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ACT NO. 55


Health care; advance directives

This act modernizes Vermont law on advance directives for health care and for disposition of remains. Advance directives, which are intended to now be used in place of living wills and durable powers of attorney for health care, are documents in which a person may indicate the types of health care desired in the event the person no longer has capacity to make such decisions. Living wills and powers of attorney executed prior to this act remain fully effective.

The act provides a non-exclusive list of subjects which may be addressed in an advance directive by the "principal," which is the term for a person who has executed an advance directive. An advance directive may, among other things:

(1) name an agent to make health care decisions for the principal;

(2) direct the type of health care desired or not desired by the principal, including life-sustaining treatment;

(3) authorize the provision of specific treatments over the principal's objection in the event the principal lacks capacity in the future;

(4) identify persons who may or may not receive the principal's health care information and persons who may make decisions or be consulted regarding the principal's health care decisions;

(5) identify a primary care physician; and

(6) make an anatomical gift and direct the disposition of remains.

The fact that a person does not have an advance directive or does not have a specific instruction in an advance directive has no effect on determining the principal's intent or wishes regarding health care or anything else.

The act comprehensively addresses a number of other issues involving advance directives, as follows:

(1) Sets out the requirements for properly executing an advance directive.

(2) Identifies how an advance directive can be amended, suspended, or revoked.

(3) Describes how and when an advance directive becomes effective once it has been executed.

(4) Requires providers to honor "do not resuscitate" ("DNR") orders and allows for issuance of DNR bracelets or other DNR identification.

(5) Requires health care providers to encourage people to execute advance directives, to follow the instructions in advance directives and the instructions made by agents, and to review and maintain advance directives which have been executed.

(6) Details the authority and obligations of the agent and describes the procedures and considerations required when an agent exercises his or her authority to make health care decisions on behalf of the principal.

(7) Imposes administrative and licensing penalties on health care providers who fail to follow the instructions in an advance directive and provides civil and criminal immunity for actions taken by agents and health care providers while relying in good faith on an advance directive.

(8) Authorizes the probate court to interpret the meaning of an advance directive and to review claims that an advance directive was executed by a principal who was unable to understand it or who was subject to fraud, undue influence, or duress. These claims may be brought by the principal or the principal's family member, agent, guardian, clergy person or health care provider, an ombudsman, or a person who has exhibited special care and concern for the principal and is familiar with the principal's values. Under certain circumstances the act also authorizes the probate court to review a physician's determination that a principal lacks capacity.

(9) Requires the department of health to develop and maintain an internet registry of advance directives. A person may submit his or her advance directive to the registry, and the registry must be accessible at all times to health care providers and persons making decisions for a principal. The act also requires the commissioner of motor vehicles to provide motor vehicle licenses and identity cards which allow the holder to indicate that he or she has an advance directive and whether it is in the registry.

(10) Requires the commissioner of health to report to the legislature each year until 2008 on the status and utilization of the registry (this information must be made available to the public each year thereafter) and on educational efforts to inform Vermonters about the registry and advance directives. The first report must also address the advisability and feasibility of including DNR orders in the registry and recommend how to use driver's licenses to increase the use of advance directives and to link organ donation designations with the registry.

Effective Date: September 1, 2005

Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont