January 2008
New Advance Directives for 2008 Part 1
In last month's column I introduced the
new advance directives for 2008. More space
than is available here is needed to fully
address these directives, but I will provide
some of the basics in this and in subsequent
columns.
To briefly review, Senate Bill 75
dramatically revises Utah's Code governing
advance directives. Although passed during
the 2007 Legislative Session, the new
directives were delayed until January 1, 2008.
Utah's "Personal Choice and Living Will
Act", has been repealed and replaced with the
"Advance Health Care Directive Act" ("Act").
The Act is found in Sections 75-2a-101 thru
124, Utah Code Annotated.
The Act creates a presumption that an
individual has capacity to make health care
decisions and appoint an agent. And, the Act
recognizes that a person may have capacity to
appoint an agent even though that person may
lack capacity to make health care decisions.
The following factors are considered by
a health care provider, attorney, or court when
determining whether an individual who lacks
health care capacity has retained capacity to
appoint an agent:
- whether the individual has
expressed over time an intent to
appoint the same person as agent;
- whether the choice of agent is
consistent with past relationships
and patterns of behavior between
the individual and the prospective
agent, or, if inconsistent, whether
there is a reasonable justification
for the change; and
- whether the individual's expression
of the intent to appoint the agent
occurs at times when, or in settings
where, the individual has the
greatest ability to make and
communicate decisions.
This is a significant change in the law.
Previously, a person who lacked capacity for
health care was deemed unable to appoint an
agent or surrogate. Now, an incapacitated
person may, based on the foregoing factors,
retain capacity to designate or appoint an
agent.
A persons agent, or surrogate decision
maker, may make health care decisions for the
person based on:
- the person's current preferences, to
the extent possible;
- the person's written or oral health
care directions, if any, unless the
health care directive indicates that
the surrogate may override the
person's health care directions; and
- other wishes, preferences, and beliefs, to the extent known to the
surrogate.
If a surrogate doesnt know the wishes or
preferences of the person, the surrogate may
make a decision based upon an objective
determination of what is in the individual's
best interest.
A surrogate may also make health care
decisions to terminate life sustaining
treatment for the person.
In effect, the provisions of the Act give
substantial authority to the agent that a person
designates in advance. And this is good, since
it is impossible to predict ones own medical
circumstances in the future and the medical
technology existing at that time.
The appointment of an agent or surrogate
for health care is probably the most important
act a person can take with respect to health
care planning.
Notwithstanding this new power for
surrogates, a surrogate may not admit the
person for long-term custodial placement
other than for assessment, rehabilitative, or
respite care without the consent of the person.
A surrogate acting under authority of the
Act is not subject to civil or criminal liability
or claims of unprofessional conduct for
surrogate health care decisions made in
accordance with the Act and made in good
faith.
If a surrogate is not available, the Act
provides the following priority scheme for a
persons family to act as surrogate:
- the persons spouse, unless divorced or
legally separated from the individual; or
- a child;
- a parent;
- a sibling;
- a grandparent; or
- a grandchild.
If the family members listed above are
not reasonably available to act as a surrogate
decision maker, a non-family member may act
as a surrogate if he or she:
- has health care decision making
capacity;
- has exhibited special care and
concern for the patient;
- is familiar with the patient's
personal values; and
- is reasonably available to act as a
surrogate.
In my next column, I will introduce the
process to appoint an agent and make advance
directives for health care.
Consulting with an Elder Law Attorney
may help you decide if you need to consider
changes to your existing medical directives.
To locate an Elder Law Attorney, check with
the National Academy of Elder Law
Attorneys at (520) 881-4005, or your local
Yellow Pages.
YOUR QUESTIONS: Do you have a particular question that you would like answered? To
better serve the readers of the Utah Spirit, please direct your
questions in writing to Michael A. Jensen, Elder Law Attorney,
PO Box 571708, Salt Lake City, Utah 84157-1708, or by e-mail at:
mike-spirit@utahattorney.com.
From time to time, I will attempt to answer some of those questions.
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