AB 461 — Revises provisions governing health care. (BDR 38-156)

Section 47 of this bill provides that under certain circumstances, a health care professional, health care institution, an agent or default surrogate acting in good faith is not subject to civil or criminal liability or certain discipline.

Section 48 of this bill prohibits a person from taking certain actions concerning an advance health-care directive.

Section 48 additionally provides that an violates such prohibitions.

the individual has a cause of action against a person that Section 49 of this bill provides that an electronic copy of an advance health- care directive, a revocation of an advance health-care directive or a designation or disqualification of a surrogate has the same effect as the original.

Section 49 also establishes requirements for creating a certified physical copy of an advance health- care directive that is in electronic form.

Section 50 of this bill provides that a court acting under this Uniform Act may only grant equitable relief, including, without limitation, a restraining order or by an agent or default surrogate that is inconsistent with the Act;

(2) to prevent an agent or default surrogate from making a health care decision for an individual under certain circumstances;

or (3) to order implementation of a health care decision.

Section 51 of this bill provides that the Uniform Act does not authorize mercy killing, assisted suicide or euthanasia.

Section 52 of this bill provides that in applying and construing the Uniform jurisdictions that enact the Uniform Act.promotion of uniformity of the law among Sections 1, 53-59.5 and 61-79 of this bill make conforming changes to reflect the changes made in this bill and to remove and replace references to repealed sections.

Sections 4-27 of this bill define certain words and terms for the purposes of sections 3-52 and the provisions of existing law that contain only certain provisions of the Uniform Act.

Section 60 of this bill requires the Department of Health and Human Services, program to educate and inform residents of this State concerning planning for long- term care.

Section 83 of this bill repeals existing provisions governing the execution of a declaration concerning the withholding or withdrawal of life-sustaining treatment, thereby making directions concerning such treatment governed solely by the Uniform Act.

(NRS 449A.400-449A.481) THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1.

NRS 159.0753 is hereby amended to read as follows:

159.0753 1.

Any person who wishes to request to nominate another person to be appointed as his or her guardian may do so:

- *AB461_R1* – 4 – (a) If nominating a guardian of the estate, pursuant to NRS 162A.250;

(b) If nominating a guardian of the person, pursuant to [NRS 162A.800;] section 32 of this act;

or (c) By completing a form requesting to nominate a guardian in accordance with this section.

2.

A form requesting to nominate a guardian pursuant to this section must be:

(a) Signed by the person requesting to nominate a guardian;

(b) Signed by two impartial adult witnesses who have no interest, financial or otherwise, in the estate of the person requesting to nominate a guardian and who attest that the person has the mental capacity to understand and execute the form;

and (c) Notarized.

3.

A request to nominate a guardian pursuant to this section may be in substantially the following form, and must be witnessed and executed in the same manner as the following form:

REQUEST TO NOMINATE GUARDIAN I, ....................

(insert your name), residing at ...................

(insert your address), am executing this notarized document as my written declaration and request for the person(s) designated below to be appointed as my guardian should it become necessary.

I am advising the court and all persons and entities as follows:

1.

As of the date I am executing this request to nominate a guardian, I have the mental capacity to understand and execute this request.

2.

This request pertains to a (circle one):

(guardian of the person)/(guardian of the estate)/(guardian of the person and estate).

3.

Should the need arise, I request that the court give my preference to the person(s) designated below to serve as my appointed guardian.

4.

I request that my ....................

(insert relation), ....................

(insert name), serve as my appointed guardian.

5.

If ....................

(insert name) is unable or unwilling to serve as my appointed guardian, then I request that my ....................

(insert relation), ....................

(insert name), serve as my appointed guardian.

- *AB461_R1* – 5 – 6.

I do not, under any circumstances, desire to have any private, for-profit guardian serve as my appointed guardian.

5 (YOU MUST DATE AND SIGN THIS DOCUMENT) 7 I sign my name to this document on .................

(date) ..........................................................................................

(Signature) (YOU MUST HAVE TWO QUALIFIED ADULT WITNESSES DATE AND SIGN THIS DOCUMENT) I declare under penalty of perjury that the principal is personally known to me, that the principal signed this request to nominate a guardian in my presence, that the principal appears to be of sound mind, has the mental capacity to understand and execute this document and is under no duress, fraud or undue influence, and that I have no interest, financial or otherwise, in the estate of the principal.

................................................................

(Signature of first witness) ................................................................

(Print name) ................................................................

(Date) ................................................................

(Signature of second witness) ................................................................

(Print name) ................................................................

(Date) CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC State of Nevada } } County of ......................................

} On this ..........

day of ..............., in the year ......., before me, ....................

(insert name of notary public), personally appeared ....................

(insert name of principal), ....................

(insert name of first witness) and ....................

(insert name of - *AB461_R1* – 6 – second witness), personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to this instrument, and acknowledged that they have signed this instrument.

6 ................................................................

(Signature of notarial officer) (Seal, if any) 4.

The Secretary of State shall make the form established in subsection 3 available on the Internet website of the Secretary of State.

5.

The Secretary of State may adopt any regulations necessary to carry out the provisions of this section.

Sec.

2.

Chapter 162A of NRS is hereby amended by adding thereto the provisions set forth as sections 3 to 52, inclusive, of this act.

Sec.

3.

NRS 162A.710, 162A.715, 162A.733, 162A.736, 162A.755 and 162A.855 and sections 3 to 52, inclusive, of this act may be cited as the Uniform Health Care Decisions Act.

Sec.

4.

“Advance mental health-care directive” means a power of attorney for health care, health care instruction, or both, created under section 34 of this act.

Sec.

5.

“Agent” means an individual appointed under a power of attorney for health care to make a health care decision for the individual who made the appointment.

The term includes, without limitation, a co-agent or alternate agent appointed under section 44 of this act.

Sec.

6.

“Capacity” means having capacity under section 28 of this act.

Sec.

7.

“Cohabitant” means each of two individuals who have been living together as a couple for at least 1 year after each became an adult or was emancipated and who are not married to each other or are not domestic partners with each other.

Sec.

8.

“Default surrogate” means an individual authorized under section 36 of this act to make a health care decision for another individual.

Sec.

9.

“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

Sec.

10.

“Family member” means a spouse, domestic partner, adult child, parent or grandparent, or an adult descendant of a spouse, domestic partner, child, parent or grandparent.

- *AB461_R1* – 7 – Sec.

11.

“Health care decision” means a decision made by an individual, or the surrogate of the individual, regarding the individual’s health care, including, without limitation, the:

1.

Selection or discharge of a health care professional or health care institution;

2.

Approval or disapproval of a diagnostic test, surgical procedure, medication, therapeutic intervention or other type of health care;

and 3.

Direction to provide, withhold or withdraw artificial nutrition or hydration, mechanical ventilation or other health care.

Sec.

12.

“Health care institution” means a facility or agency licensed, certified or otherwise authorized or permitted by other law to provide health care in this State in the ordinary course of business.

Sec.

13.

“Health care instruction” means a direction, whether or not in a record, made by an individual that indicates the goals, preferences or wishes of the individual concerning the provision, withholding or withdrawal of health care.

The term includes a direction intended to be effective if a specified condition arises.

Sec.

14.

“Health care professional” means a physician or other individual licensed, certified or otherwise authorized or permitted by other law of this State to provide health care in this State in the ordinary course of business or the practice of the profession of the physician or individual.

Sec.

15.

“Individual” means a natural person who is an adult or emancipated minor.

Sec.

16.

“Mental health care” means care or treatment or a service or procedure to maintain, monitor, diagnose or otherwise affect an individual’s mental illness or other psychiatric, psychological or psychosocial condition.

Sec.

17.

“Person” means an individual, estate, business or nonprofit entity, government or governmental subdivision, agency or instrumentality or other legal entity.

Sec.

18.

“Person interested in the welfare of the individual” means:

1.

The surrogate of the individual;

2.

A family member of the individual;

3.

The cohabitant of the individual;

4.

A public entity providing health care case management or protective services to the individual;

5.

A person appointed under other law to make decisions for the individual under a power of attorney for financial matters;

or - *AB461_R1* – 8 – 6.

A person that has an ongoing personal or professional relationship with the individual, including, without limitation, a person that has provided educational or health care services or supported decision making to the individual.

Sec.

19.

“Physician” means an individual authorized to practice medicine under chapter 630 of NRS or osteopathy under chapter 633 of NRS.

Sec.

20.

“Power of attorney for health care” means a record in which an individual appoints an agent to make health care decisions for the individual.

Sec.

21.

“Reasonably available” means able to be contacted without undue effort and being willing and able to act in a timely manner considering the urgency of an individual’s health care situation.

When used to refer to an agent or default surrogate, the term includes being willing and able to comply with the duties under section 41 of this act in a timely manner considering the urgency of an individual’s health care situation.

Sec.

22.

“Record” means information:

1.

Inscribed on a tangible medium;

or 2.

Stored in an electronic or other medium and retrievable in perceivable form.

Sec.

23.

“Responsible health care professional” means:

1.

A health care professional designated by an individual, or the surrogate of an individual, to have primary responsibility for the individual’s health care or for overseeing a particular course of treatment;

or 2.

In the absence of a designation under subsection 1 or, if the professional designated under subsection 1 is not reasonably available, a health care professional who has primary responsibility for overseeing the health care of the individual or for overseeing a particular course of treatment.

Sec.

24.

“Sign” means, with present intent to authenticate or adopt a record, to:

1.

Execute or adopt a tangible symbol;

or 2.

Attach to or logically associate with the record an electronic symbol, sound or process.

Sec.

25.

“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any other territory or possession subject to the jurisdiction of the United States.

The term includes a federally recognized Indian tribe.

Sec.

26.

“Supported decision making” means assistance from one or more persons of an individual’s choosing that helps the individual make or communicate a decision, including, - *AB461_R1* – 9 – without limitation, by helping the individual understand the nature and consequences of the decision.

Sec.

27.

“Surrogate” means:

1.

An agent;

2.

A default surrogate;

or 3.

A guardian authorized to make health care decisions.

Sec.

28.

1.

An individual has capacity for the purposes of NRS 162A.710, 162A.715, 162A.733, 162A.736, 162A.755 and 162A.855 and sections 3 to 52, inclusive, of this act if the individual:

(a) Is willing and able to communicate a decision independently or with appropriate services, technological assistance, supported decision making or other reasonable accommodation;

and (b) In making or revoking:

(1) A health care decision, understands the nature and consequences of the decision, including, without limitation, the primary risks and benefits of the decision;

(2) A health care instruction, understands the nature and consequences of the instruction, including, without limitation, the primary risks and benefits of the choices expressed in the health care instruction;

and (3) An appointment of an agent under a power of attorney for health care or identification of a default surrogate under paragraph (a) of subsection 2 of section 36 of this act, recognizes the identity of the individual being appointed or identified and understands the general nature of the relationship of the individual making the appointment or identification with the individual being appointed or identified.

2.

The right of an individual who has capacity to make a decision about the individual’s health care is not affected by whether the individual creates or revokes an advance health-care directive.

Sec.

29.

1.

An individual is presumed to have capacity to make or revoke a health care decision, health care instruction or power of attorney for health care unless:

(a) A court has found the individual lacks capacity to do so;

or (b) The presumption is rebutted under subsection 2.

2.

