available or
25 becomes ineligible to act as my agent to make a health care decision for me or
26 loses the mental capacity to make health care decisions for me, or if I revoke
27 that person's appointment or authority to act as my agent to make health care
28 decisions for me, then I designate and appoint the following persons to serve
29 as my agent to make health care decisions for me as authorized in this docu-
30 ment, such persons to serve in the order listed below:
31 A. First Alternate Agent ................................................
32 (Insert name, address, and telephone number of first alternate agent)
33 B. Second Alternate Agent ...............................................
34 (Insert name, address, and telephone number of second alternate agent)
35 8. PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attor-
36 ney for health care.
37 DATE AND SIGNATURE OF PRINCIPAL
38 (You Must Date and Sign This Power of Attorney)
39 I sign my name to this Statutory Form Durable Power of Attorney for Health
40 Care on ................ at ............., .............
41 (Date) (City) (State)
43 (You sign here)
44 (This Power of Attorney will not be valid unless it is signed by two qualified
45 witnesses who are present when you sign or acknowledge your signature. If you
46 have attached any additional pages to this form, you must date and sign each
47 of the additional pages at the same time you date and sign this Power of
1 STATEMENT OF WITNESSES
2 (This document must be witnessed by two qualified adult witnesses. None of the
3 following may be used as a witness: (1) a person you designate as your agent
4 or alternate agent, (2) a health care provider, (3) an employee of a health
5 care provider, (4) the operator of a community care facility, (5) an employee
6 of an operator of a community care facility. At least one of the witnesses
7 must make the additional declaration set out following the place where the
8 witnesses sign.)
9 I declare under penalty of perjury under the laws of Idaho that the person
10 who signed or acknowledged this document is personally known to me (or proved
11 to me on the basis of convincing evidence) to be the principal, that the prin-
12 cipal signed or acknowledged this durable power of attorney in my presence,
13 that the principal appears to be of sound mind and under no duress, fraud, or
14 undue influence, that I am not the person appointed as attorney in fact by
15 this document, and that I am not a health care provider, an employee of a
16 health care provider, the operator of a community care facility, nor an
17 employee of an operator of a community care facility.
18 Signature: ...................................................................
19 Print name: ..................................................................
20 Date: ............. Residence address: ......................................
21 Signature: ...................................................................
22 Print name: ..................................................................
23 Date: ............. Residence address: ......................................
24 (At least one of the above witnesses must also sign)
25 I further declare under penalty of perjury under the laws of Idaho that I
26 am not related to the principal by blood, marriage, or adoption, and, to the
27 best of my knowledge, I am not entitled to any part of the estate of the prin-
28 cipal upon the death of the principal under a will now existing or by opera-
29 tion of law.
30 Signature: ...................................................................
31 Signature: ...................................................................
33 (Signer of instrument may either have it witnessed as above or have his/her
34 signature notarized as below, to legalize this instrument.)
35 State of Idaho
36 County of ......... ss.
37 On this ..... day of ........ 19....
38 before me personally appeared ................................................
39 (full name of signer of instrument)
40 to me known (or proved to me on basis of satisfactory evidence) to be the per-
41 son whose name is subscribed to this instrument, and acknowledged that he/she
42 executed it. I declare under penalty of perjury that the person whose name is
43 subscribed to this instrument appears to be of sound mind and under no duress,
44 fraud or undue influence.
46 (Signature of Notary)
47 SECTION 3. That Section 39-4507, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 39-4507. EXECUTION OF DIRECTIVE. A directive shall be effective from the
50 date of execution unless otherwise revoked. Nothing in this chapter shall be
51 construed to prevent a competent person from reexecuting a directive at any
52 time. If the competent person becomes comatose or is rendered incapable of
1 communicating with the attending physician, the directive shall remain in
2 effect for the duration of the comatose condition or until such time as the
3 patient's condition renders him able to communicate with the attending physi-
5 SECTION 4. That Section 56-1020, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 56-1020. LEGISLATIVE INTENT. It is the legislative intent to recognize
8 the established common law and the fundamental right of a person to control
9 the decisions relative to the rendering or withholding of their medical care.
10 Sections 56-1020 through 56-1035, Idaho Code, in keeping with sections 39-4501
11 through 39-4509, Idaho Code, apply to noninstitutional situations.
