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  • ELDER LAW: Legal, Financial, and Health-Care Issues

    Part II. Planning for Incapacity: Health Care Issues

    By: John Legaré Williams, Esq. ©2013 All Rights Reserved

    September 11, 2013

     

    The Williams Law Firm, P.A.

    www.TrustWilliams.com

    1201 North Orange Street, Suite 600

    Wilmington, DE 19801

    (302)575-0873

     


     

    PLANNING FOR INCAPACITY: HEALTH CARE ISSUES

     

    I.                   Introduction

    A.    Following a massive heart attack, a thirty-six year old woman lapses into a coma due to lack of oxygen. Although she is still alive due to artificial nutrition, hydration, and respiration, she is diagnosed as in a persistent vegetative state. While she is awake, she remains unaware of family and friends by her bedside. As time goes on, her husband believes that it is best to remove life support, but her parents provide vociferous opposition, wanting to keep their daughter alive at all costs. After a drawn-out court struggle and national media attention centered on this poor woman, her feeding tube was removed and she passed away after over five years in a vegetative state.

    B.     Most of you remember this story about Terri Schiavo, one of the most visible recent cases regarding interpreting an individual’s medical wishes when they aren’t able to clarify themselves. With no written Advance Health Care Directive, there was no definite answer as to what Terri would have wanted.

    C.     A vegetative state is when an individual is actually awake, but they are unaware of their surroundings. As time goes on, it becomes less and less likely that this will end, and it is referred to as a “persistent vegetative state” where the individual is highly unlikely to ever regain higher mental function. This differs from a coma in that comatose patients are not awake as well as being not aware. Dr. Ira Byock of Dartmouth-Hitchcock Medical Center in Lebanon, NH has said that it can cost up to $10,000 daily to keep patients alive under this intensive care.

    D.    Well-written and executed Advance Health Care Directives can help avoid this problem, saving legal fees, emotional turmoil, and unnecessary conflict during trying times.

    E.     An Advance Health Care Directive is a document that an individual executes to determine how medical decisions will be made for them in the event that they are incapacitated. While many individuals will create a broad Advance Health Care Directive, there are a few different types that should be distinguished.

    1.      Living Will – Rather than appointing a surrogate to make decisions, a Living Will is designed to specify the treatments that can and cannot be used in the event that the declarant is incapacitated.

    2.      Health Care Power of Attorney – Unlike a Living Will, a Health Care Power of Attorney designates a surrogate that will have the power to make medical decisions for the declarant if they are unable to do so. While this requires having a surrogate that the declarant trusts, it allows greater flexibility.

    3.      Do Not Resuscitate (“DNR”) – A DNR is similar to a Living Will in that is asserts a specific type of action. Usually shown emergency personnel or nurses, this orders that the declarant is not to be given CPR or life sustaining treatment.

    F.      There remains an issue of the mental requirements while executing any of these documents. While the only statutory requirement in Delaware is for the declarant to be a “mentally competent” adult, healthy people may not be able to accurately foresee what it will be like for them to be incapable of making decisions for themselves. Because of this, it is necessary that declarants be completely aware of what they are signing and the consequences of what they are doing.

    II.                Advance Directives: DE §16-2505

    A.    Also known as “Living Will”, “Power of Attorney for Healthcare” or some variation of “Advance Health Care Directive”, these documents are written and executed so that an individual can determine what medical decisions they would like made and who they would like to make those decisions in the event of their incapacitation.

    B.     Many studies show that Advance Directives are underutilized: while surveys show that as high as 95% of Americans would not want to prolong their lives through aggressive medical treatment, many incapacitated individuals are kept alive through these treatments. Aggressive treatments create a heavy financial burden on the patient’s family.

    C.     Delaware Code defines an Advance Health Care Directive as “an individual instruction or a power of attorney for health care, or both[1].

    D.    An Advance Health Care Directive provides instructions on making health care decisions, which the Delaware Code defines as “a decision made by an individual or the individual's agent, surrogate or guardian regarding the individual's health care, including:

    1.      Selection and discharge of health-care providers and institutions;

    2.      Acceptance or refusal of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and

    3.      Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care.”[2]

    E.     Delaware Code also provides a sample Advance Health Care Directive.[3] The sample has multiple parts, which include:

    1.      Designation of a Surrogate, who will make health care decisions for the patient in the event that the patient is incapacitated;

    2.      Specific instructions regarding medical treatment, including the measures taken to keep the patient alive;

    3.      Whether the patient would like to be an organ or tissue donor following their death; and

    4.      Designation of the physician who has primary responsibility for the patient’s medical care.

    F.      One of the major sections of any Advance Health Care Directive is the decision of whether or not artificial hydration or nutrition through a conduit should be used to keep a patient alive. Patients can refuse any such treatment, give a certain time period for this treatment, or request that this treatment be continued indefinitely.

    G.    The Committee on Law and the Elderly of the Delaware Bar Association has also developed an Advance Health Care Directive, which has been approved for use by the Delaware Attorney General. This form is slightly less comprehensive than the statutory form.[4]

    H.    Delaware Code also allows for the modification of the Advance Health Care Directive to suit the needs of individual patients.[5]

    III.             Requirements of Advance Health Care Directives

    A.    All Directives made prior to need for treatment must be:[6]

    1.      In writing;

    2.      Signed by either the declarant or by another individual, in the declarant’s presence and at the declarant’s express direction;

    3.      Dated;

    4.      Signed in the presence to at least 2 adult witnesses who are not related to the declarant, are not in the declarant’s will, do not have any financial interest or responsibility for declarant’s medical care, and do not have any claims against the declarant’s estate.