Subject to sections 30 and 31 of this act, a presumption under subsection 1 may be rebutted by a finding that the individual lacks capacity:

(a) Subject to subsection 3, made on the basis of a contemporaneous examination by any of the following:

(1) A physician;

(2) A licensed psychologist;

- *AB461_R1* – 10 – (3) An individual with training and expertise in the finding of lack of capacity who is licensed or otherwise authorized to practice in this State as:

(I) A physician assistant;

(II) An advanced practice registered nurse;

or (III) A clinical social worker;

or (4) A responsible health care professional not described in subparagraph (1), (2) or (3) if:

(I) The individual about whom the finding is to be made is experiencing a health condition requiring a decision regarding health care treatment to be made promptly to avoid loss of life or serious harm to the health of the individual;

and (II) An individual listed in subparagraph (1), (2), or (3) is not reasonably available;

(b) Made in accordance with accepted standards of the profession and scope of practice of the individual making the finding and to a reasonable degree of certainty;

and (c) Documented in a record signed by the individual making the finding that includes, without limitation, an opinion of the cause, nature, extent and probable duration of the lack of capacity.

3.

The finding under subsection 2 may not be made by:

(a) A family member of the individual presumed to have capacity;

(b) The cohabitant of the individual or a descendant of the cohabitant;

or (c) The individual’s surrogate, a family member of the surrogate or a descendant of the surrogate.

4.

If the finding under subsection 2 was based on a condition the individual no longer has or a responsible health care professional subsequently has good cause to believe the individual has capacity, the individual is presumed to have capacity unless a court finds the individual lacks capacity or the presumption is rebutted under subsection 2.

Sec.

30.

1.

As soon as reasonably feasible, an individual who makes a finding under subsection 2 of section 29 of this act shall inform the individual about whom the finding was made or the individual’s responsible health care professional of the finding.

2.

As soon as reasonably feasible, a responsible health care professional who is informed of a finding under subsection 2 of section 29 of this act shall inform the individual about whom the finding was made and the individual’s surrogate.

3.

An individual found under subsection 2 of section 29 of this act to lack capacity may object to the finding:

- *AB461_R1* – 11 – (a) By orally informing a responsible health care professional;

(b) In a record provided to a responsible health care professional or the health care institution in which the individual resides or is receiving care;

or (c) By another act that clearly indicates the individual’s objection.

4.

If the individual objects under subsection 3, the finding under subsection 2 of section 29 of this act is not sufficient to rebut the presumption of capacity in subsection 1 of section 29 of this act, and the individual must be treated as having capacity, unless:

(a) The individual withdraws the objection;

(b) A court finds that the individual lacks the presumed capacity;

(c) The individual is experiencing a health condition requiring that a decision regarding health care treatment be made promptly to avoid imminent loss of life or serious harm to the health of the individual;

or (d) Subject to subsection 5, the finding is confirmed by a second finding made by an individual authorized under paragraph (a) of subsection 2 of section 29 of this act who:

(1) Did not make the first finding;

(2) Is not a family member of the individual who made the first finding;

and (3) Is not the cohabitant of the individual who made the first finding or a descendant of the cohabitant.

5.

A second finding that the individual lacks capacity under paragraph (d) of subsection 4 is not sufficient to rebut the presumption of capacity if the individual is requesting the provision or continuation of life-sustaining treatment and the finding is being used to make a decision to withhold or withdraw the treatment.

6.

As soon as reasonably feasible, a health care professional who is informed of an objection under subsection 3 shall:

(a) Communicate the objection to a responsible health care professional;

and (b) Document the objection and the date of the objection in the individual’s medical record or communicate the objection and the date of the objection to an administrator with responsibility for medical records of the health care institution providing health care to the individual, who shall document the objection and the date of the objection in the individual’s medical record.

Sec.

31.

1.

An individual found under subsection 2 of section 29 of this act to lack capacity, a responsible health care professional, the health care institution providing health care to - *AB461_R1* – 12 – the individual or a person interested in the welfare of the individual may petition a district court in the county in which the individual resides or is located to determine whether the individual lacks capacity.

2.

The court in which a petition under subsection 1 is filed shall appoint legal counsel to represent the individual if the individual does not have legal counsel in the proceeding.

The court shall hear the petition as soon as possible after the petition is filed.

As soon as possible, the court shall determine whether the individual lacks capacity.

The court may determine that the individual lacks capacity only if the court finds by clear and convincing evidence that the individual lacks capacity.

Sec.

32.

1.

An individual may create a health care instruction that expresses the individual’s preferences for future health care, including, without limitation, preferences regarding:

(a) Health care professionals or health care institutions;

(b) How a health care decision will be made and communicated;

(c) Persons that should or should not be consulted regarding a health care decision;

(d) A person to serve as guardian for the individual if one is appointed;

and (e) An individual to serve as a default surrogate.

2.

A health care professional to whom an individual communicates or provides an instruction under subsection 1 shall document the instruction and the date of the instruction in the individual’s medical record or communicate the instruction and date of the instruction to an administrator with responsibility for medical records of the health care institution providing health care to the individual, who shall document the instruction and the date of the instruction in the individual’s medical record.

3.

A health care instruction made by an individual that conflicts with an earlier health care instruction made by the individual, including, without limitation, an instruction documented in a medical order, revokes the earlier instruction to the extent of the conflict.

4.

A health care instruction may be in the same record as a power of attorney for health care.

Sec.

33.

1.

An individual may create a power of attorney for health care to appoint an agent to make a health care decision for the individual.

2.

An individual is disqualified from acting as agent for an individual who lacks capacity to make health care decisions if:

(a) A court finds that the potential agent poses a danger to the individual’s well-being, even if the court does not issue a - *AB461_R1* – 13 – protective order or restraining order against the potential agent;

or (b) The potential agent is an owner, operator, employee or contractor of a nursing home at which the individual resides or is receiving care, unless the owner, operator, employee or contractor is a family member of the individual, the cohabitant of the individual or a descendant of the cohabitant.

3.

A health care decision made by an agent is effective without judicial approval.

4.

A power of attorney for health care must be in a record, signed by the individual creating the power, and signed by an adult witness who:

(a) Reasonably believes that the act of the individual to create the power of attorney is voluntary and knowing;

(b) Must not be:

(1) The agent appointed by the individual;

(2) The spouse, domestic partner or cohabitant of the agent;

or (3) If the individual resides in or is receiving care in a nursing home, the owner, operator, employee or contractor of the nursing home;

and (c) Is present when the individual signs the power of attorney or when the individual represents that the power of attorney reflects the individual’s wishes.

5.

A witness under subsection 4 is considered present if the witness and the individual are:

(a) Physically present in the same location;

(b) Using electronic means that allow for real time audio and visual transmission and communication in real time to the same extent as if the witness and individual were physically present in the same location;

or (c) Able to speak to and hear each other in real time through audio connection if:

(1) The identity of the individual is personally known to the witness;

or (2) The witness is able to authenticate the identity of the individual by receiving accurate answers from the individual that enable the authentication.

6.

A power of attorney for health care may include a health care instruction.

Sec.

34.

1.

An individual may create an advance health- care directive that addresses only mental health care for the individual.

The directive may include a health care instruction, a power of attorney for health care, or both.

- *AB461_R1* – 14 – 2.

A health care instruction under this section may include the individual’s:

(a) Statement of the general philosophy and objectives regarding mental health care;

and (b) Specific goals, preferences and wishes regarding the provision, withholding or withdrawal of a form of mental health care, including:

(1) Preferences regarding professionals, programs and facilities;

(2) Admission to a mental health facility, including, without limitation, the duration of admission;

(3) Preferences regarding medications;

(4) Refusal to accept a specific type of mental health care, including, without limitation, a medication;

and (5) Preferences regarding means of crisis intervention.

3.

A power of attorney for health care under this section may appoint an agent to make decisions only for mental health care.

4.

An individual may direct in an advance mental health-care directive that, if the individual is experiencing a psychiatric or psychological event specified in the directive, the individual may not revoke the directive or a part of the directive.

5.

If an advance mental health-care directive includes the direction under subsection 4, the advance mental health-care directive must be in a record that is separate from any other advance health-care directive created by the individual and signed by the individual creating the advance mental health-care directive and at least two adult witnesses who:

(a) Attest that to the best of their knowledge that the individual:

(1) Understood the nature and consequences of the direction, including, without limitation, its risks and benefits;

and (2) Made the direction voluntarily and without coercion or undue influence;

(b) Are not:

(1) The agent appointed by the individual;

(2) The spouse, domestic partner or cohabitant of the agent;

and (3) If the individual resides in a nursing home, the owner, operator, employee or contractor of the nursing home;

and (c) Are physically present in the same location as the individual.

Sec.

35.

1.

If a direction in an advance mental health-care directive of an individual conflicts with a direction in another advance health-care directive of the individual, the later direction revokes the earlier direction to the extent of the conflict.

- *AB461_R1* – 15 – 2.

An appointment of an agent to make decisions only for the mental health care of the individual does not revoke an earlier appointment of an agent to make any other health care decisions for the individual.

A later appointment revokes the authority of an agent under the earlier appointment to make decisions about mental health care unless otherwise specified in the power of attorney making the later appointment.

3.

Appointment of an agent to make health care decisions for an individual other than decisions about mental health care made after appointment of an agent authorized to make only mental health care decisions does not revoke the appointment of the agent authorized to make only mental health care decisions.

Sec.

36.

1.

A default surrogate may make a health care decision for an individual who lacks capacity to make health care decisions and for whom:

(a) An agent authorized to make health care decisions has not been appointed or is not reasonably available;

or (b) A guardian authorized to make health care decisions has not been appointed.

2.

Unless the individual has an advance health-care directive that indicates otherwise, a member of the following classes, in descending order of priority, who is reasonably available and not disqualified under section 38 of this act, may act as a default surrogate for the individual:

(a) An adult whom the individual has identified, other than in a power of attorney for health care, to make a health care decision for the individual if the individual cannot make the decision;

(b) The spouse or domestic partner of the individual, unless:

(1) A petition for annulment, divorce, dissolution of marriage, legal separation or termination has been filed and not dismissed or withdrawn;

(2) A decree of annulment, divorce, dissolution of marriage, legal separation or termination has been issued;

(3) The individual and the spouse or domestic partner have agreed in a record to a legal separation;

or (4) The spouse or domestic partner has abandoned the individual for more than 1 year;

(c) The adult child or parent of the individual;

(d) The cohabitant of the individual;

(e) The adult sibling of the individual;

(f) The adult grandchild or grandparent of the individual;

(g) An adult not listed in paragraphs (a) to (f), inclusive, who has assisted the individual with supported decision making routinely during the preceding 6 months;

- *AB461_R1* – 16 – (h) The adult stepchild of the individual not listed in paragraphs (a) to (g), inclusive, who the individual actively parented during the minor years of the stepchild and with whom the individual has an ongoing relationship;

or (i) An adult not listed in paragraphs (a) to (h), inclusive, who has exhibited special care and concern for the individual and is familiar with the personal values of the individual.

3.

A responsible health care professional may require an individual who assumes authority to act as a default surrogate to provide a declaration in a record under penalty of perjury stating facts and circumstances reasonably sufficient to establish the authority.

4.

If a responsible health care professional reasonably determines that an individual who has assumed authority to act as a default surrogate is not willing or able to comply with a duty under section 41 of this act or fails to do so in a timely manner, the professional may recognize the individual next in priority under subsection 2 as the default surrogate.

5.

A health care decision made by a default surrogate is effective without judicial approval.

Sec.

37.

1.

A default surrogate who assumes authority under section 36 of this act shall inform a responsible health care professional if two or more members of a class under subsection 2 of section 36 of this act have assumed authority to act as default surrogates and the members do not agree on a health care decision.

2.

A responsible health care professional shall comply with the decision of a majority of the members of the class with highest priority under subsection 2 of section 36 of this act who have communicated their views to the professional and the professional reasonably believes are acting consistent with their duties under section 41 of this act.

