Bill Text: WV HB4481 | 2020 | Regular Session | Introduced
Bill Title: Relating to health care decisions
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-01-23 - To House Judiciary [HB4481 Detail]
Download: West_Virginia-2020-HB4481-Introduced.html
WEST virginia legislature
2020 regular session
Introduced
House Bill 4481
By Delegate Rohrbach
[Introduced January 23, 2020; Referred to the Committee on 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 health care decisions; definitions, including redefining the definition of “Life-prolonging intervention”; forms of a living will or medical power of attorney or combined medical power of attorney and living will and specific provisions; and interpretation and application of provisions upon the effective date of enactment.
Be it enacted by the Legislature of West Virginia:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-3. Definitions.
For the purposes of this article:
(a) “Actual knowledge” means the possession of
information of the person’s wishes communicated to the health care provider
orally or in writing by the person, the person’s medical power of attorney
representative, the person’s health care surrogate, or other individuals
resulting in the health care provider’s personal cognizance of these wishes.
Constructive notice and other forms of imputed knowledge are not actual
knowledge.
(b) “Adult” means a person who is 18 years of age or
older, an emancipated minor who has been established as such pursuant to the
provisions of §49-4-115 of this code, or a mature minor.
(c) “Advanced nurse practitioner” means a registered
nurse with substantial theoretical knowledge in a specialized area of nursing
practice and proficient clinical utilization of the knowledge in implementing
the nursing process, and who has met the further requirements of the West
Virginia Board of Examiners for registered professional nurses rule, advanced
practice registered nurse,19CSR 7, who has a mutually agreed upon association
in writing with a physician, and has been selected by or assigned to the person
and has primary responsibility for treatment and care of the person.
(d) “Attending physician” means the physician selected by
or assigned to the person who has primary responsibility for treatment and care
of the person and who is a licensed physician. If more than one physician
shares that responsibility, any of those physicians may act as the attending
physician under this article.
(e) “Capable adult” means an adult who is physically and
mentally capable of making health care decisions and who is not considered a
protected person pursuant to the provisions of chapter 44A of this code.
(f) “Close friend” means any adult who has exhibited
significant care and concern for an incapacitated person who is willing and
able to become involved in the incapacitated person’s health care and who has
maintained regular contact with the incapacitated person so as to be familiar
with his or her activities, health, and religious and moral beliefs.
(g) “Death” means a finding made in accordance with
accepted medical standards of either: (1) The irreversible cessation of
circulatory and respiratory functions; or (2) the irreversible cessation of all
functions of the entire brain, including the brain stem.
(h) “Guardian” means a person appointed by a court
pursuant to the provisions of chapter 44A of this code who is
responsible for the personal affairs of a protected person and includes a
limited guardian or a temporary guardian.
(i) “Health care decision” means a decision to give,
withhold, or withdraw informed consent to any type of health care, including,
but not limited to, medical and surgical treatments, including life-prolonging
interventions, psychiatric treatment, nursing care, hospitalization, treatment
in a nursing home or other facility, home health care, and organ or tissue
donation.
(j) “Health care facility” means a facility commonly
known by a wide variety of titles, including, but not limited to, hospital,
psychiatric hospital, medical center, ambulatory health care facility,
physicians’ office and clinic, extended care facility operated in connection
with a hospital, nursing home, a hospital extended care facility operated in
connection with a rehabilitation center, hospice, home health care, and other
facility established to administer health care in its ordinary course of
business or practice.
(k) “Health care provider” means any licensed physician,
dentist, nurse, physician’s assistant, paramedic, psychologist, or other person
providing medical, dental, nursing, psychological or other health care services
of any kind.
(l) “Incapacity” means the inability because of physical
or mental impairment to appreciate the nature and implications of a health care
decision, to make an informed choice regarding the alternatives presented, and
to communicate that choice in an unambiguous manner.
(m) “Life-prolonging intervention” means any medical
procedure or intervention that, when applied to a person, would serve to
artificially prolong the dying process or to maintain the person in a
persistent vegetative state. Life-prolonging intervention includes, among
other things, nutrition and hydration administered intravenously or through a
feeding tube does not include the provision of food and fluids by IV,
feeding tube, or other artificial methods. The term “life-prolonging
intervention” does not include the administration of medication or the
performance of any other medical procedure considered necessary to provide
comfort or to alleviate pain.
(n) “Living will” means a written, witnessed advance
directive governing the withholding or withdrawing of life-prolonging intervention,
voluntarily executed by a person in accordance with the requirements of
§16-30-4 of this code.
(o) “Mature minor” means a person, less than 18 years of
age, who has been determined by a qualified physician, a qualified
psychologist, or an advanced nurse practitioner to have the capacity to make
health care decisions.
(p) “Medical information” or “medical records” means and
includes without restriction any information recorded in any form of medium
that is created or received by a health care provider, health care facility,
health plan, public health authority, employer, life insurer, school, or
university or health care clearinghouse that relates to the past, present or
future physical or mental health of the person, the provision of health care to
the person, or the past, present, or future payment for the provision of health
care to the person.
(q) “Medical power of attorney representative” or “representative”
means a person, 18 years of age or older, appointed by another person to make
health care decisions pursuant to the provisions of §16-30-6 of this
code or similar act of another state and recognized as valid under the laws of
this state.
(r) “Parent” means a person who is another person’s
natural or adoptive mother or father or who has been granted parental rights by
valid court order and whose parental rights have not been terminated by a court
of law.
(s) “Persistent vegetative state” means an
irreversible a chronic state as diagnosed by the attending physician
or a qualified physician in which the person has intact brain stem function
but no higher cortical function and has neither self-awareness or nor
awareness of the surroundings in a learned manner.
(t) “Person” means an individual, a corporation, a
business trust, a trust, a partnership, an association, a government, a
governmental subdivision or agency, or any other legal entity.
(u) “Physician orders for scope of treatment (POST) form”
means a standardized form containing orders by a qualified physician that
details a person’s life-sustaining wishes as provided by §16-30-25 of this
code.
(v) “Principal” means a person who has executed a living
will or medical power of attorney.
(w) “Protected person” means an adult who, pursuant to
the provisions of chapter 44A of this code, has been found by a court, because
of mental impairment, to be unable to receive and evaluate information
effectively or to respond to people, events, and environments to an extent that
the individual lacks the capacity to: (1) Meet the essential requirements for
his or her health, care, safety, habilitation, or therapeutic needs without the
assistance or protection of a guardian; or (2) manage property or financial
affairs to provide for his or her support or for the support of legal
dependents without the assistance or protection of a conservator.
(x) “Qualified physician” means a physician licensed to
practice medicine who has personally examined the person.
(y) “Qualified psychologist” means a psychologist
licensed to practice psychology who has personally examined the person.
(z) “Surrogate decisionmaker” 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.
(aa) “Terminal condition” means an incurable or
irreversible condition as diagnosed by the attending physician or a qualified
physician for which the administration of life-prolonging intervention will
serve only to prolong the dying process.
§16-30-4. Executing a living will or medical power of attorney or combined medical power of attorney and living will.
(a) Any competent adult may execute at any time a living will or medical power of attorney. A living will or medical power of attorney made pursuant to this article shall be: (1) In writing; (2) executed by the principal or by another person in the principal’s presence at the principal’s express direction if the principal is physically unable to do so; (3) dated; (4) signed in the presence of two or more witnesses at least 18 years of age; and (5) signed and attested by such witnesses whose signatures and attestations shall be acknowledged before a notary public as provided in subsection (d) of this section.
(b) In addition, a witness may not be:
(1) The person who signed the living will or medical power of attorney on behalf of and at the direction of the principal;
(2) Related to the principal by blood or marriage;
(3) Entitled to any portion
of the estate of the principal under any will of the principal or codicil
thereto: Provided, That the validity of the living will or medical
power of attorney shall may not be affected when a witness at the
time of witnessing such the living will or medical power of
attorney was unaware of being a named beneficiary of the principal’s will;
(4) Directly financially responsible for principal’s medical care;
(5) The attending physician; or
(6) The principal’s medical power of attorney representative or successor medical power of attorney representative.
(c) The following persons may not serve as a medical power of attorney representative or successor medical power of attorney representative: (1) A treating health care provider of the principal; (2) an employee of a treating health care provider not related to the principal; (3) an operator of a health care facility serving the principal; or (4) any person who is an employee of an operator of a health care facility serving the principal and who is not related to the principal.
(d) It shall be is
the responsibility of the principal or his or her representative to provide for
notification to his or her attending physician and other health care providers
of the existence of the living will or medical power of attorney or a
revocation of the living will or medical power of attorney. An attending
physician or other health care provider, when presented with the living will or
medical power of attorney, or the revocation of a living will or medical power
of attorney, shall make the living will, medical power of attorney or a copy of
either or a revocation of either a part of the principal’s medical records.
(e) At the time of admission to any health care facility, each person shall be advised of the existence and availability of living will and medical power of attorney forms and shall be given assistance in completing such 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 the
invalidity shall may 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
The Kind of Medical Treatment I Want and Don’t Want
If I Have a Terminal Condition or
Am In a Persistent Vegetative State
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
may not be prolonged under the following circumstances:
If I am very sick and not
able to communicate my wishes for myself and (1) 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.)