12 It is the purpose of this legislation to establish rules and procedures
13 allowing the physician of a terminally ill person, with the authorization of
14 the person or their legal representative, to be able to issue a directive, in
15 advance, instructing emergency medical services personnel not to perform re-
16 suscitation if called to attend to those persons. A method of identification
17 is defined and correct procedures outlined for emergency medical services per-
18 sonnel to properly respond to these situations.
19 SECTION 5. That Section 56-1021, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 56-1021. DEFINITIONS. As used in sections 56-1020 through 56-1035, Idaho
23 (1) "Attending physician" means the physician who has primary responsi-
24 bility for the treatment and care of the patient, including the physician
25 responsible for monitoring and directing the activities of emergency medical
26 services personnel.
27 (2) "Cardiopulmonary resuscitation" or "CPR" means measures to restore
28 cardiac function or to support breathing in the event of cardiac or respira-
29 tory arrest or malfunction. "CPR" includes, but is not limited to, chest com-
30 pression, delivering electric shock to the chest, or placing tubes in the air-
31 way to assist breathing.
32 (3) "Comfort care" means treatment given in an attempt to protect and
33 enhance quality of life without artificially prolonging that life.
34 (4) "Decisional capacity" means the ability to provide informed consent
35 to or refusal of medical treatment.
36 (5) "Department" means the department of health and welfare.
37 (6) "Do not resuscitate identification" or "DNR identification" means a
38 standardized form of identification approved by the department, that signifies
39 that the possessor has a DNR order that has not been revoked or that the
40 possessor's attending physician has issued a DNR order for the possessor and
41 has documented the order in the possessor's medical file.
42 (7) "Do not resuscitate order" or "DNR order" means a documented direc-
43 tive from a licensed physician that emergency life-sustaining procedures
44 should not be administered to a particular person.
45 (8) "Do not resuscitate protocol" or "DNR protocol" means a standardized
46 method of procedure, approved by the board of health and welfare and adopted
47 in the rules of the department, for the withholding of emergency life-
48 sustaining procedures by physicians and emergency medical services personnel.
49 (9) "Emergency medical services personnel" means the personnel of a ser-
50 vice engaged in providing initial emergency medical assistance including, but
51 not limited to, first responders, emergency medical technicians, advanced
1 emergency medical technicians, and paramedics.
2 (10) "Health care provider" or "provider" means any person licensed, cer-
3 tified, or otherwise authorized by law to administer health care in the ordi-
4 nary course of business or practice of a profession, including emergency medi-
5 cal personnel.
6 (11) "Life-sustaining procedure" means cardiopulmonary resuscitation or a
7 component of cardiopulmonary resuscitation.
8 (12) "Terminal condition" means an incurable or irreversible condition
9 that, without the administration of life-sustaining procedures, will, in the
10 opinion of the attending physician, result in death within a relatively short
12 SECTION 6. That Section 56-1026, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 56-1026. ADHERENCE TO DNR PROTOCOL. (1) Emergency mMedical services per-
15 sonnel shall comply with the DNR protocol when presented with either DNR iden-
16 tification, or, upon transfer, a written DNR order issued directly by the
17 attending physician and shall provide comfort care to the person.
18 (2) An attending physician shall take all reasonable steps to comply with
19 the intent of the DNR identification.
20 SECTION 7. That Section 56-1027, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 56-1027. DISREGARDING OF DNR ORDER. Emergency medical services personnel
23 Health care providers may disregard the DNR order:
24 (1) If they believe in good faith that the order has been revoked; or
25 (2) To avoid verbal or physical confrontation; or
26 (3) If ordered to do so by the attending physician.
27 SECTION 8. That Section 56-1029, Idaho Code, be, and the same is hereby
28 amended to read as follows:
29 56-1029. IMMUNITY. (1) The following are not subject to civil or criminal
30 liability and are not guilty of unprofessional conduct upon discovery of DNR
31 identification upon a person and compliance with the DNR order:
32 (a) A physician who causes the withholding or withdrawal of life-
33 sustaining procedures from that person;
34 (b) A person who participates in the withholding or withdrawal of life-
35 sustaining procedures under the direction or with the authorization of a
37 (c) Health care providers, including e Emergency medical services person-
38 nel, who cause or participate in the withholding or withdrawal of life-
39 sustaining procedures from that person; or
40 (d) Physicians, persons under the direction or authorization of a physi-
41 cian, or emergency medical services personnel that provide life-sustaining
42 procedures pursuant to an oral or written revocation communicated to them
43 by a person who possesses DNR identification; or
44 (e) Health care providers acting pursuant to and in compliance with sec-
45 tion 56-1027, Idaho Code.