    B.     Delaware’s requirements for witnessing an Advance Directive are much more stringent than other states. Before an individual witnesses an Advance Directive, one should be sure that they are qualified to do so under Delaware Law.

    C.     These directives go into effect when the declarant lacks capacity to make their own decision, as determined by the designated physician. This could be due to unconsciousness, mental incapacity, coma, or any other condition that renders the patient unable to effectively consider their options and communicate their health care decisions.

    D.    Stipulations regarding the application or withholding of life-sustaining treatment, such as artificially administered hydration an nutrition, go into effect when the declarant lacks capacity and has a qualifying condition, which means either or both of the following:

    1.      The condition has lasted for at least four weeks and there is reasonable medical certainty of total and irreversible loss of consciousness and ability to interact with the environment.

    2.      The condition has no reasonable medical expectation of recovery and will result in death, regardless of measures used to sustain life.

    E.     The directive ceases to be effective when the declarant has recovered the capacity to make his/her own decisions.

    IV.             Issues Regarding HIPAA

    A.    The Health Insurance Portability and Accountability Act of 1996 restricts health care providers and professionals from releasing medical information about a patient.

    B.     HIPAA can pose problems for people designated to make decision by an Advance Health Care Directive because they need this information to make an informed decision.

    C.     It is important that the declarant provide their physician with a HIPAA authorization so that medical information can be released. Such authorization must include:[7]

    1.      A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion;

    2.      The name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure;

    3.      The name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure;

    4.      An expiration date (for an Advanced Health Care Directive, when the time of need is unknown, it is possible to write that there is no expiration);

    5.      A statement that the declarant can revoke their authorization at any time, including how they would revoke their authorization.

    D.    Alternatively, an Advance Directive can contain a provision that specifically references HIPAA and authorizes health care providers to release medical information to their Surrogate in the event that they need to make decisions for the patient. To be valid, this must also meet the above requirements by saying what information should be released, who needs to request the release of that information, and who the information should be released to.

    E.     In addition to HIPAA, disclosure of genetic information may also be relevant to determine the proper treatment. Such disclosure is restricted by both Federal Law (Genetic Information Nondisclosure Act of 2008) and Delaware State Law (§16-12), While this is mostly to prevent disclosure for insurance and employment discrimination, it may be advisable to have written consent for a Surrogate to access this information.

    V.                Differences in Nearby States

    A.    Most states have provisions in their Advance Health Care Directive statutes that recognize the validity of Directives from other states, so long as they are validly executed and the decision made would not conflict with the laws of the state.[8]

    B.     Because many Delaware residents work or spend a large amount of time in surrounding states, such as Pennsylvania, New Jersey, and Maryland, it is important to know the differences between the laws of these states.

    C.     Pennsylvania

    1.      Pennsylvania requires that a condition be terminal or the declarant be permanently unconscious for the decision making power of a personal representative from an Advance Health Care Directive to take effect.

    2.      Some people in Pennsylvania have a Health Care Power of Attorney, which has similar requirements to Delaware for a surrogate to make decisions. The Health Care Power of Attorney is a type of Advance Health Care Directive which designates a surrogate to make decisions in the patient’s best interest.

    3.      Pennsylvania statue allows attending physicians to write out-of-hospital DNR’s with their patients, instructing EMS to withhold CPR.[9]

    D.    B.  to withhold CPR.or other life- elaware for a surrogate to make decisions. ormation can be released.nt.

    D.    ons.s used to sustainNew Jersey

    1.      New New Jersey directives allow an Advanced Health Care Directive to define what a “terminal” disease means in terms of life expectancy.

    2.      While New Jersey also requires two witnesses for Advance Health Care Directives, the only requirement is that the designated representative cannot be a witness.

    3.      New Jersey has developed a Practitioner Orders for Life-Sustaining Treatment (POLST), which complements an Advance Directive and states the types of treatment that the declarant does and does not want to receive. This can also be used as a DNR.

    E.     MarMMAfrgMaryland

    1.      Maryland has a required form for Medical Orders for Life-Sustaining Treatment. Similar to a DNR, this instructs emergency personnel to provide comfort care, rather than resuscitation.

    2.      Maryland emergency care only recognizes the MOLST as a do-not-resuscitate order, so clients who spend a significant amount of time in Maryland may want a MOLST on file.

    3.      Maryland also provides a postmortem directive that is separate from the Advance Health Care Directive. This contains instructions for organ and body donation, as well as funeral arrangements.

    4.      Maryland requires that Advance Health Care Directives be witnesses by 2 persons who are not the designated decision maker, and one of whom will not administer or benefit from the declarant’s estate. This is different from Delaware in that a medical provider could be a witness, and one of the witnesses could be in the declarant’s estate.

    5.      Maryland also has a state registry, where Advance Health Care Directives can be registered. While not required for the validity of the Directive, this provides 24/7 electronic access to any health care provider treating a declarant. The State also makes sure that every Directive submitted is facially valid.

    VI.             Surrogates

    A.    Naming Surrogates

    1.      Delaware code defines a Surrogate as “an adult individual or individuals who (1) have capacity; (2) are reasonably available; (3) are willing to make health care decisions, including decisions to initiate, refuse to initiate, continue or discontinue the use of a life sustaining procedure on behalf of a patient who lacks capacity; and (4) are identified by the attending physician in accordance with this chapter as the person or persons who are to make those decision”.[10]

    2.      Usually, a Surrogate is designated in an Advance Directive. However, a patient can orally designate a Surrogate in front of their health-care provider, and the provider must write the surrogate in the patient’s file and have a witness sign.

    3.      In the absence of any prior designation, the Surrogate for a patient who is incapable of making their own decisions will be (in priority order:

    a.       The spouse (unless a divorce petition has been filed);

    b.      An adult child;

    c.       A parent;

    d.      An adult sibling;

    e.       An adult grandchild;

    f.       An adult niece or nephew;

    g.      An adult who has “exhibited special care and concern for the patient, is familiar with the patient’s personal values, and who is reasonably available”, as appointed by the Court of Chancery.

    4.      Decisions by a Surrogate should be made in a way that best reflects the beliefs, values, and desires of the patient. If the Surrogate is unsure of what the patient would want, then the Surrogate should make decisions that are in the best interest of the patient.

    VII.          Do Not Resuscitate Orders (DNR) and MOLST

    A.    A Do Not Resuscitate Order instructs that emergency personnel do not give CPR to a patient who has signed the order. This can be due to preexisting medical conditions, religious beliefs, or a variety of other personal preferences.

    B.     The Delaware Department of Health and Social Services recognizes a Medical Orders for Life-Sustaining Treatment form (MOLST), which the Department has approved. The Do Not Resuscitate Order is a part of the MOLST form.

    C.     In order for EMS to properly identify the wishes that an individual has expressed in an MOLST, the patient must have their MOLST identified by either the form itself, a bracelet, or a wallet card.

    D.    Pregnant women cannot validly have a MOLST that declines life-sustaining measures.

    E.     The recent adoption of a MOLST in Delaware and neighboring jurisdictions signifies a recent movement to change decision-making in healthcare.

    F.      States have recently begun creating registries (similar to Maryland) where these can be stored to facilitate faster access by emergency personnel.

    G.    The MOLST is not as detailed as the Advance Directive. The standardization may be useful for emergency care, but clients should still execute an Advance Directive to give more detailed instructions on their preferences and surrogates.

    VIII.       Default Organ Donation Provisions

    A.    In Delaware, individuals are asked about organ donation when applying for or renewing a driver’s license. This is an opt-in system, where organs will only be donated if the individual consented.

    B.     Pennsylvania, Maryland, and New Jersey all have similar systems, where people can either opt-in when their driver’s licenses are renewed, or they can register online as donors (subject to a few requirements).

    C.     Opt-in systems historically have relatively low participation rates. Because organ donation can save lives and many more people are willing to donate organs than will take the time to opt-in to a program, it is important to include this in an Advance Directive.

    DELAWARE STATUTE

    § 2501. Definitions.

    (a) "Advance health-care directive" shall mean an individual instruction or a power of attorney for health care, or both.

    (b) "Agent" shall mean an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power.

    (c) "Artificial nutrition and hydration" means supplying food and water through a conduit, such as a tube or intravenous line where the recipient is not required to chew or swallow voluntarily, including, but not limited to, nasogastric tubes, gastrostomies, jejunostomies and intravenous infusions. Artificial nutrition and hydration does not include assisted feeding, such as spoon or bottle feeding.

    (d) "Capacity" shall mean an individual's ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health-care decision.

    (e) "Declarant" shall mean a person who executes an advance health care directive.

    (f) "Guardian" shall mean a judicially appointed guardian or conservator having authority to make health-care decisions for an individual.

    (g) "Health care" shall mean any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition.

    (h) "Health-care decision" shall mean a decision made by an individual or the individual's agent, surrogate or guardian regarding the individual's health care, including:

    (1) Selection and discharge of health-care providers and institutions;

    (2) Acceptance or refusal of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and

    (3) Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care.

    (i) "Health-care institution" means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business.

    (j) "Health-care provider" means an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.

    (k) "Individual instruction" means an individual's direction concerning a health-care decision for the individual.

    (l) "Life-sustaining procedure" means:

    (1) Any medical procedure, treatment or intervention that:

    a. Utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function; and

    b. Is of such a nature as to afford a patient no reasonable expectation of recovery from a terminal condition or permanent unconsciousness.

    (2) Procedures which can include, but are not limited to, assisted ventilation, renal dialysis, surgical procedures, blood transfusions and the administration of drugs, antibiotics and artificial nutrition and hydration.

    (m) "Medically ineffective treatment" means that, to a reasonable degree of medical certainty, a medical procedure will not:

    (1) Prevent or reduce the deterioration of the health of an individual; or

    (2) Prevent the impending death of an individual.

    (n) "Person" means an individual, corporation, statutory trust, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency or instrumentality or any other legal or commercial entity.

    (o) "Physician" means an individual authorized to practice medicine under Chapter 17 of Title 24.

    (p) "Power of attorney for health care" means the designation of an agent to make health-care decisions for the individual granting the power.

    (q) "Primary physician" or "attending physician" shall mean a physician designated by an individual or the individual's agent, surrogate or guardian to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.

    (r) "Qualifying condition" means the existence of 1 or more of the following conditions in the patient, certified in writing in the patient's medical record by the attending physician and by at least 1 other physician who, when the condition in question is "permanently unconscious" shall be a board-certified neurologist and/or neurosurgeon:

    (1) "Permanently unconscious" or "permanent unconsciousness" means a medical condition that has existed for at least 4 weeks and that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma.

    (2) "Terminal condition" means any disease, illness or condition sustained by any human being for which there is no reasonable medical expectation of recovery and which, as a medical probability, will result in the death of such human being regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life or the life processes.

    (s) "Reasonably available" shall mean readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs.

    (t) "Supervising health-care provider" shall mean the primary physician, or if there is no primary physician or the primary physician is not reasonably available, the health-care provider who has undertaken primary responsibility for an individual's health care.

