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H.115

Introduced by   Representatives Pugh of S. Burlington, Chen of Mendon, Donahue of Northfield, Emmons of Springfield, Gervais of Enosburg, Head of S. Burlington, Kainen of Hartford, Koch of Barre Town, Lippert of Hinesburg, Maier of Middlebury, Martin of Springfield and Zuckerman of Burlington

Referred to Committee on

Date:

Subject:  Health; advance directives; health care agent; health care instructions; patient's rights

Statement of purpose:  This bill proposes to improve medical care for Vermonters by simplifying the legal requirements for advance directives.

AN ACT RELATING TO ADVANCE DIRECTIVES FOR HEALTH CARE

It is hereby enacted by the General Assembly of the State of Vermont:


Sec. 1.  18 V.S.A. Part 10 is added to read:

PART 10.  HEALTH CARE AND DECISION-MAKING

CHAPTER 231.  ADVANCE DIRECTIVES FOR HEALTH CARE AND DISPOSITION OF REMAINS

§ 9700.  PURPOSE AND POLICY

The state of Vermont recognizes the fundamental right of an adult person to determine the extent of medical treatment the individual will receive, including treatment provided during periods of incapacity and at the end of life.  This chapter enables adults to retain control over their own health care through the use of advance directives, including appointment of an agent and directions regarding health care and disposition of remains.  During periods of incapacity, the decisions by the agent or guardian shall be based on the express instructions, wishes, or beliefs of the individual, to the extent those can be determined.

§ 9701.  DEFINITIONS

As used in this chapter:

(1)  “Advance directive” means a documented record, whether by writing, video, digital, or some other means of recording, executed pursuant to section 9703 of this title, which may include appointment of an agent, identification of a preferred primary care clinician, instructions on health care desires or treatment goals, an anatomical gift as defined in subdivision 5238(1) of this title, disposition of remains, and funeral goods and services.  The term includes documents designated under prior law as a durable power of attorney for health care or a terminal care document.

(2)  “Agent” means an adult to whom authority to make health care decisions is delegated under an advance directive, including an alternate agent if the agent is not reasonably available.

(3)  “Capacity” means an individual’s ability to make and communicate a decision regarding the issue that needs to be decided.  An individual shall be deemed to have capacity:

(A)  to appoint an agent if the individual has a basic understanding of

what it means to have another individual make health care decisions for oneself and of who would be an appropriate individual to make those decisions, and can identify whom the individual wants to make health care decisions for the individual; and

(B)  to make a health care decision if the individual has a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care. 

(4)  “Clinician” means a medical doctor licensed to practice under chapter 23 of Title 26, an osteopathic physician licensed pursuant to subdivision 1750(9) of Title 26, an advance practice registered nurse licensed pursuant to subdivision 1572(4) of Title 26, and a physician’s assistant certified pursuant to section 1733 of Title 26, acting within the scope of the license under which the clinician is practicing.

(5)  “Commissioner” means the commissioner of the department of health.

(6)  “Do-not-resuscitate order” or “DNR order” means a written order of the principal’s clinician directing health care providers not to attempt resuscitation by providing external cardiac compressions, defibrillation, or intubation for the principal.

(7)  “DNR identification” means a document, bracelet, other jewelry, wallet card, or other means of identifying the principal as an individual who has a DNR order.

(8)  “Emergency medical personnel” shall have the same meaning as provided in section 2651 of Title 24.

(9)  “Health care” means any treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition, including services provided pursuant to a clinician’s order, and services to assist in activities of daily living provided by a health care provider or in a health care facility or residential care facility.

(10)  “Health care decision” means consent, refusal to consent, or withdrawal of consent to any health care.

(11)  “Health care facility” shall have the same meaning as provided in subdivision 9432(7) of this title. 

(12)  “Health care provider” shall have the same meaning as provided in subdivision 9432(8) of this title and shall include emergency medical personnel.

(13)  [Reserved for definition of “Informed consent.”]

(14)  “Interested individual” means the principal’s spouse, a reciprocal beneficiary, any adult child, either parent of the principal, an adult sibling or adult grandchild of the principal, or any adult who has exhibited special care and concern for the principal and who is familiar with the principal’s individual values.