3.

If a responsible health care professional is informed that the members of the class who have communicated their views to the professional are evenly divided concerning the health care decision, the professional shall make a reasonable effort to solicit the views of members of the class who are reasonably available but have not yet communicated their views to the professional.

The professional, after the solicitation, shall comply with the decision of a majority of the members who have communicated their views to the professional and the professional reasonably believes are acting consistent with their duties under section 41 of this act.

4.

If the class remains evenly divided after the effort is made under subsection 3, the health care decision must be made as - *AB461_R1* – 17 – provided by other law of this State regarding the treatment of an individual who is found to lack capacity.

Sec.

38.

1.

An individual for whom health care decisions would be made may disqualify another individual from acting as a default surrogate for the first individual.

The disqualification may be in a record signed by the first individual or communicated verbally or nonverbally to the individual being disqualified, another individual or a responsible health care professional.

Disqualification under this subsection is effective even if made by an individual who lacks capacity to make an advance health-care directive if the individual clearly communicates a desire that the individual being disqualified not make health care decisions for the individual.

2.

An individual is disqualified from acting as a default surrogate for an individual who lacks capacity to make health care decisions if:

(a) A court finds that the potential default surrogate poses a danger to the individual’s well-being, even if the court does not issue a protective order or restraining order against the potential surrogate;

(b) The potential default surrogate is an owner, operator, employee or contractor of a nursing home in which the individual is residing or receiving care unless the owner, operator, employee or contractor is a family member of the individual, the cohabitant of the individual or a descendant of the cohabitant;

or (c) The potential default surrogate refuses to provide a timely declaration under subsection 3 of section 36 of this act.

Sec.

39.

1.

An individual may revoke the appointment of an agent, the designation of a default surrogate or a health care instruction in whole or in part, unless:

(a) A court finds that the individual lacks capacity to do so;

(b) The individual is found under subsection 2 of section 29 of this act to lack capacity to do so and, if the individual objects to the finding, the finding is confirmed under paragraph (d) of subsection 4 of section 30 of this act;

or (c) The individual created an advance mental health-care directive that includes the provision under subsection 4 of section 34 of this act and the individual is experiencing the psychiatric or psychological event specified in the directive.

2.

Revocation under subsection 1 may be by any act of the individual that clearly indicates that the individual intends to revoke the appointment, designation or instruction, including, without limitation, an oral statement to a health care professional.

3.

Except as otherwise provided in section 35 of this act, an advance health-care directive of an individual that conflicts with - *AB461_R1* – 18 – another advance health-care directive revokes the earlier directive to the extent of the conflict.

4.

Unless otherwise provided in an individual’s advance health-care directive appointing an agent, the appointment of a spouse or domestic partner of an individual as agent for the individual is revoked by:

(a) A petition for annulment, divorce, dissolution of marriage, legal separation or termination that has been filed and not dismissed or withdrawn;

(b) A decree of annulment, divorce, dissolution of marriage, legal separation or termination;

(c) The individual and the spouse or domestic partner having agreed in a record to a legal separation;

or (d) Abandonment of the individual for more than 1 year by the spouse or domestic partner of the individual.

Sec.

40.

1.

An advance health-care directive created outside this State is valid if the advance health-care directive complies with:

(a) The law of the state specified in the directive or, if no state is specified, the state in which the individual created the directive;

or (b) The provisions of NRS 162A.710, 162A.715, 162A.733, 162A.736, 162A.755 and 162A.855 and sections 3 to 52, inclusive, of this act.

2.

A person may assume without inquiry that an advance health-care directive is genuine, valid and still in effect and may implement or rely on it, unless the person has good cause to believe that the directive is invalid or has been revoked.

3.

An advance health-care directive, revocation of a directive or a signature on a directive or revocation may not be denied legal effect or enforceability solely because it is in electronic form.

4.