    (u) "Surrogate" means an adult individual or individuals who (1) have capacity; (2) are reasonably available; (3) are willing to make health care decisions, including decisions to initiate, refuse to initiate, continue or discontinue the use of a life sustaining procedure on behalf of a patient who lacks capacity; and (4) are identified by the attending physician in accordance with this chapter as the person or persons who are to make those decisions in accordance with this chapter.

    § 2502. Right of self-determination.

    An individual, legally adult, who is mentally competent, has the right to refuse medical or surgical treatment if such refusal is not contrary to existing public health laws.

    § 2503. Advance health-care directives.

    (a) Subject to the limitations of this chapter, an adult who is mentally competent may:

    (1) Give an individual instruction. The instruction may be limited to take effect only if a specified condition arises; and/or

    (2) Execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity.

    (b)(1) An advance health-care directive must be:

    a. In writing;

    b. Signed by the declarant or by another person in the declarant's presence and at the declarant's expressed direction;

    c. Dated;

    d. Signed in the presence of 2 or more adult witnesses neither of whom:

    1. Is related to the declarant by blood, marriage or adoption;

    2. Is entitled to any portion of the estate of the declarant under any will or trust of the declarant or codicil thereto then existing nor, at the time of the executing of the power of attorney for health care, is entitled thereto by operation of law then existing;

    3. Has, at the time of the execution of the advance health care directive, a present or inchoate claim against any portion of the estate of the declarant;

    4. Has a direct financial responsibility for the declarant's medical care; or

    5. Has a controlling interest in or is an operator or an employee of a health care institution at which the declarant is a patient or resident.

    (2) Each witness to the advance health-care directive shall state in writing that he or she is not prohibited under this section from being a witness.

    (c) An advance health-care directive shall become effective only upon a determination that the declarant lacks capacity, and when the advance health-care directive is to be applied to the providing, withholding or withdrawal of a life-sustaining procedure, the advance health-care directive shall become effective only upon a determination that the declarant lacks capacity and has a qualifying condition.

    (d) An advance health-care directive ceases to be effective upon a determination that the declarant has recovered capacity.

    (e) A determination that an individual lacks or has recovered capacity that affects an individual instruction or the authority of an agent must be made by the primary physician or other physician(s) as specified in a written health-care directive; however, a power of attorney for health care may include a provision accommodating an individual's religious or moral beliefs. That provision may designate a person other than a physician to certify in a notarized document that the individual lacks or has recovered capacity.

    (f) An agent shall make a health-care decision to treat, withdraw or withhold treatment on behalf of the patient after consultation with the attending physician or with the person other than a physician designated pursuant to subsection (e) of this section, and in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. If the patient's instructions or wishes are not known or clearly applicable, the agent's decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent that the agent knows or is able to determine, the agent's decision is to take into account, including, but not limited to, the following factors if applicable:

    (1) The patient's personal, philosophical, religious and ethical values;

    (2) The patient's likelihood of regaining decision making capacity;

    (3) The patient's likelihood of death;

    (4) The treatment's burdens on and benefits to the patient; and

    (5) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care providers or religious leaders.

    If the agent is unable to determine what the patient would have done or intended under the circumstances, the agent's decision shall be made in the best interest of the patient. To the extent the agent knows and is able to determine, the agent's decision is to take into account, including, but not limited to, the factors, if applicable, stated in this subsection.

    (g) A health-care decision made by an agent for a principal is effective without judicial approval.

    (h) Unless related to the principal by blood, marriage or adoption, an agent may not have a controlling interest in or be an operator or employee of a residential long-term health-care institution at which the principal is receiving care.

    (i) A written advance health-care directive may include the individual's nomination of a guardian of the person.

    (j) A life-sustaining procedure may not be withheld or withdrawn from a patient known to be pregnant, so long as it is probable that the fetus will develop to be viable outside the uterus with the continued application of a life-sustaining procedure.

    § 2504. Revocation of advance health-care directive.

    (a) An individual who is mentally competent may revoke all or part of an advance health-care directive:

    (1) By a signed writing; or

    (2) In any manner that communicates an intent to revoke done in the presence of 2 competent persons, 1 of whom is a health care provider.

    (b) Any revocation that is not in writing shall be memorialized in writing and signed and dated by both witnesses. This record shall be made a part of the medical record.

    (c) Any person, including, but not limited to, a health care provider, agent or guardian, who is informed of a revocation shall immediately communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care.

    (d) A decree of annulment, divorce, dissolution of marriage or a filing of a petition for divorce revokes a previous designation of a spouse as an agent unless otherwise specified in the decree or in a power of attorney for health care.

    (e) An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict.

    (f) The initiation of emergency treatment shall be presumed to represent a suspension of an advance health-care directive while receiving such emergency treatment.

    § 2506. Decisions by guardian.

    A guardian shall comply with the adult disabled person's individual instructions and may not revoke the adult disabled person's advance health-care directive unless the appointing court expressly so authorizes. Nothing in this chapter shall limit the jurisdiction of the Court of Chancery over the person and property of a disabled person.

    § 2507. Surrogates.

    (a) A surrogate may make a health care decision to treat, withdraw or withhold treatment for an adult patient if the patient has been determined by the attending physician to lack capacity and there is no agent or guardian, or if the directive does not address the specific issue. This determination shall be confirmed in writing in the patient's medical record by the attending physician. Without this determination and confirmation, the patient is presumed to have capacity and may give or revoke an advance health care directive or disqualify a surrogate.

    (b)(1) A mentally competent patient may designate any individual to act as a surrogate by personally informing the supervising health-care provider in the presence of a witness. The designated surrogate may not act as a witness. The designation of the surrogate shall be confirmed in writing in the patient's medical record by the supervising health-care provider and signed by the witness.