(15)  “Life sustaining treatment” means any medical intervention, including antibiotics and medically administered nutrition and hydration, which is intended to extend life and without which the principal is likely to die.

(16)  “Ombudsman” means an individual appointed as a long-term care ombudsman under the program established within the department of aging and independent living pursuant to the Older Americans Act of 1965, as amended.

(17)  “Principal” means an adult who has executed an advance directive or has had a guardian appointed.

(18)  “Principal’s clinician” means the clinician who currently has responsibility for providing health care to the principal.

(19)  “Reasonably available” means able to be contacted with a level of diligence appropriate to the seriousness and urgency of a principal’s health care needs, and willing and able to act in a timely manner considering the urgency of the principal’s health care needs.

(20)  “Registry” means a secure, web-based registry created by the commissioner containing copies of advance directives that is accessible to principals, and as needed to health care providers, health care facilities, and residential care facilities, and the employees thereof. 

(21)  “Residential care facility” means a residential care home or an assisted living residence as those terms are defined in section 7102 of Title 33.

(22)  “Suspend” means to revoke all or part of an advance directive for a specific period of time or while a specific condition exists.

§ 9702.  ADVANCE DIRECTIVE

(a)  By an advance directive, an adult may do any or all of the following:

(1)  appoint an agent and alternate agents to whom authority to make health care decisions is delegated, and specify the scope of such authority;

(2)  affirm that the agent and alternate agents have been notified of and accepted the appointment and will be given copies of the advance directive;

(3)  specify a condition which, when met, makes the authority of an agent effective or ineffective, and may specify the manner in which the condition shall be determined to have been met;

(4)  direct the type of health care desired or not desired by the principal, including transfer from home and hospitalization;

(5)  direct which life sustaining treatments, whether emergency,

short-term, or long-term, if any, are desired by the principal;

(6)  identify those individuals with whom the agent shall consult or is authorized to provide information regarding the principal’s health care;

(7)  authorize release to named individuals in addition to the agent of health information pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d, and 45 C.F.R.

§§ 160-164;

(8)  provide any other direction that the principal desires to give regarding the principal’s future health care or personal circumstances;

(9)  identify a preferred primary care clinician, and affirm that the clinician has been notified;

(10)  nominate individuals to serve as the principal’s guardian if a guardian should at some later time need to be appointed;

(11)  make, limit, or refuse to make an anatomical gift pursuant to chapter 109 of this title;

(12)  direct the manner of disposition of the principal’s remains and the funeral goods and services to be provided;

(13)  identify a pre-need contract entered into with a funeral director, crematory, or cemetery; and

(14)  appoint an individual to arrange for the disposition of the principal’s remains, including funeral goods and services, and an anatomical gift.

(b)  The principal’s health care provider may not be the principal’s agent.  Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, employee, agent, or contractor of a residential care facility or a health care facility in which the principal resides. 

(c)  Unless related to the principal by blood, marriage, or adoption, a person may not exercise the authority pursuant to an advance directive for disposition of remains, anatomical gifts, or funeral goods and services while serving the interests of the principal in one of the following capacities:

(1)  a funeral director or employee of the funeral director;

(2)  a crematory operator or employee of the crematory operator; or

(3)  a cemetery official or employee of the cemetery.

(d)  Nothing in this chapter shall be construed to limit or abrogate an individual’s ability to create a document of anatomical gift pursuant to chapter 109 of this title.

§ 9703.  FORM AND EXECUTION OF ADVANCE DIRECTIVE

(a)  An adult with capacity may execute an advance directive at any time.

(b)  If the advance directive is in writing, it shall be:

(1)  dated; executed by the principal or by another individual in the principal’s presence at the principal’s express direction if the principal is physically unable to do so; and signed in the presence of two or more witnesses at least 18 years of age, who shall sign and affirm that the principal appeared to understand the content of the advance directive and to be free from duress at the time the advance directive was signed; or

(2)  if the advance directive is being deposited in the registry, executed in accordance with the rules regarding execution of advance directives adopted by the commissioner.

(c)  If the advance directive is recorded by video, digital, or other reliable means of recording the words and images of the principal and witnesses, it shall be:

(1)  read and affirmed by the principal, or read by another individual in the principal’s presence and at the principal’s express direction, and affirmed by the principal;

(2)  verified by two or more witnesses at least 18 years of age, who shall affirm that they were present when the advance directive was read, and that the principal appeared to understand the content of the advance directive and to be free from duress at the time the advance directive was affirmed by the principal; and

(3)  dated by the oral pronouncement of the principal and of each witness on the video, digital, or other means of recording.

(d)  The agent appointed by the principal may not witness the advance directive, and no more than one of the two witnesses may be the principal’s spouse, reciprocal beneficiary, parent, adult sibling, adult child, or adult grandchild.

(e)  It is the intent of this subsection to ensure that residents of nursing homes and residential care facilities are willingly and voluntarily executing advance directives.

(f)  An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a patient in a hospital, unless an individual designated by the hospital signs a statement that he or she has explained the nature and effect of the advance directive to the principal.

(g)  A durable power of attorney for health care or terminal care document executed prior to the enactment of this chapter shall be a valid advance directive if the document complies with the statutory requirements in effect at the time the document was executed or with the provisions of this chapter.

§ 9704.  SUSPENSION AND REVOCATION

(a)  A principal may suspend or revoke the designation of an agent only by the principal’s signed statement or by personally informing the principal’s clinician, who shall make a written record of the suspension or revocation in the principal’s medical record.

(b)  A principal may suspend or revoke all or part of an advance directive, other than the designation of an agent, at any time and in any manner that communicates the intent to suspend or revoke.

(c)  A health care provider, employee of a health care facility, employee of a residential care facility, agent, or guardian who is informed of a suspension or revocation shall make reasonable efforts to confirm the suspension or revocation, to record the same in the principal’s medical record, and to communicate that fact promptly to the principal’s agent, guardian, any person designated in the advance directive to receive such notice, to the principal’s clinician, health care provider, health care facility or residential care facility at which the principal is residing or receiving care, and to any entity or individual known to hold a copy of the principal’s advance directive.

(d)  A decree of annulment, divorce, dissolution of a civil union, a legal separation, or an order for relief from abuse under chapter 21 of Title 15 or subchapter 2 of chapter 69 of Title 33, revokes a previous designation of the spouse or the defendant of the action as agent unless otherwise specified in the advance directive, decree, or order.

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

§ 9705.  DUTY TO DELIVER

An individual possessing a duly executed advance directive to whom it becomes known that the terms of the advance directive may be applicable shall deliver the advance directive to the principal’s clinician, other health care provider, health care facility, or residential care facility, unless the individual knows that another copy has previously been delivered and is available.

§ 9706.  CERTIFICATION THAT AN ADVANCE DIRECTIVE IS IN

               EFFECT

(a)  In order to implement the provisions of an advance directive or the decisions of an agent, a principal’s clinician shall:

(1)  certify in the principal’s medical record that:

(A)  the principal lacks capacity, including specific findings regarding the cause, nature, and projected duration of the principal’s lack of capacity, or

(B)  to the best of the clinician’s knowledge, the condition specified pursuant to subdivision 9702(a)(3) of this title has been met; and

(2)  make reasonable efforts to notify the principal, and shall notify the principal’s agent or guardian, of the certification. 

(b)  Upon the request of any interested individual, guardian, ombudsman, health care provider, or the principal, the principal’s clinician or the clinician’s designee shall reexamine the principal to determine whether the principal has regained capacity.  The principal’s clinician shall document the results of the reexamination in the principal’s medical record and shall make reasonable efforts to notify the principal and the agent or guardian, as well as the individual who initiated the new determination of capacity, of the results of the reexamination.

(c)  Any interested individual or person entitled to notification of a determination of capacity under subsection (a) or (b) of this section may bring an action pursuant to section 9718 of this title to challenge the determination, except that prior to bringing such action the interested individual or person entitled to notification shall obtain a determination from a second clinician regarding the principal’s capacity.

(d)  The authority of an agent to make health care decisions for a principal shall cease in accordance with subsection 9711(b) of this title.


§ 9707.  AUTHORITY AND OBLIGATIONS OF HEALTH CARE PROVIDERS, HEALTH CARE FACILITIES, AND RESIDENTIAL CARE FACILITIES REGARDING HEALTH CARE INSTRUCTIONS

(a)  A health care provider, health care facility, and residential care facility shall not provide medical care to a principal, except on an emergency basis, without first attempting to determine whether the principal has an advance directive in effect.