Oral fluids and nutrition must be offered as tolerated. If I become unable to safely accept oral fluids and nutrition, I desire the following measures to be taken in regard to providing artificially administered fluids and nutrition, for example 1V's or feeding tubes (initial ONE choice below):
I DO WISH to receive food and fluids provided artificially, for example as provided by IV or feeding tube, unless my body becomes incapable of absorbing and processing such, or unless the provision causes complications that worsen my health conditions,
I DO NOT WISH to receive food and fluids provided artificially, for example by IV or feeding tube. I understand that refusal of such food and fluids may hasten or even cause my death.
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
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 18 years of age and am not related to the principal by blood or marriage, entitled to any portion of the estate of the principal to the best of my knowledge under any will of principal or codicil thereto, or directly financially responsible for principal’s medical care. I am not the principal’s attending physician or the principal’s medical power of attorney representative or successor medical power of attorney representative under a medical power of attorney.
_________________________________ __________________________________
Witness DATE
_________________________________ __________________________________
Witness DATE
STATE OF
_______________________________
COUNTY OF
I, _________________________, a Notary Public of said County, do certify that ________________________________________, as principal, and________________________ and ____________________, as witnesses, whose names are signed to the writing above bearing date on the _______________ day of _______, 20____,have this day acknowledged the same before me.
Given under my hand this ______ day of ______, 20__.
My commission expires:________________________________________
_________________________________________________________________
Notary Public
STATE OF WEST VIRGINIA
MEDICAL POWER OF ATTORNEY
The Person I Want to Make Health Care Decisions
For Me When I Can’t Make Them for Myself
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; Please do not insert more than one name.)
The person I choose as my successor representative is: (Please do not insert more than one name)
If my representative is unable, unwilling or disqualified to serve, then I appoint: (Please do not insert more than one name)
______________________________________________________________________
(Insert the name, address, area code and telephone number of the person you wish to designate as your successor representative; )
(Only one name is to be listed on the lines above)
This appointment shall
extend to, but not be limited to, health care decisions relating to medical
treatment, surgical treatment, nursing care, medication, hospitalization, care
and treatment in a nursing home or other facility, and home health care. The
representative appointed by this document is specifically authorized to be
granted access to my medical records and other health information and to act on
my behalf to consent to, refuse or withdraw any and all medical treatment or
diagnostic procedures, or autopsy if my representative determines that I, if able
to do so, would consent to, refuse or withdraw such treatment or procedures. Such
This authority shall include, but not be limited to, decisions regarding
the withholding or withdrawal of life-prolonging interventions.
I 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.)
Oral fluids and nutrition must be offered as tolerated. If I become unable to safely accept oral fluids and nutrition, I desire the following measures to be taken in regard to providing artificially administered fluids and nutrition, for example 1V's or feeding tubes (initial ONE choice below):
_I DO WISH to receive food and fluids provided artificially, for example as provided by IV or feeding tube, unless my body becomes incapable of absorbing and processing such, or unless the provision causes complications that worsen my health conditions,
_I DO NOT WISH to receive food and fluids provided artificially, for example by IV or feeding tube. I understand that refusal of such food and fluids may hasten or even cause my death.
______________________________________________________________________
______________________________________________________________________
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
_______________________________
Signature of the Principal
I did not sign the principal’s signature above. I am at least eighteen years of age and am not related to the principal by blood or marriage. I am not entitled to any portion of the estate of the principal or to the best of my knowledge under any will of the principal or codicil thereto, or legally responsible for the costs of the principal’s medical or other care. I am not the principal’s attending physician, nor am I the representative or successor representative of the principal.
_______________________________ ________________________
Witness: DATE
_______________________________ _________________________
Witness: DATE
_______________________________
STATE OF
_______________________________
COUNTY OF
I, ________________________________, a Notary Public of said
County, do certify that_________________________________________, as principal, and ____________________ and __________________, as witnesses, whose names are signed to the writing above bearing date on the ____________ day of _____________, 20_____, have this day acknowledged the same before me.
Given under my hand this __________ day of _____________, 20____.
My commission expires:______________________________________
_________________________________________________________________
Notary Public
(i) A combined medical
power of attorney and living will may, but need not, be in the following form,
and may include other specific directions not inconsistent with other
provisions of this article. Should any of the other specific directions be held
to be invalid, such the invalidity does not affect other
directions of the combined medical power of attorney and living will which can
be given effect without invalid direction and to this end the directions in the
combined medical power of attorney and living will are severable.