    (2) In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in the descending order of priority, may act, when permitted by this section, as a surrogate and shall be recognized as such by the supervising health-care provider:

    a. The spouse, unless a petition for divorce has been filed;

    b. An adult child;

    c. A parent;

    d. An adult sibling;

    e. An adult grandchild;

    f. An adult niece or nephew.

    Individuals specified in this subsection are disqualified from acting as a surrogate if the patient has filed a petition for a Protection From Abuse order against the individual or if the individual is the subject of a civil or criminal order prohibiting contact with the patient.

    (3) If none of the individuals eligible to act as a surrogate under subsection (b) of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values and who is reasonably available may make health care decisions to treat, withdraw or withhold treatment on behalf of the patient if appointed as a guardian for that purpose by the Court of Chancery.

    (4) A supervising health-care provider may require an individual claiming the right to act as a surrogate for a patient to provide a written declaration under the penalty of perjury stating facts and circumstances sufficient to establish the claimed authority.

    (5) A mentally competent patient may at any time disqualify a member of the patient's family from acting as the patient's surrogate by a signed writing or by personally informing the health-care provider of the disqualification.

    (6) A surrogate may make a decision to provide, withhold or withdraw a life-sustaining procedure if the patient has a qualifying condition documented in writing with its nature and cause, if known, in the patient's medical record by the attending physician.

    (7) A surrogate's decision on behalf of the patient to treat, withdraw or withhold treatment shall be made according to the following paragraphs and otherwise meet the requirements of this chapter:

    a. Decisions shall be made in consultation with the attending physician.

    b.1. The surrogate shall make a health-care decision to treat, withdraw or withhold treatment in accordance with the patient's individual instructions, if any, and other wishes to the extent known by the surrogate.

    2. If the patient's instructions or wishes are not known or clearly applicable, the surrogate's decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent the surrogate knows or is able to determine, the surrogate's decision is to take into account, including, but not limited to, the following factors if applicable:

    i. The patient's personal, philosophical, religious and ethical values;

    ii. The patient's likelihood of regaining decision making capacity;

    iii. The patient's likelihood of death;

    iv. The treatment's burdens on and benefits to the patient;

    v. Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care providers or religious leaders.

    3. If the surrogate is unable to determine what the patient would have done or intended under the circumstances, the surrogate's decision shall be made in the best interest of the patient. To the extent the surrogate knows and is able to determine, the surrogate's decision is to take into account, including, but not limited to, the factors, if applicable, stated in subsection (b)(7)b.2. of this section.

    (8) In the event an individual specified in subsection (b)(2) of this section claims that the individual has not been recognized or consulted as a surrogate or if persons with equal decision making priority under subsection (b)(2) of this section cannot agree who shall be a surrogate or disagree about a health-care decision, and a patient who lacks capacity is receiving care in a health-care institution, the attending physician or an individual specified in subsection (b)(2) of this section may refer the case to an appropriate committee of the health-care institution for a recommendation in compliance with this chapter, and the attending physician may act in accordance with the recommendation of the committee or transfer the patient in accordance with the provisions of § 2508(g) of this title. A physician who acts in accordance with the recommendation of the committee is not subject to civil or criminal liability or to discipline for unprofessional conduct for any claim based on lack of consent or authorization for the action.;

    § 2508. Obligations of health-care provider.

    (a) Before implementing a health-care decision made for a patient, a supervising health-care provider, if possible, shall promptly communicate to the patient the decision made and the identity of the person making the decision. The decision of an agent or surrogate does not apply if the patient objects to the decision to remove life-sustaining treatment, providing that the objection is (1) by a signed writing or (2) in any manner that communicates in the presence of 2 competent persons, 1 of whom is a physician.

    (b) A supervising health-care provider who knows of the existence of an advance health-care directive or a revocation of an advance health-care directive shall promptly record its existence in the patient's health-care record and, if it is in writing, shall request a copy and, if it is not in writing, shall request a copy of the witness statement, and shall arrange for its maintenance in the health-care record.

    (c) A primary physician who makes or is informed of a determination that a patient lacks or has recovered capacity or that another condition exists which affects an individual instruction or the authority of an agent, surrogate or guardian, shall promptly record the determination in the patient's health-care record and communicate the determination to the patient, if possible, and to any person then authorized to make health-care decisions for the patient.

    (d) Except as provided in subsections (e) and (f) of this section, a health-care provider or institution providing care to a patient shall:

    (1) Comply with an individual instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health-care decisions for the patient; and

    (2) In the absence of an individual instruction, comply with a health-care decision for the patient made by a person then authorized to make health-care decisions for the patient to the extent the agent or surrogate is permitted by this chapter.

    (e) A health-care provider may decline to comply with an individual instruction or health-care decision for reasons of conscience. A health-care institution may decline to comply with an individual instruction or health-care decision if the instruction or decision is contrary to a written policy of the institution which is based on reasons of conscience and if the policy was communicated to the patient or to a person then authorized to make health-care decisions for the patient.

    (f) A health-care provider or institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective treatment or health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.

    (g) A health-care provider or institution that declines to comply with an individual instruction or health-care decision shall:

    (1) Promptly so inform the patient, if possible, and any person then authorized to make health-care decisions for the patient;

    (2) Provide continuing care, including continuing life sustaining care, to the patient until a transfer can be effected; and

    (3) Not impede the transfer of the patient to another health-care provider or institution identified by the patient, the patient's agent or the patient's surrogate.

    § 2509. Health-care information.