(b)  A health care provider, health care facility and residential care facility, having knowledge that a principal’s advance directive is in effect, shall follow the instructions of the agent or guardian, unless:

(1)  the instruction is clearly inconsistent with the advance directive or this chapter, and the agent or guardian has failed to substantiate that the decision is proper under subsection 9711(d) of this title, or would cause the provider to violate any criminal law or the standards of professional conduct required by a professional licensing board or agency, in which case the provider shall notify the agent or guardian that the provider cannot follow the instruction; or

(2)  because of a moral, ethical, or other conflict with an instruction in the advance directive or given by the agent or guardian, a principal’s provider, or an employee thereof, is unwilling to follow that instruction, in which case the provider or employee shall have the duty to:

(A)  inform the principal, if possible, and the agent or guardian of the conflict;

(B)  assist the principal, agent, or guardian in selecting another provider or employee who is willing to honor the instruction;

(C)  provide ongoing health care until a new provider or employee has been found to provide the services; and

(D)  document in the principal’s medical record the conflict, the steps taken to resolve the conflict, and the resolution of the conflict.

(c)  In those circumstances where there is more than one adult identified as the agent, the principal’s clinician, health care provider, or residential care provider may rely on the decision of one of the identified agents when providing health care. 

(d)  The health care provider shall make reasonable efforts to inform the principal of any proposed health care or of any proposal to withhold or withdraw health care.

(e)  Notwithstanding that an advance directive is in effect, and irrespective of a principal’s capacity, health care may not be given to or withheld from a principal over the principal’s objection; should the principal object, the health care provider shall notify the agent or guardian that the principal desires or has declined health care.

§ 9708.  AUTHORITY AND OBLIGATIONS OF HEALTH CARE

              PROVIDERS, HEALTH CARE FACILITIES, AND RESIDENTIAL

              CARE FACILITIES REGARDING DO-NOT-RESUSCITATE

              ORDERS 

(a)  A clinician who authorizes a do-not-resuscitate (DNR) order may authorize issuance of a DNR identification to the principal.     

(b)  Every health care provider shall honor a DNR order or a DNR identification unless the health care provider:

(1)  believes in good faith, after consultation with the agent or guardian where possible and appropriate, that:

(A)  the principal wishes to have the DNR order revoked; or

(B)  the principal with the DNR identification is not the individual for whom the DNR order was issued; and

(2)  documents the basis for that belief in the principal’s medical record.

(c)  A DNR order does not affect the authority and obligation of a health care provider to provide all appropriate forms of treatment other than resuscitation, including to relieve an obstructed airway.


§ 9709.  OBLIGATIONS OF HEALTH CARE PROVIDERS, HEALTH

               CARE FACILITIES, RESIDENTIAL CARE FACILITIES, AND

               HEALTH INSURERS REGARDING SYSTEMS, PROTOCOLS,

               AND NONDISCRIMINATION

(a)  Every health care provider, health care facility, and residential care provider shall develop systems:

(1)  to ensure that a principal’s advance directive and DNR order, if any, is promptly available when services are to be provided, including that the existence of an advance directive or DNR order is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the provider or facility;

(2)  for maintaining advance directives received from individuals who anticipate future care but are not yet patients of that provider or facility; and

(3)  within 120 days of the commissioner announcing the availability of the registry, to ensure that the provider or facility checks the registry at the time any individual is admitted or provided services to determine whether the individual has an advance directive.

(b)  Every health care facility and residential care facility shall develop a protocol to ensure that:

(1)  a patient with capacity is asked if the patient has an advance directive at admission to, and periodically while at, the facility;

(2)  patients with an advance directive are encouraged and helped to submit the advance directive or a notice of the advance directive to the registry; and

(3)  upon transfer from the facility, a copy of the principal’s advance directive, DNR order, or clinician orders for life sustaining treatment, are transmitted with the principal or, if the transfer is to a health care facility or residential care facility, are promptly transmitted to the subsequent facility unless the sending facility has confirmed that the receiving facility has a copy of any advance directive, DNR order, and clinician orders for life sustaining treatment.

(c)  No health care provider, health care facility, residential care facility, health insurer as defined in section 9402 of this title, insurer issuing disability insurance, or self-insured employee welfare benefit plan shall charge an individual a different rate or require any individual to execute an advance directive or to obtain a DNR order or DNR identification as a condition of admission to a facility, or as a condition of being insured for or receiving health care or residential care.  No health care shall be refused except as  provided herein because a person is known to have executed an advance directive.

(d)  The absence of an advance directive shall not create a presumption as to the type of health care that the principal desires or does not desire.

(e)  Nothing in this chapter shall be interpreted to affect the statutory or common law in existence at the time of enactment applicable to

physician-assisted dying.

§ 9710.  [RESERVED]

§ 9711.  AUTHORITY AND OBLIGATIONS OF AGENT AND GUARDIAN

(a)  The authority of the agent becomes effective only when the certification specified in subsection 9706(a) of this title has been entered into the principal’s medical record.

(b)  The authority of the agent ceases to be effective upon a clinician’s determination that the principal has recovered capacity or the condition specified pursuant to subdivision 9702(a)(3) of this title is no longer met.

(c)  Subject to the provisions of this chapter, other applicable provisions of law, and any express limitations set forth in a court order or by the principal in an advance directive, an agent or guardian shall have the authority to make any and all health care decisions on the principal’s behalf that the principal could make if the principal had capacity.

(d)  After consultation with the principal, to the extent possible, and with the principal’s clinician and any other appropriate health care providers and any individuals identified in the advance directive as those with whom the agent shall consult, the agent or guardian shall make health care decisions based upon the following and in the following order of priority:

(1)  in accordance with the principal’s most recent wishes expressed to the agent, guardian, or health care provider to the extent those expressions are applicable;

(2)  in accordance with the principal’s specific instructions contained in an advance directive to the extent those directions are applicable; 

(3)  in accordance with the principal’s wishes expressed to the agent, guardian, or health care provider prior to the execution of an advance directive, if any, to the extent those expressions are applicable;

(4)  in accordance with the knowledge of the agent or guardian of the principal’s values or religious or moral beliefs; or

(5)  if the principal’s wishes, values, and beliefs cannot be determined, in accordance with the assessment of the agent or guardian of the principal’s best interests.

(e)  The agent or guardian shall not consider the principal’s economic status or preexisting, long-term mental or physical disability when making decisions to authorize the provision or withholding of health care for the principal.

(f)  Unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights as the principal to request, receive, examine, copy, and consent to the disclosure of medical or other health care information.

(g)  Nothing in this chapter shall be construed to give an agent authority to consent to voluntary sterilization or voluntary admission to any hospital for mental health treatment.

(h)  A principal under guardianship with medical decision‑making powers granted to the guardian in accordance with subdivision 3069(b)(5) of Title 14 may not make an advance directive for health care, but any prior advance directive for health care shall remain in force, except insofar as expressly ordered by the probate court.  An agent’s authority shall not be affected by the appointment of a guardian for the principal except insofar as expressly ordered by the probate court.

§ 9712.  OBLIGATIONS OF FUNERAL DIRECTORS, CREMATORY OPERATORS, CEMETERY OFFICIALS, AND INDIVIDUALS APPOINTED TO ARRANGE FOR THE DISPOSITION OF THE PRINCIPAL’S REMAINS

(a)  An individual appointed to arrange for the disposition of the principal’s remains shall make those decisions based upon the principal’s specific instructions contained in an advance directive or pre-need contract entered into with a funeral director, crematory, operator or cemetery official, or, if there are no such instructions, in accordance with the principal’s wishes expressed orally or the knowledge of the agent or guardian of the principal’s values or religious or moral beliefs.

(b)  Any funeral director, crematory operator, or cemetery official having knowledge of a principal’s advance directive, shall follow the advance directive and any instructions of the individual appointed in an advance directive to arrange for the disposition of the principal’s remains except:

(1)  if any instruction would cause the director, operator, or official to violate the standards of professional conduct required by a professional licensing board or agency or any criminal law, the director, operator, or official shall notify the individual appointed that the director, operator, or official cannot follow the instruction; or

(2)  if the principal’s estate is without sufficient funds to dispose of the remains or provide funeral goods and services in accordance with the advance directive, the disposition shall occur in a manner approximating the principal's wishes to the extent it is financially possible.