STATE OF WEST VIRGINIA
COMBINED MEDICAL POWER OF ATTORNEY
AND LIVING WILL
The Person I Want to Make Health Care Decisions For Me When I Can’t Make
Them for Myself And The Kind of Medical Treatment I Want and Don’t Want
If I Have a Terminal Condition or Am In a Persistent Vegetative State
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. Please do not insert more than one name.).
If my representative is unable, unwilling or disqualified to serve, then I appoint as my successor representative:
______________________________________________________________________
(Insert the name, address, area code and telephone number of the person you wish to designate as your successor representative. Please do not insert more than one name.).
(Only one name is to be listed on the lines above)
This appointment shall extend to, but not be limited to, health care decisions relating to medical treatment, surgical treatment, nursing care, medication, hospitalization, care and treatment in a nursing home or other facility, and home health care. The representative appointed by this document is specifically authorized to be granted access to my medical records and other health information and to act on my behalf to consent to, refuse or withdraw any and all medical treatment or diagnostic procedures, or autopsy if my representative determines that I, if able to do so, would consent to, refuse or withdraw such treatment or procedures. Such authority shall include, but not be limited to, decisions regarding the withholding or withdrawal of life-prolonging interventions.
I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect the health care decisions that I would make if I were able to do so, and because I also believe that this person will act in my best interest when my wishes are unknown. It is my intent that my family, my physician and all legal authorities be bound by the decisions that are made by the representative appointed by this document, and it is my intent that these decisions should not be the subject of review by any health care provider or administrative or judicial agency.
It is my intent that this document be legally binding and effective and that this document be taken as a formal statement of my desire concerning the method by which any health care decisions should be made on my behalf during any period when I am unable to make such decisions.
In exercising the authority under this medical power of attorney, my representative shall act consistently with my special directives or limitations as stated below.
I am giving the following SPECIAL DIRECTIVES OR LIMITATIONS ON THIS POWER: (Comments about tube feedings, breathing machines, cardiopulmonary resuscitation, dialysis, mental health treatment, funeral arrangements, autopsy, and organ donation may be placed here. My failure to provide special directives or limitations does not mean that I want or refuse certain treatments).
(1) If I am very sick and
not able to communicate my wishes for myself and (1) I am certified by one
physician who has personally examined me, to have a terminal condition, or
(2) I am certified by two physicians, each of whom has personally examined me,
to be in a persistent vegetative state (I am unconscious and am neither
aware of my environment nor able to interact with others,) I direct that
life-prolonging medical intervention that would serve solely to prolong the
dying process or maintain me in a persistent vegetative state be withheld or
withdrawn. I want to be allowed to die naturally and only be given medications
or other medical procedures necessary to keep me comfortable. I want to receive
as much medication as is necessary to alleviate my pain.
(2).
Other directives:________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
_____________________________
Signature of the Principal
I did not sign the principal's signature above. I am at least 18 years of age and am not related to the principal by blood or marriage. I am not entitled to any portion of the estate of the principal or to the best of my knowledge under any will of the principal or codicil thereto, or legally responsible for the costs of the principal's medical or other care. I am not the principal's attending physician, nor am I the representative or successor representative of the principal.
Witness _____________________ DATE ___________
Witness _____________________ DATE ___________
STATE OF _________________________
COUNTY OF _________________________________
I, ______________________, a Notary Public of said county, do certify that_____________________, as principal, and ____________________ and ____________________, as witnesses, whose names are signed to the writing above bearing date on the _____ day of ______________, 20___, have this day acknowledged the same before me.
Given under my hand this _____ day of _________________, 20___.
My commission expires:_______________________________
________________________________
Signature of Notary Public
(j) Living will or medical power of attorney forms executed pursuant to §16-30-3 and §16-30-4 of this code, before the effective date of the amendments to these sections, are not affected by these amendments, nor invalidated by the amendments and shall be interpreted with the former definition of “life-prolonging intervention”. Living will forms executed after the effective date of these amendments shall be interpreted under the new definition of “life-prolonging intervention” even though the living will form has not been updated to show the various choices to be initialed. Patients who have signed living will forms after the effective date of these amendments, by default or in the absence of a specific option not to receive them having been initialed, may receive artificially provided food and fluids.
NOTE: The purpose of this bill is to redefine certain definitions, including the definition of “Life-prolonging intervention”. The forms of a living will or medical power of attorney or combined medical power of attorney and living will, with specific provisions are changed. And, an interpretation and application of provisions upon the effective date of enactment is stated.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