    (a) Unless otherwise specified in an advance health-care directive, a person then authorized to make health-care decisions for a patient has the same rights as the patient to request, receive, examine, copy and consent to the disclosure of medical or any other health-care information.

    (b) Unless otherwise specified in an advance health-care directive or court order, an agent appointed by a valid advance health-care directive under this chapter, a surrogate determined and confirmed under § 2507 of this title or a guardian of the person of a minor or adult appointed pursuant to a court order shall be authorized as a "personal representative" with full authority and standing thereof as provided in the Health Insurance Portability and Accountability Act of 1996 [P.L. 104-191], its regulations and the standards issued by the Secretary of the United States Department of Health and Social Services.

    § 2510. Immunities.

    (a) A health-care provider or institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for:

    (1) Complying with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care;

    (2) Declining to comply with a health-care decision of a person based on a belief that the person then lacked authority;

    (3) Complying with an advance health-care directive and assuming that the directive was valid when made and has not been revoked or terminated;

    (4) Providing life-sustaining treatment in an emergency situation when the existence of a health care directive is unknown; or

    (5) Declining to comply with a health care decision or advance health-care directive because the instruction is contrary to the conscience or good faith medical judgment of the health care provider or the written policies of the institution.

    (b) An individual acting as agent or surrogate under this chapter is not subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith.

    § 2511. Safeguards.

    (a) Anyone who has good reason to believe that the withdrawal or withholding of health care in a particular case: (1) Is contrary to the most recent expressed wishes of a declarant; (2) is being proposed pursuant to an advance health-care directive that has been falsified, forged or coerced; or (3) is being considered without the benefit of a revocation which has been unlawfully concealed, destroyed, altered or cancelled; may petition the Court of Chancery for appointment of a guardian for such declarant.

    (b) The Division of Services for Aging and Adults with Physical Disabilities and the Public Guardian shall have oversight over any advance health-care directive executed by a resident of a sanatorium, rest home, nursing home, boarding home or related institution as the same is defined in § 1102 of this title. Such advance health-care directive shall have no force nor effect if the declarant is a resident of a sanatorium, rest home, nursing home, boarding home or related institution at the time the advance health-care directive is executed unless 1 of the witnesses is a person designated as a patient advocate or ombudsman by either the Division of Services for Aging and Adults with Physical Disabilities or the Public Guardian. The patient advocate or ombudsperson must have the qualifications required of other witnesses under this chapter except as provided in § 2508 of this title.

    § 2512. Assumptions and presumptions.

    (a) Neither the execution of an advance health-care directive under this chapter nor the fact that health care is withheld from a patient in accordance therewith shall, for any purpose, constitute a suicide.

    (b) The making of an advance health-care directive pursuant to this chapter shall not restrict, inhibit nor impair in any manner the sale, procurement or issuance of any policy of life insurance, nor shall it be deemed or presumed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of health care from an insured patient, notwithstanding any term of the policy to the contrary.

    (c) No physician, health facility or other health care provider, nor any health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan or nonprofit hospital service plan, shall require any person to execute an advance health-care directive as a condition to being insured, or for receiving health care services, nor shall the signing of an advance health-care directive be a bar, except as provided in § 2508 of this title.

    § 2513. Penalties.

    (a) Whoever threatens directly or indirectly, coerces or intimidates any person to execute a declaration directing the withholding or withdrawal of maintenance medical treatment shall be guilty of a misdemeanor and upon conviction shall be fined not less than $500 nor more than $1,000, be imprisoned not less than 30 days nor more than 90 days, or both.

    (b) Whoever knowingly conceals, destroys, falsifies or forges a document with intent to create the false impression that another person has directed that maintenance medical treatment be utilized for the prolongation of that person's life is guilty of a class C felony.

    (c) The Superior Court shall have jurisdiction over all offenses under this chapter.

    § 2514. Capacity.

    (a) This chapter does not affect the right of an individual to make health-care decisions while having capacity to do so.

    (b) An individual is presumed to have capacity to make a health-care decision and to give or revoke an advance health-care directive.

    § 2515. Accommodation.

    Notwithstanding this chapter, an individual who elects to have treatment by spiritual means in lieu of medical or surgical treatment shall not be compelled to submit to medical or surgical treatment.

    § 2516. Effect of copy.

    A copy of an advance health-care directive or revocation of an advance health-care directive, has the same effect as the original.

    § 2517. Recognition of advance directives executed in other states.

    An advance directive or similar health-care declaration validly executed under the laws of another state in compliance with the laws of that state or of this State is valid for purposes of and subject to the limitations of this chapter.

    § 2518. Effect on prior declarations and directives.

    Nothing in this chapter shall be construed to modify or affect the terms of any declaration, appointment of agent or durable power of attorney validly executed prior to June 26, 1996, which grants the authority for medical treatment or directs the withholding or withdrawal of medical treatment, except that a prior declaration shall not be interpreted to allow the withdrawal or withholding of artificial nutrition or hydration unless that desire is specifically stated in that directive. If withdrawal or withholding of artificial nutrition or hydration is not specifically addressed in a prior declaration, a health care provider shall comply with a decision regarding withdrawal or withholding of artificial nutrition or hydration for the patient made by a person then authorized to make health-care decisions for the patient to the extent the agent or surrogate is permitted by this chapter. Nothing in this chapter shall be construed to limit the use of any previous living will forms conforming to law or any other form which meets the requirements of this chapter.

     


     

                                                                                                 JANE DOE

                      DELAWARE POWER OF ATTORNEY FOR HEALTH CARE

     

    EXPLANATION

     

          You have the right to give instructions about your own health care.  You also have the right to name someone else to make health-care decisions for you.  This form lets you do either or both of these things.  It also lets you express your wishes regarding anatomical gifts and the designation of your primary physician.  If you use this form, you may complete or modify all or any part of it.  You are free to use a different form.

     

          Part 1 of this form is a power of attorney for health care.  Part 1 lets you name another individual as agent to make health-care decisions for you if you become incapable of making your own decisions.  You may also name an alternate agent to act for you if your first choice is not willing, able or reasonably available to make decisions for you.  Unless related to you, an agent may not have a controlling interest in or be an operator or employee of a residential long-term health-care institution at which you are receiving care.

     

          If you do not have a qualifying condition (terminal illness/injury or permanent unconsciousness), your agent may make all health-care decisions for you except for decisions providing, withholding or withdrawing of a life sustaining procedure.  Unless you limit the agent’s authority, your agent will have the right to:

     

          (a)  Consent or refuse consent to any care, treatment, service or procedure to maintain, diagnose or otherwise affect a physical or mental condition unless it’s a life-sustaining procedure or otherwise required by law.

     

          (b)  Select or discharge health-care providers and health-care institutions;

     

          If you have a qualifying condition, your agent may make all health-care decisions for you, including, but not limited to:

     

    (c)     The decisions listed in (a) and (b).

     

    (d)  Consent or refuse consent to life sustaining procedures, such as, but not limited to, cardiopulmonary resuscitation and orders not to resuscitate.

    (e)  Direct the providing, withholding or withdrawal of artificial nutrition and hydration and all other forms of health care.

     

    Part 2 of this form lets you give specific instructions about any aspect of your health care.  Choices are provided for you to express your wishes regarding the provision, withholding or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration as well as the provision of pain relief.  Space is also provided for you to add to the choices you have made or for you to write out any additional instructions for other than end of life decisions.

     

    Part 3 of this form lets you express an intention to donate your bodily organs and tissues following your death.

     

    Part 4 of this form lets you designate a physician to have primary responsibility for your health care.

     

    After completing this form, sign and date the form at the end.  It is required that 2 other individuals sign as witnesses. Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care and to any health-care agents you have named.  You should talk to the person you have named as agent to make sure that the person understands your wishes and is willing to take the responsibility.

     

    You have the right to revoke this advance health-care directive or replace this form at any time.

     

     


                                       JANE DOE

                      DELAWARE POWER OF ATTORNEY FOR HEALTH CARE

     

     

                       PART 1: POWER OF ATTORNEY FOR HEALTH CARE

     

    (1)  DESIGNATION OF AGENT: I designate my children, John Doe and Mary Smith, both of New Castle County, Delaware, acting jointly or the survivor of them, to serve as my agent to make health‑care decisions for me.

         

    (2)  AGENT’S AUTHORITY:  If I am not in a qualifying condition my agent is authorized to make all health‑care decisions for me, except decisions about life‑sustaining procedures and as I state here; and if I am in a qualifying condition my agent is authorized to make all health‑care decisions for me, except as I state here:                                                            

     

    (3)  WHEN AGENT’S AUTHORITY BECOMES EFFECTIVE:  My agent's authority becomes effective when my primary physician determines I lack the capacity to make my own health‑care decisions.  As to decisions concerning the providing, withholding and withdrawal of life‑sustaining procedures my agent's authority becomes effective when my primary physician determines I lack the capacity to make my own health‑care decisions and my primary physician and another physician determine I am in a terminal condition or permanently unconscious.

     

    (4)   HIPAA RELEASE AUTHORITY:  My agent shall be treated as I would be with respect to my rights regarding the use and disclosure of my individually identifiable health information or other medical records.  This release authority applies to any information governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 164.  I authorize any physician, health care professional, dentist, health plan, hospital, clinic, laboratory, pharmacy, or other covered health care provider, any insurance company, and the Medical Information Bureau, Inc. or other health care clearinghouse that has provided treatment or services to me, or that has paid for or is seeking payment from me for such services, to give, disclose, and release to my agent, without restriction, all of my individually identifiable health information and medical records regarding any past, present, or future medical or mental health condition, including all information relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental illness, and drug or alcohol abuse. The authority given my agent shall supersede any other agreement that I may have made with my health care providers to restrict access to or disclose of my individually identifiable health information.  The authority given my agent has no expiration date and shall expire only in the event that I revoke the authority in writing and deliver it to my health care provider.

     

    (5)  AGENT'S OBLIGATION:  My agent shall make health‑care decisions for me in accordance with this power of  attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent.  To the extent my wishes are unknown, my agent shall make health‑care decisions for me in accordance with what my agent determines to be in my best interest.  In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

     

    (6)  NOMINATION OF GUARDIAN:  If a guardian of my person needs to be appointed for me by a court, (please check one):

     

    [ ]  I nominate the agent(s) whom I named in this form in the order designated to act as guardian.

    [ ]  I nominate the following to be guardian in the order designated:                                                          

    [ ]  I do not nominate anyone to be guardian.

     

     

                         PART 2:  INSTRUCTIONS FOR HEALTH CARE

     

    If you are satisfied to allow your agent to determine what is best for you in making end‑of‑life decisions, you need not fill out this part of the form.  If you do fill out this part of the form, you may strike any wording you do not want.

     


    (7)  END‑OF‑LIFE DECISIONS:   If I am in a qualifying condition, I direct that my health‑care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below:

     

    Choice Not to Prolong Life

    I do not want my life to be prolonged if (please check all that apply)

     

    ____ (i) I have a terminal condition (an incurable

    condition caused by injury, disease, or illness which, to a reasonable degree of medical certainty, makes death imminent and from which, despite the application of life‑sustaining procedures, there can be no recovery) and regarding artificial nutrition and hydration, I make the following specific directions:

    I want used             I do not want used

    Artificial nutrition

    through a conduit            _______                  _____

     

    Hydration through a conduit   _______                 _____

     

    _____(ii) I become permanently unconscious (a medical condition that has been diagnosed in accordance with currently accepted medical standards that has lasted at least 4 weeks and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma) and regarding artificial nutrition and hydration, I make the following specific directions:

    I want used             I do not want used

    Artificial nutrition

    through a conduit             _______                 _____

     

    Hydration through a conduit   _______                 _____

     

    Choice to Prolong Life

     

    ______I want my life to be prolonged as long as possible within the limits of generally accepted health‑care standards.



    RELIEF FROM PAIN:  Except as I state in the following space, I direct treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death:

                                                                                                                                                                 

                         (Add additional sheets if necessary)

     

    (8)  OTHER MEDICAL INSTRUCTIONS:   (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.)  I direct that:

                                                                                                                                                                 

                         (Add additional sheets if necessary)

     

                          PART 3:  ANATOMICAL GIFTS AT DEATH

                                      (OPTIONAL)

     

    (9)  I am mentally competent and 18 years or more of age.

    I hereby make this anatomical gift to take effect upon my death.  The marks in the appropriate squares and words filled into the blanks below indicate my desires.

    I give:     [ ] my body;  

    [ ] any needed organs;

    [ ] the following organs or parts                                           _______________________________;

     

    To the following person or institutions: 

    [ ] the physician in attendance at my death;

    [ ] the hospital in which I die;

    [ ] the following named physician, hospital,         storage bank or other medical institution         which can use my body _______________________;

    [ ] the following individual for treatment                              _______________________;

     

    For the following purposes:

    [ ] any purpose authorized by law;  

                [ ] transplantation;  

    [ ] therapy;  

    [ ] research;  

    [ ] medical education.


                               PART 4: PRIMARY PHYSICIAN

                                      (OPTIONAL)

     

    (10) I designate the following physician as my primary physician:

                                                                                                                                             

    (name of physician)

     

                                                                                 (address)                                    (phone)

     

    OPTIONAL:  If the physician I have designated above is not willing, able or reasonably available to act as my primary physician, I designate the following physician as my primary physician:

                                                                                                                                             

    (name of physician)

     

                                                                                (address)                                    (phone)

     

    Primary Physician shall mean a physician designated by an individual or the individual's agent or guardian, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.

     

    (11)  EFFECT OR COPY:  A copy of this form has the same effect as the original.

     

    (12) SIGNATURE: Sign and date the form here:  I understand the purpose and effect of this document:

     

                                                                      (date)                             (sign your name)

                                          

    123 Main Street               JANE DOE                           

    (address)                           (print your name)

     

    Wilmington                    DE                19808      

    (city)                     (state)                (zip)

     

     

     


    (13)  SIGNATURES OF WITNESSES:

                                 Statement of Witnesses

    SIGNED AND DECLARED by the above‑named declarant as and for her written declaration under 16 Del C..§ § 2502, 2503, in our presence, who in her presence, at her request, and in the presence of each other, have hereunto subscribed our names as witnesses, and state:

     

    A.  That the Declarant is mentally competent.

    B.  That neither of them:

        1.  Is related to the declarant by blood, marriage or adoption;

        2.  Is entitled to any portion of the estate of the declarant under any will of the declarant or codicil thereto then existing nor, at the time of the execution of the advance health care directive, is so entitled by operation of law then existing;

        3.  Has, at the time of the execution of the advanced health care directive, a present or inchoate claim against any portion of the estate of the declarant;

        4.  Has a direct financial responsibility for the declarant's medical care;

        5.  Has a controlling interest in or is an operator or an employee of a residential long‑term health‑care institution in which the declarant is a resident; or

        6.  Is under eighteen years of age;

    C.  That if the declarant is a resident of a sanitarium, rest home, nursing home, boarding home or related institution, one of the witnesses, _____________________, is at the time of the execution of the advance health‑care directive, a patient advocate or ombudsman designated by the Division of Services for Aging and Adults with Physical Disabilities or the Public Guardian.

     

    First Witness:                    

     

                                                                       (print name)

     

    Wilmington, Delaware                                                    (address)

                                                                                                                                                     (witness)                                      (date)

     

    I am not prohibited by §2503 of Title 16 of the Delaware Code from being a witness.
    Second Witness:

                                                                                                                                             

    (print name)

                                                                                                                                             

    (address)

     

                                                               

    (signature of witness)                          (date)

     

    I am not prohibited by §2503 of Title 16 of the Delaware Code from being a witness.

     

     

     

    ACKNOWLEDGMENT/NOTARIZATION

    (OPTIONAL)

        

     

     

    STATE OF DELAWARE   )

                   ) SS

    NEW CASTLE COUNTY   )

     

    Subscribed, sworn and acknowledged before me by JANE DOE, the Declarant, subscribed and sworn before me by _________________ and _______________________, witnesses, this _____ day of _______________, A.D., 2013.

        

    ______________________________      Notary Public

     

     

     

                   

     



    [1] DE Code §16-2501(a)

    [2] DE Code §16-2501(h)

    [3] DE Code §16.2505

    [4] See attached.

    [5] Sample Directive attached.

    [6] DE Code §16-2503

    [7] HIPAA §164.508(c)(1)

    [8] 20 Pa.C.S. §5464, Md. HEALTH-GENERAL Code Ann. §5-617,  N.J. Stat. § 26:2H-76

    [9] 20 Pa.C.S. §5484

    [10] DE Code 16-2501(u)

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