(c)  Every funeral director, crematory operator, and cemetery official shall develop systems to ensure that a principal’s advance directive is promptly available when services are to be provided, including that the existence of an advance directive is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the director, operator, or official.

(d)  In the event the principal’s instructions in an advance directive regarding disposition of remains or for funeral goods and services are in apparent conflict with a contract entered into by the principal for the disposition of remains, funeral goods, or services, the most recent document created by the principal shall be followed to the extent of the conflict.  Nothing in this subsection shall be construed as limiting any other available remedies. 

§ 9713.  IMMUNITY

(a)  No person acting as an agent or guardian shall be subjected to criminal or civil liability for making a decision in good faith pursuant to the terms of an advance directive and the provisions of this chapter.

(b)  No health care provider, health care facility, residential care facility, or any other person acting for or under such person’s control, shall be subjected to civil or criminal liability, nor be deemed to have engaged in unprofessional conduct, for providing or withholding health care in good faith pursuant to the provisions of an advance directive, a DNR identification of the principal, the consent of the principal’s agent or guardian, a decision or objection of a principal, or the provisions of this chapter.  Nothing in this subsection shall be construed to establish immunity for the failure to exercise due care in the provision of services.

(c)  No health care provider, health care facility, residential care facility, funeral director, crematory operator, cemetery official, or employee of any of them, shall be subjected to civil or criminal liability or be deemed to have engaged in unprofessional conduct for relying on a suspended or revoked advance directive, unless the provider, facility, director, operator, official or employee knew or should have known of the suspension or revocation.

§ 9714.  LIABILITY

(a)  A health care provider, health care facility, residential care facility, funeral director, crematory operator, or cemetery official, or an employee of any of them, having actual knowledge of an advance directive or an instruction of the principal, agent, or guardian, is subject to review and disciplinary action by the appropriate licensing board for failing to act in accordance with the advance directive or instruction unless the provider, facility, or employee is acting pursuant to subsection 9707(b) of this title.

(b)  A health care provider, health care facility, residential care facility, funeral home director, crematory operator, or cemetery official, or an employee of any of them, who accesses the registry without authority or when authority has been denied specifically by the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing board. 

(c)  Nothing in this section shall be construed as limiting any other available remedies.

(d)  Liability for the cost of health care, disposition of remains, anatomical gifts, or funeral goods and services provided pursuant to an advance directive or pursuant to an instruction of the agent, guardian or individual designated in an advance directive to make decisions regarding disposition of remains shall be the same as if the services were provided pursuant to the principal’s decision.

§ 9715.  SUICIDE

The withholding or withdrawal of life sustaining treatment from a principal who has executed an advance directive limiting the provision of life sustaining treatment shall not be construed as a suicide.

§ 9716.  RECIPROCITY

Nothing in this chapter limits the enforceability of an advance directive or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction.

§ 9717.  PRESUMPTION OF VALIDITY

An advance directive executed as provided in this chapter shall be presumed valid.  No third party shall require an additional or different form of advance directive.  A copy of a duly executed original advance directive shall be relied upon to the same extent as the original.

§ 9718.  CIVIL ACTION

(a)  After providing notice to the agent, if any, any person who is a near relative of the principal or a responsible adult who is directly interested in the principal, including but not limited to a guardian, social worker, clinician, or member of the clergy, may, after providing notice to the agent, if any, file an action in probate court:

(1)  requesting that the advance directive be revoked on the grounds that the principal lacked capacity to understand the content of the advance directive, was under duress, or was the subject of fraud or undue influence when the advance directive was executed;

(2)  challenging a certification or determination under subsection 9706(a) or (b) of this title, regarding the capacity of the principal, as long as the requirements of subsection 9706(c) have been met; or

(3)  for an order for disposition of the remains of the principal. 

(b)  The agent, if any, shall have the opportunity to appear in any action brought under subdivision (a)(1) or (2) of this section.

§ 9719.  OBLIGATIONS OF STATE AGENCIES

(a)  Within 180 days of the effective date of this act, and from time to time thereafter, the commissioner, in consultation with all appropriate agencies and organizations, shall adopt rules to effectuate the intent of this chapter.  The rules shall cover the form and content of clinician orders for life sustaining treatment, DNR identification, revocation of a DNR identification, and optional forms for advance directives.  The commissioner shall also provide, but without the obligation to promulgate a rule, optional forms for advance directives for persons with disabilities, limited English proficiency, and cognitive translation needs.

(b)(1)  Subject to an appropriation, the department of health, in coordination with the department of motor vehicles, shall develop and maintain a registry identifying persons with advance directives.  The registry shall be maintained in a secured database that provides authorized clinicians immediate access to the registry at all times.  All persons entered in the registry shall have the right to revoke or amend their advance directive as provided in this chapter. In no event shall the data be accessed or used for any purpose unrelated to health care decisions.

(2)  The commissioner is authorized to contract with a qualified entity to assist with the development and maintenance of the advance directive registry and to secure grants from public and private sources and to receive and disburse funds which are assigned, donated, or bequeathed to the department, to cover the costs of the registry.

(3)  The commissioner of health and the commissioner of motor vehicles shall adopt rules pursuant to chapter 25 of Title 3 for implementing their respective roles in the development and maintenance of the registry, including interdepartmental coordination, and the security of, and limitations on, access to the computerized data.  The registry shall be implemented, and a report to the general assembly shall be submitted, on or before January 15, 2006 unless the funds to develop the registry are not appropriated.

(c)  Within 90 days of the effective date of this act, or as soon thereafter as new motor vehicle licenses and identity cards are available, the department of motor vehicles shall provide motor vehicle licenses and identity cards which allow the license or card holder to indicate that he or she has an advance directive and whether it is in the registry. 

§ 9720  OPTIONAL FORM [RESERVED]

Sec. 2.  14 V.S.A. § 3062 is amended to read:

§ 3062.  JURISDICTION

The probate court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to section 9718 of Title 18.

Sec. 3.  14 V.S.A. § 3075(c) and (d) are added to read:

(c)  An agent seeking to challenge the revocation or suspension of the agent’s authority shall file a petition for involuntary guardianship.

(d)  When a guardian seeks authority to withhold or withdraw life sustaining treatment, the probate court shall hold a hearing after notice and appointment of counsel for the ward.  Among the factors to be considered by the court shall be those set out in subsection 9711(d) of Title 18, the ward’s current physical condition, and the likely effects of employing or withholding health care.  The court’s decision shall authorize the implementation of the wishes of the ward expressed in any written advance directive for health care which was in effect when the petition for guardianship was filed.  In the absence of any such directive, the court’s decision shall be in accordance with substituted judgment based upon the evidence if there is sufficient evidence before the court, and if there is not sufficient evidence to determine substituted judgment, the court shall make its decision based upon the best interests of the ward.

Sec. 4.  14 V.S.A. § 3081(d) is added to read:

(d)  If the court appoints a temporary guardian with the power to consent to medical treatment or other health powers related to the ward’s health care, the court shall order that the temporary guardian act in accordance with the provisions of section 9711 of Title 18.

Sec. 5.  18 V.S.A. § 1852(a) is amended to read:

§ 1852.  PATIENTS' BILL OF RIGHTS; ADOPTION

(a)  The general assembly hereby adopts the "Bill of Rights for Hospital Patients" as follows:

* * *

(16)  The patient has the right to receive professional assessment of pain and professional pain management.

(17)  The patient has the right to be informed in writing of the availability of hospice services and the eligibility criteria for those services.

Sec. 6.  STATUTORY REVISION

Legislative council shall make such technical statutory revisions as necessary to conform existing statutory law to the changes reflected in this act, including any changes in terminology.

Sec. 7.  TRANSITIONAL PROVISIONS

(a)  This act shall not apply to powers of attorney executed before July 1, 1988, or to durable powers of attorney for health care and terminal care documents executed prior to July 1, 2004.

(b)  Notwithstanding any provision of law to the contrary, any irrevocable pre-need contract in effect prior to July 1, 2004 shall be considered an advance directive, may not be amended except by the principal, and shall be enforced as if entered into on or after July 1, 2004. 

Sec. 8.  REPEAL

18 V.S.A. chapter 111 (terminal care documents and durable power of attorney for health care) is repealed.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us