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H.215

Introduced by   Representative Donahue of Northfield

Referred to Committee on

Date:

Subject:  Health; guardianship; probate; medical decisions; surrogacy; advance directives

Statement of purpose:  This bill proposes to create a unified statutory definition for competency for medical decision-making and clarify the role of the probate court in substitute decision-making.

AN ACT RELATING TO MEDICAL GUARDIANSHIP

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

Sec. 1.  14 V.S.A. chapter 111, subchapter 10 is added to read:

Subchapter 10.  Medical Guardianship

§ 3041.  DEFINITIONS

The words and phrases used in this subchapter shall be defined as follows:

(1)  “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 advanced 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.

(2)  “Emergency” means a delay of more than 24 hours will be highly probable to cause serious and irreversible harm to the individual’s health or death.

(3)  “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 physician’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.

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

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

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

(7)  “Highly invasive health care” means:

(A)  the discontinuation of life support;

(B)  a request for a do-not-resuscitate order;

(C)  reproductive decisions, including life support with pregnancy, sterilization, or termination of pregnancy;

(D)  treatments that are intended to alter mental functioning or have a significant risk of a side effect that will permanently impair mental or bodily functions, including brain surgery, psychotropic medications, and electroconvulsive therapy; and

(E)  potentially lifesaving experimental procedures for terminal conditions when other usual health care treatments have failed.

(8)  “Incompetent for health care decisions” means a clinician has determined that an individual is unable to make and communicate a decision regarding proposed health care.  An individual shall be deemed competent if the individual has a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.

(9)  “Interested party” means a responsible adult who has a direct interest in an individual who is incompetent for health care decisions, and includes the proposed individual, a near relative, a guardian, a public official, a social worker, a clinician or a member of the clergy.

(10)  “Invasive health care” means health care for which an ordinary prudent individual would seek information about the risks and benefits in order to make informed consent and any written consent required.

(11)  “Near relative” means a parent, stepparent, brother, sister, grandparent, or adult child.

(12)  “Routine health care” means health care that is assumed to be the ordinary response to a course of illness or injury, including prevention, screening, and diagnostic, outpatient, and inpatient care that is not urgent or an emergency.

(13)  “Urgent” means a delay of more than five days will be likely to cause serious and irreversible harm to the individual’s health.

§ 3042.  PETITION FOR MEDICAL GUARDIANSHIP

(a)  Any interested party may file a petition with the probate court for the appointment of a medical guardian for an adult incompetent for health care decisions.  The petition shall include:

(1)  the name and address of the petitioner, the name, address, and age of the individual claimed to be incompetent for health care decisions, and if known, the name and address of a near relative of the individual subject to the petition;

(2)  the interest of the petitioner in the individual subject to the petition;

(3)  the facts in support of the allegation that the individual is incompetent for health care decisions;

(4)  the facts and circumstances of the health care treatment sought, if any;

(5)  the name and address of any proposed medical guardian and the relationship of the proposed guardian to the individual subject to the petition; and

(6)  a copy of any advance directive executed pursuant to chapter 111 of Title 18 by the individual subject to the petition.

(b)  An interested party may only file a petition under this section when there is a validly executed advance directive pursuant to chapter 111 of Title 18 if:

(1)  the individual executing the advance directive is alleged not to have been competent when the advance directive was completed;

(2)  the appointed agent or instructions of the individual contained in the advance directive are not being followed;

(3)  the appointed agent or health care provider is not following the expressed wishes of the individual in the manner intended;

(4)  the interested party believes the individual subject to the petition is competent; and

(5)  the advance directive does not designate an agent or the health care decision is outside the scope of the advance directive.

(c)  A petition under this section may be filed for a limited, specified time period or circumstance or may be filed for permanent medical guardianship.

§ 3043.  CONSENT FOR MEDICAL TREATMENT

(a)  If no guardianship petition has been filed, a clinician shall determine if the individual is incompetent for health care decisions.  If the individual is competent for health care decisions, the individual’s informed consent shall be obtained before the health care is performed.  In such cases, the individual’s consent shall be determinative, and no other consent is necessary.  If the individual is incompetent for health care decisions, the procedures under this subchapter shall be followed prior to providing the health care unless otherwise provided for in subsection 3051(b) of this title.

(b)  If an individual has completed an advance directive and is found to be incompetent for health care decisions by the individual’s clinician, any agent or explicit directions in the advance directive shall be binding without involvement of the probate court.

§ 3044.  NOTICE OF PETITION AND HEARING

(a)  Upon the filing of the petition, the probate court shall schedule a hearing, and notice shall be given as provided by the rules of probate procedure except as otherwise provided in this subchapter.

(b)  The hearing shall be held not less than 15 nor more than 30 days after the petition is filed with the court, except as provided for in section 3051 of this title.  The hearing may be continued for good cause shown for not more than 15 additional days.

(c)  If the petition is uncontested, the court may waive the requirement to hold a hearing.

(d)  If adherence to the procedures set out in this subchapter would cause serious and irreparable harm to the respondent’s health or if otherwise provided for in this subchapter, the court may hold an emergency hearing as soon as practicable.

§ 3045.  COUNSEL

(a)  Counsel shall be appointed for the respondent in initial proceedings relating to a medical guardianship up to and including the appointment of a guardian or dismissal of the petition.  Counsel shall have the right to withdraw after a guardian is appointed or after dismissal.

(b)  Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court.  Counsel shall consult with the respondent prior to the hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents.

(c)  Respondent’s counsel shall be compensated from the respondent’s estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure.  For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

§ 3046.  GUARDIAN AD LITEM

On motion of the respondent’s or ward’s counsel or on the court’s own motion, the court may appoint a guardian ad litem if it finds the respondent or ward is unable to communicate with or advise counsel.

§ 3047.  HEARINGS

(a)  All individuals to whom notice has been given pursuant to section 3044 of this title may attend the hearing and testify.  The respondent and the petitioner may subpoena, present, and cross-examine witnesses.  The court may exclude any person not necessary for the conduct of the hearing on motion of the respondent.

(b)  The hearing shall be conducted in a manner consistent with orderly procedure and in a setting not likely to have a harmful effect on the health of the respondent.

(c)  Either party may be represented by counsel in any proceedings brought under this chapter.

(d)  If upon completion of the hearing and consideration of the record the court finds that the respondent is not incompetent for health care decisions, it shall dismiss the petition and seal the records of the proceeding.

(e)  Except as provided for in subsection (f) of this section, if upon completion of the hearing and consideration of the record the court finds that the petitioner has proved by a preponderance of the evidence that the respondent is incompetent for health care decisions, it shall enter judgment specifying the powers and duties of the medical guardian pursuant to sections 3047 and 3048 of this title.

(f)  In order to enter judgment approving highly invasive health care or any health care objected to by the respondent through actions or verbal communications, the court shall find that the petitioner has proven by clear and convincing evidence that the respondent is incompetent for health care decisions, and that the respondent would have wanted the highly invasive health care if competent.  If upon completion of the hearing and consideration of the record the court makes these findings, it shall enter judgment specifying the powers and duties of the medical guardian pursuant to sections 3047 and 3048 of this title.

(g)  Any party to the proceeding before the court may appeal the court’s decision in the manner provided in section 3053 of this title.

§ 3048.  MEDICAL GUARDIANS; INDIVIDUALS WHO MAY SERVE

(a)  Competent individuals of at least 18 years of age may serve as medical guardians.  The following persons may not serve as a medical guardian:

(1)  an individual disqualified by the respondent personally informing the respondent’s health care provider or by another reliable means;

(2)  the respondent’s health care provider; or

(3)  an owner, operator, or employee of a health care facility or residential care facility in which the principal resides, unless related to the principal by blood, marriage, or adoption.

(b)  In appointing an individual to serve as medical guardian, the court shall select an individual with a close relationship to the respondent and most likely to be currently informed of and able to implement the principal’s wishes and values regarding health care.

(c)  The court shall appoint the individual chosen or desired by the respondent to be the medical guardian if the respondent can identify who the individual wants as medical guardian and has a basic understanding of what it means to have another individual make health care decisions for oneself and who would be an appropriate individual to make those decisions.

§ 3049.  POWERS AND DUTIES OF PROPOSED MEDICAL GUARDIANS

(a)  Unless there is an objection filed with the court, a proposed medical guardian shall automatically have the powers and duties of a medical guardian after filing a petition with the probate court and prior to hearing when the health care to be provided is routine.

(b)  A proposed medical guardian shall have the powers and duties of a medical guardian for specific invasive or highly invasive health care if the health care is urgent or an emergency and if the procedures required in section 3051 of this title are followed.

§ 3050.  POWERS AND DUTIES OF A MEDICAL GUARDIAN

(a)  After consultation with the individual’s clinician and any other appropriate health care providers, a medical guardian shall make routine health care decisions for an individual without further involvement of the probate court.

(b)  After consultation with the individual’s clinician and any other appropriate health care providers, the medical guardian shall make health care decisions based upon the following and in the following order of priority:

(1)  in accordance with the individual’s specific instructions contained in any advance directive, to the extent those directions are applicable;

(2)  in accordance with the individual’s wishes previously expressed orally to the medical guardian or health care provider, to the extent those expressions are applicable;

(3)  in accordance with the knowledge of the guardian of the individual’s values or religious or moral beliefs; or

(4)  if the individual’s wishes, values, and beliefs cannot be determined or the guardian deems them inapplicable, in accordance with the assessment of the guardian of the individual’s best interests.

(c)  A guardian shall have the same rights as the individual to request, receive, examine, copy, and consent to the disclosure of medical and other health care information.

§ 3051.  LIMITS TO THE POWERS OF A MEDICAL GUARDIAN

(a)  A medical guardian shall have the authority to make decisions involving invasive and urgent health care only after petition to the probate court.  The petition must include verification from a clinician that the health care is urgent, and that a reasonable person would consent to the procedure.  The medical guardian may consent to the invasive and urgent health care no sooner than three days after filing the petition.  The petition and verification shall be provided to any interested parties known to the petitioner upon filing.

(b)  A medical guardian shall have the authority to make decisions regarding invasive and emergency health care immediately and shall submit a petition to the probate court, including verification from a clinician that the health care is an emergency, and that a reasonable person would consent to the procedure, no more than three days after the health care is provided.  The petition and verification shall be provided to any interested parties known to the petitioner upon filing.

(c)  A medical guardian shall have the authority to make decisions regarding highly invasive and urgent health care only after petition to the probate court.  The petition must include verification from two clinicians that the health care is urgent, and that a reasonable person would consent to the procedure.  The petition and verification shall be provided to any interested parties known to the petitioner upon filing.  If no objection is made to the court orally or in writing, the medical guardian shall automatically have the power to consent to the urgent, highly invasive health care procedure.  If an objection is made to the court orally or in writing by the individual subject to the petition or by an interested party, the court shall have an emergency hearing within two days.

(d)  A medical guardian shall have the authority to make decisions regarding highly invasive, emergency health care only after filing a petition with the probate court and after an emergency ex parte hearing to be held on the day of filing.  The petition must include verification from two clinicians that the health care to be provided is an emergency, and that a reasonable person would consent to the procedure.  The petitioner shall attempt to provide the petition and verification to the individual subject to the petition and any interested parties known to the petitioner at the time of filing.  The hearing may be by telephone or other electronic mechanism.  The court’s order may be made orally on the record.

(e)  A medical guardian may only make decisions regarding nonurgent invasive health care after 10 days’ notice and an emergency hearing in the probate court unless the health care is not objected to by the individual subject to the petition or by an interested party.

(f)  A medical guardian may only make decisions regarding nonurgent highly invasive health care after 15 days’ notice and an emergency hearing in the probate court unless the health care is not objected to by the individual subject to the petition or by an interested party.

§ 3052.  TERMINATION OR MODIFICATION OF MEDICAL

               GUARDIANSHIP

(a)  The individual subject to the petition or any interested party may file a motion for termination or modification of the medical guardianship.  Grounds for the termination or modification of the medical guardianship shall include:

(1)  that the individual subject to the petition has regained competence for health care decisions;

(2)  the death of the medical guardian;

(3)  the failure of the medical guardian to act in accord with an order of the court, the individual’s advance directive, or other expressed wishes regarding health care of the individual subject to the petition; or

(4)  a change in the capacity or suitability of the medical guardian for carrying out the powers and duties.

(b)  When the grounds for termination or modification are those listed in subdivisions (a)(2) through (4) of this section, the court may appoint a new medical guardian.

(c)  Notice and hearing on the motion shall proceed in the manner set forth in section 3044 of this title.

§ 3053.  APPEALS

Orders of the court issued pursuant to the provisions of this subchapter may be appealed in such manner as provided in chapter 107 of Title 12 and Rule 72 of the Vermont Rules of Civil Procedure; provided, however, that any order issued pursuant to this subchapter shall not be stayed during the pendency of an appeal except by order of a court of competent jurisdiction.

§ 3054.  VALIDITY OF PRIOR GUARDIANSHIPS

All guardianships providing authority to make health care decisions approved by the probate court prior to July 1, 2005 shall remain valid and in effect.  On the first anniversary date of such guardianship after July 1, 2005, the court which approved such guardianship shall send notice to each ward, the counsel of record, and an interested party of the ward, if known, advising them of the ward’s right to petition for termination or modification of the guardianship.

Sec. 2.  14 V.S.A. § 3069(b)(5) is amended to read:

(b)  A total guardian shall supervise the ward through the exercise of the following powers:

* * *

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title subchapter 10 of this chapter and any constitutional right of the ward to refuse treatment;

* * *

Sec. 3.  14 V.S.A. § 3074 is amended to read:

Nothing in this chapter shall give the guardian of a ward authority to place that person in a state school or hospital except pursuant to section 7601 et seq. of Title 18 subchapter 10 of this chapter or section 8801 et seq. of Title 18.

Sec. 4.  18 V.S.A. § 7626 is amended to read:

§ 7626.  DURABLE POWER OF ATTORNEY

(a)  If a person who is the subject of a petition filed under section 7624 of this title has executed a durable power of attorney in accordance with the provisions of subchapter 2 of chapter 111 of Title 18 for health care, the court shall suspend the hearing and enter an order pursuant to subsection (b) of this section, if the court determines that:

(1)  the person is refusing to accept psychiatric medication;

(2)  the person is not competent to make a decision regarding the proposed treatment; and

(3)  the decision regarding the proposed treatment is within the scope of the valid, duly executed durable power of attorney for health care.

(b)  An order entered under subsection (a) of this section shall authorize the commissioner to administer treatment to the person, including involuntary medication in accordance with the direction set forth in the durable power of attorney or provided by the health care agent acting within the scope of authority granted by the durable power of attorney.  If hospitalization is necessary to effectuate the proposed treatment, the court may order the person to be hospitalized.

(c)  In the case of a person subject to an order entered pursuant to subsection (a) of this section, and upon the certification by the person’s treating physician to the court that the person has received treatment or no treatment consistent with the durable power of attorney for health care for 45 days after the order under subsection (a) of this section has been entered, then the court shall reconvene the hearing on the petition.

(1)  If the court concludes that the person has experienced, and is likely to continue to experience, a significant clinical improvement in his or her mental state as a result of the treatment or nontreatment directed by the durable power of attorney for health care, or that the patient has regained competence, then the court shall enter an order denying and dismissing the petition.

(2) If the court concludes that the person has not experienced a significant clinical improvement in his or her mental state, and remains incompetent then the court shall consider the remaining evidence under the factors described in subdivisions 7627(c)(1)-(5) of this title and render a decision on whether the person should receive medication.

(a)  Any provision in an advance directive which purports to consent to an order of hospitalization or routine health care associated with an order shall be void.  All other provisions of an advance directive executed pursuant to chapter 111 of this title shall remain valid and enforceable.

(b)  For the purposes of this section:

(1)  “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 physician’s order, and services to assist in activities of daily living provided by a health care provider or in a health care facility.

(2)  “Routine health care” shall mean health care that is assumed to be the ordinary response to a course of illness or injury, including prevention, screening, diagnostic, outpatient, and inpatient care that is not urgent or an emergency.

Sec. 5.  REPEAL

14 V.S.A. § 3075 (consent for medical treatment) and 18 V.S.A. § 5274 (effect of appointment of guardian)  are repealed.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us