46 (2) The provisions of subsections (1)(a) through (1)( de) of this section
47 apply when a life-sustaining procedure is withheld or withdrawn in accordance
48 with a DNR protocol.
49 (3) Emergency medical services personnel Health care providers, coroners
1 and deputy coroners who follow a DNR order from a licensed physician are not
2 subject to civil or criminal liability and are not guilty of unprofessional
STATEMENT OF PURPOSE
This bill corrects a number of technical problems in the Natural Death
Act and a problem in the DNR (Do Not Resuscitate orders) act. The
following corrections are made:
(1) Since the Living Will is being amended, the first paragraph of
39-4504 is amended to ensure that existing Living Wills, executed
prior to the amendment date, are still valid.
(2) The Living Will covers terminal situations when artificial life-
sustaining procedures would only prolong life artificially. The form
has three choices, one of which is picked by the person executing the
form. The second choice currently allows the withdrawal of artificial
life-sustaining procedures except for nutrition and hydration.
However, the existing statute does not allow a subchoice to choose
between just nutrition or just hydration. This bill adds that
subchoice so that the person can choose both nutrition and hydration,
or only nutrition, or only hydration. The bill also adds language to
provide that both nutrition and hydration will be administered if none
of the subchoice boxes are checked.
(3) The current Living Will, as paragraph 2, references the
appointment of a health care attorney in fact. However, this
appointment is actually made in the Durable Power of Attorney For
Health Care ("DPAHC") in 39-4505. Since the existing language is not
only confusing, but may create a conflict with the DPAHC if two
different persons are named in the Living Will and in the DPAHC, that
language is eliminated. The remaining paragraphs of the Living Will
are therefore renumbered.
(4) The first sentence of 39-4540, regarding the DPAHC, says that the
DPAHC is done "in order to implement the general desires of a person as
expressed in the 'living will'". However, this is not correct, since
the DPAHC covers many situations where the Living Will is not in
effect. For example, if the person is unable to communicate with
medical personnel temporarily, perhaps by being under anesthesia
during an operation, but is not terminal, the DPAHC would apply, but
the Living Will would not. Therefore, that language is deleted.
(5) In paragraph 3 of the DPAHC, the agent is required to make
decisions consistent with the prior expressed desires of the person.
To avoid confusion about whether the Living Will is one of the
documents that expresses such desires, the bill adds language stating
that the Living Will, or any similar document, is such an expression
(6) The 1996 Health Insurance Portability and Accountability Act
(relating to medical privacy and release of information and records
and commonly referred to as "HIPAA") is now in full effect. Although
most professionals believe that the existing language of the DPAHC
meets HIPAA standards, some medical personnel and entities have
refused to release information to a DPAHC agent because of HIPAA.
Therefore, the bill adds a full HIPAA release to paragraph 5 of the
DPAHC to ensure that a DPAHC agent can receive information and records
(7) 39-4507 covers execution of a medical directive. However, the
last sentence of the section has language stating that, in essence,
the directive is not invalidated by the subsequent incapacity of the
person, temporary or permanent. However, this is already covered in
paragraph 2 of the DPAHC, which states that "This power of attorney
shall not be affected by my subsequent incapacity." The paragraph 2
language is much clearer than the language in 39-4507, and that
language is therefore deleted.
(8) Finally, 56-1020 through 56-1035 covers what is commonly known as
a "DNR" or "Do Not Resuscitate" order. For reasons that are unclear and
do not appear to have any basis in legal requirements or practical
requirements relating to such orders, the existing statute states that
a DNR order only applies in "noninstitutional situations". There is no
logical reason that a DNR should not also apply in an institutional
situation. The existing limitation also means that the wishes of a
person as the DNR would be frustrated if the person became
institutionalized in any way, even in assisted living or a hospital.
Therefore, that language is deleted. A number of technical changes
are also made to ensure that DNR rules apply to all medical personnel.
The net effect of the bill is to ensure that persons can make choices
regarding their health care that will be effective and will be carried
out. It will also ensure that medical personnel and institutions will
have clear terms and conditions on which to rely when interacting with
medical directives and agents of a patient.
This bill will have no fiscal impact.
Name: Robert L. Aldridge
Phone: (208) 336-9880
Name: William A. Von Tagen
Deputy Attorney General
STATEMENT OF PURPOSE/FISCAL NOTE S 1249