Evidence relating to an advance health-care directive, revocation of a directive or a signature on a directive or revocation may not be excluded in a proceeding solely because the evidence is in electronic form.

5.

The provisions of NRS 162A.710, 162A.715, 162A.733, 162A.736, 162A.755 and 162A.855 and sections 3 to 52, inclusive, of this act do not affect the validity of an electronic record or signature that is valid under chapter 719 of NRS.

6.

If any provision of NRS 162A.710, 162A.715, 162A.733, 162A.736, 162A.755 and 162A.855 and sections 3 to 52, inclusive, of this act conflict with other law of this State relating to the creation, execution, implementation or revocation of an advance health-care directive, NRS 162A.710, 162A.715, 162A.733, - *AB461_R1* – 19 – 162A.736, 162A.755 and 162A.855 and sections 3 to 52, inclusive, of this act prevails.

Sec.

41.

1.

An agent or default surrogate has a fiduciary duty to the individual for whom the agent or default surrogate is acting when exercising or purporting to exercise a power under section 42 of this act.

2.

An agent or default surrogate shall make a health care decision in accordance with the direction of the individual in an advance health-care directive and other goals, preferences and wishes of the individual, including, without limitation, those that may reflect the individual’s culture, to the extent known or reasonably ascertainable by the agent or default surrogate.

3.

If there is not a direction in an advance health-care directive and the goals, preferences and wishes of the individual regarding a health care decision are not known or reasonably ascertainable by the agent or default surrogate, the agent or default surrogate shall make the decision in accordance with the agent’s or default surrogate’s determination of the individual’s best interest.

4.

In determining the individual’s best interest under subsection 3, the agent or default surrogate shall:

(a) Give primary consideration to the contemporaneous communications of the individual, including, without limitation, verbal and nonverbal expressions;

(b) Consider the individual’s values, including, without limitation, those that may reflect the individual’s culture, to the extent known or reasonably ascertainable by the agent or default surrogate;

and (c) Consider the risks and benefits of the potential health care decision.

5.

As soon as reasonably feasible, an agent or default surrogate who is informed of a revocation of an advance health- care directive or disqualification of an agent or default surrogate shall communicate the revocation or disqualification to a responsible health care professional.

Sec.

42.

1.

Except as otherwise provided in subsection 3, the power of an agent or default surrogate commences when the individual is found under subsection 2 of section 29 of this act or by a court to lack capacity to make a health care decision.

The power ceases if the individual later is found to have capacity to make a health care decision, or the individual objects under subsection 3 of section 30 of this act to the finding of lack of capacity under subsection 2 of section 29 of this act.

The power resumes if:

- *AB461_R1* – 20 – (a) The power ceased because the individual objected under subsection 3 of section 30 of this act;

and (b) The finding of lack of capacity is confirmed under paragraph (d) of subsection 4 of section 30 of this act or a court finds that the individual lacks capacity to make a health care decision.

2.

An agent or default surrogate may request, receive, examine, copy and consent to the disclosure of medical and other health care information about the individual if the individual would have the right to request, receive, examine, copy or consent to the disclosure of the information.

3.

A power of attorney for health care may provide that the power of an agent under subsection 2 commences upon appointment.

4.

If no other person is authorized to do so, an agent or default surrogate may apply for public or private health insurance and benefits on behalf of the individual.

An agent or default surrogate who may apply for insurance and benefits does not, solely by reason of the power, have a duty to apply for the insurance or benefits.

5.

An agent or default surrogate may not consent to voluntary admission of the individual to a facility for mental health treatment unless:

(a) Voluntary admission is specifically authorized by the individual in an advance health-care directive in a record;

and (b) The admission is for not more than the maximum of the number of days specified in the directive or 72 hours, including weekends and holidays, whichever is less.

6.

Except as otherwise provided in subsection 7, an agent or default surrogate may not consent to the placement of the individual in a nursing home if the placement is intended to be for more than 100 days if:

(a) An alternative living arrangement is reasonably feasible;