SB 642 — Providing options in living wills and combined medical powers of attorney and living wills

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Red = new code to be enacted WEST virginia legislature regular session IntroducedCommittee Substitute for Senate Bill 642 By Senators Maroney, Azinger, Rucker, Takubo, Trump, and RobertsRoberts, [Introducedoriginal Februarysponsors 18,[Originating 2019;in the Committee on the Judiciary;

ReferredReported toon theFebruary Committee23, on2019] the  Judiciary]  A BILL to amend and reenact §16-30-3 and §16-30-4 of the Code of West Virginia, 1931, as amended, all relating to providing options in living wills, and combined medical powers of attorney and living wills, that permit the principal to either be provided with medically assisted food and fluids or not to be provided with medically assisted food and fluids if the principal is unable to communicate his or her desires;

(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 the West Virginia Board of Examiners for registeredRegistered professionalProfessional nursesNurses rule, advanced practice registered nurse,19CSRnurse,19 CSR 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.

(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§44A-1-1 44Aet ofseq. this code.

of this code.

(h) “Guardian” means a person appointed by a court pursuant to the provisions of chapter§44A-1-1 44Aet ofseq. this code who is responsible for the personal affairs of a protected person and includes a limited guardian or a temporary guardian.

of this code who is responsible for the personal affairs of a protected person and includes a limited guardian or a temporary guardian.

(k) “Health care provider” means any licensed physician, dentist, nurse, physician’s assistant, paramedic, psychologist, or other person providing medical, dental, nursing, psychologicalpsychological, or other health care services of any kind.

(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, presentpresent, 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.

(w) “Protected person” means an adult who, pursuant to the provisions of chapter§44A-1-1 44Aet ofseq. 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:

 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:

(z) “Surrogate decisionmaker”decision maker” or “surrogate” means an individual 18 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.

(a) Any competent adult may execute at any time a living will or medical power of attorney.  (b) A living will or medical power of attorney made pursuant to this article shall be:

(2) executedExecuted 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;Dated;

(4) signedSigned in the presence of two or more witnesses at least 18 years of age;

and (5) signedSigned and attested by such witnesses whose signatures and attestations shall be acknowledged before a notary public as provided in subsection§16-30-4(d) (d) of this section.code.

(b) (c) In addition, a witness may not be:

(c) (d) The following persons may not serve as a medical power of attorney representative or successor medical power of attorney representative:

(2) anAn employee of a treating health care provider not related to the principal;

(3) anAn operator of a health care facility serving the principal;

or (4) anyAny 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) (e) 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 attorneyattorney, or a copy of either or a revocation of either a part of the principal’s medical records.

(e) (f) 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:

(f) (g) 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 facilitiesfacilities, or any other similar person or group, without separate compensation, does not constitute the unauthorized practice of law.

(g) (h) 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.

STATE OF WEST VIRGINIA LIVING WILL The Kind of Medical Treatment I Want and Don’t Want Ifif I Have a Terminal Condition or Amam In a Persistent Vegetative State   Living will made this _____________________________________day__________________________________day of _______________(month, year).

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 (an incurable or irreversible condition for which the administration of life-prolonging intervention will serve only to prolong the dying process) or to be in a persistent vegetative state (I am unconscious and am neither aware of my environment nor able to interact with others)others), (I have intact brain stem function but no higher cortical function and have neither self-awareness nor awareness of my surroundings in a learned manner), 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,                   , wish to be provided medically-assistedmedically assisted food (nutrition) and fluids (hydration), for example, intravenously or by feeding tube, for so long as my body is able to assimilate them, unless the provision of such becomes excessively burdensome to me, or would cause significant physical discomfort.

If I am able to receive food and fluids orally, for example, by spoon and straw, I direct that such be offered to me, and shall not be denied simply because of a diagnosis orof a terminal condition or persistent vegetative state.

I,                  , do not wish to be given medically assisted food (nutrition) or fluids.fluids (hydration).

I give the following SPECIAL DIRECTIVES OR LIMITATIONS:  (Comments about tube feedings, breathing machines, cardiopulmonary resuscitation, dialysisdialysis, 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.

_________________________________     __________________________________ Witness                                                           DATE _________________________________      __________________________________ Witness                                                           DATE STATE OF _______________________________      COUNTY OF I, _________________________, a Notary Public of said County, do certify that ________________________________________, as principal, and________________________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.

My commission expires:________________________________________ _________________________________________________________________ Notary Public (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.

STATE OF WEST VIRGINIA MEDICAL POWER OF ATTORNEY The Person I Want to Make Health Care Decisions Forfor Me When I Can’t Make Them for Myself   Dated:

_____________________________ , 20______ I,____________________________________________________, (insert your name and address) 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 successor representative is:

  If my representative is unable, unwillingunwilling, or disqualified to serve, then I appoint: