SB 291: "An Act relating to living wills, do not resuscitate orders, anatomical gifts, and the care and treatment of persons with serious medical conditions."
00SENATE BILL NO. 291 01 "An Act relating to living wills, do not resuscitate orders, anatomical gifts, and 02 the care and treatment of persons with serious medical conditions." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 13.26.344(l) is amended to read: 05 (l) In the statutory form power of attorney, the language conferring general 06 authority with respect to health care services shall be construed to mean that, as to the 07 health care of the principal, whether to be provided in the state or elsewhere, the 08 principal authorizes the agent to 09 (1) have access to and disclose to others medical and related 10 information and records; 11 (2) consent or refuse to consent to medical care , including the 12 withholding or withdrawal under AS 18.12.093(b) of life-sustaining procedures, 13 or relief for the principal from pain [, BUT THE AGENT MAY NOT AUTHORIZE 14 THE TERMINATION OF LIFE-SUSTAINING PROCEDURES];
01 (3) take all steps necessary to enforce a properly executed declaration 02 under AS 18.12; 03 (4) take all steps necessary to enforce a properly executed declaration 04 under AS 47.30.950 - 47.30.980 unless the principal has provided that an attorney-in- 05 fact appointed under AS 47.30.950 - 47.30.980 shall have exclusive authority with regard to 06 mental health treatment and the attorney-in-fact appointed under AS 47.30.950 - 47.30.980 has 07 not withdrawn; 08 (5) consent or refuse to consent to the principal's psychiatric care, but 09 the consent does not authorize a voluntary commitment or placement in a mental 10 health treatment facility, electroconvulsive or electric-shock therapy, psychosurgery, 11 sterilization, or an abortion except that, if the principal has properly executed a 12 declaration under AS 47.30.950 - 47.30.980, the agent may consent to voluntary 13 commitment or placement in a mental health treatment facility and electroconvulsive 14 or electric-shock therapy if that consent is consistent with the wishes expressed in the 15 declaration under AS 47.30.950 - 47.30.980 and if the principal has not designated 16 another attorney-in-fact to have exclusive authority to make decisions regarding mental 17 health treatment; 18 (6) arrange for care or lodging of the principal in a hospital, nursing 19 home, or hospice; 20 (7) grant releases to health care professionals or health care institutions; 21 (8) hire, discharge, or compensate an attorney, accountant, expert 22 witness, or assistant when the agent considers the action to be desirable for the proper 23 execution of the powers described in this subsection; and 24 (9) do any other act or acts that the principal can do through an agent 25 and that the agent considers desirable or necessary to provide for the principal's 26 physical or mental well-being. 27 * Sec. 2. AS 18.12.010(a) is amended to read: 28 (a) A competent person who is at least 18 years of age [OLD] may execute 29 a declaration at any time directing that life-sustaining procedures or artificially 30 administered nutrition and hydration be withheld or withdrawn from that person. 31 The declaration is given operative effect only if it has been medically determined
01 that the declarant is in a serious medical condition [THE DECLARANT'S 02 CONDITION IS DETERMINED TO BE TERMINAL] and that the declarant is not 03 able to make treatment decisions, except that, if the declaration contains an anatomical 04 gift under AS 13.50, the gift takes effect on [UPON] the death of the person. The 05 declaration shall be signed by the declarant, or another person at the declarant's 06 direction. If signed by another person at the declarant's direction, the signer shall sign 07 in the presence of two persons or a person who is qualified to take acknowledgments 08 under AS 09.63.010. A person may not charge a fee for preparing a declaration. 09 * Sec. 3. AS 18.12.010(c) is repealed and reenacted to read: 10 (c) A declaration may, but need not, be in the following form: 11 LIVING WILL DECLARATION 12 YOU DO NOT HAVE TO FILL OUT AND SIGN THIS FORM 13 Part A. Important Information About This Declaration. 14 This is an important legal document. It can control critical decisions 15 about your health care. Before signing, consider the following facts: 16 (1) You have the right to name a person to direct your health 17 care when you cannot do so. This person is called your "agent." You can do 18 this by executing a health care power of attorney as defined in Part B, Item (G) 19 of this document. 20 (2) This form is valid only if you sign it voluntarily. If you do 21 not want a declaration, you do not have to sign this form. 22 (3) Unless you have limited the duration of this declaration, it 23 will not expire. If you have set an expiration date and you become unable to 24 direct your health care before that date, this declaration will not expire until 25 you are able to make those decisions again. 26 (4) You may revoke this document at any time. Notify your 27 agent and your health care provider of the revocation. 28 (5) Despite this document, you have the right to decide your 29 own health care as long as you are able to do so. If there is anything in this 30 document that you do not understand, ask a lawyer to explain it to you. 31 (6) You may cross out words that do not express your wishes
01 or add words that better express your wishes. Witnesses or a person qualified 02 to take acknowledgments under AS 09.63.010 must sign where indicated. 03 Print your name, birth date, and address here: 04 Name _____________________________________________ 05 Birth date __________________________________________ 06 Address ____________________________________________ 07 Unless revoked or suspended, this declaration will continue for 08 INITIAL ONE: 09 _______ My entire life; 10 _______ Other period ( _______ years). 11 Part B. Health Care Instructions. 12 NOTE: In filling out these instructions, keep the following in mind: 13 (1) the term "as my physician recommends" means that you 14 want your physician to try life support if your physician believes it could be 15 helpful and then discontinue it if it is not helping your health condition or 16 symptoms; 17 (2) "life support" and "tube feeding" are defined as follows: 18 (A) "life support" refers to any medical means 19 for maintaining life, including procedures, devices, and 20 medications; if you refuse life support, you will still get routine 21 measures to keep you clean and comfortable; 22 (B) "tube feeding" is food and water supplied 23 artificially by medical device; if you refuse tube feeding, you 24 should understand that malnutrition, dehydration, and death will 25 probably result; 26 (3) you will get care for your comfort and cleanliness no matter 27 what choices you make; 28 (4) you may either give specific instructions by filling out Items 29 (A) - (D) below, or you may use the general instructions provided by Item (E). 30 Here are my desires about my health care if my doctor and another 31 knowledgeable doctor determine that I am in a medical condition described
01 below: 02 (A) Close to Death. If I am close to death and 03 life support would only postpone the moment of my death 04 INITIAL ONE: 05 _______ I want to receive tube feeding; 06 _______ I want tube feeding only as my physician recommends; 07 _______ I DO NOT WANT tube feeding. 08 INITIAL ONE: 09 _______ I want any other life support that may apply; 10 _______ I want life support only as my physician recommends; 11 _______ I WANT NO life support. 12 (B) Permanently Unconscious. If I am 13 unconscious and it is very unlikely that I will ever become 14 conscious again 15 INITIAL ONE: 16 _______ I want to receive tube feeding; 17 _______ I want tube feeding only as my physician recommends; 18 _______ I DO NOT WANT tube feeding. 19 INITIAL ONE: 20 _______ I want any other life support that may apply; 21 _______ I want life support only as my physician recommends; 22 _______ I WANT NO life support. 23 (C) Advanced Progressive Illness. If I have a 24 progressive illness that will be fatal and the illness is in an 25 advanced stage and I am consistently and permanently unable to 26 communicate by any means, to swallow food and water safely, 27 to care for myself, and to recognize my family and other people, 28 and if it is very unlikely that my condition will substantially 29 improve 30 INITIAL ONE: 31 _______ I want to receive tube feeding;
01 _______ I want tube feeding only as my physician recommends; 02 _______ I DO NOT WANT tube feeding. 03 INITIAL ONE: 04 _______ I want any other life support that may apply; 05 _______ I want life support only as my physician recommends; 06 _______ I WANT NO life support. 07 (D) Extraordinary Suffering. If life support 08 would not help my medical condition and would make me suffer 09 permanent and severe pain, 10 INITIAL ONE: 11 _______ I want to receive tube feeding; 12 _______ I want tube feeding only as my physician recommends; 13 _______ I DO NOT WANT tube feeding 14 INITIAL ONE: 15 _______ I want any other life support that may apply; 16 _______ I want life support only as my physician recommends; 17 _______ I WANT NO life support. 18 (E) General Instructions. 19 INITIAL IF THIS APPLIES: 20 _______ I do not want my life to be prolonged by life 21 support. I also do not want tube feeding as life support. I want 22 my doctors to allow me to die naturally if my doctor and 23 another knowledgeable doctor determine I am in any of the 24 medical conditions listed in Items (A) - (D) above. 25 (F) Additional Conditions or Instructions. 26 _______________________________________________________________________________________________________. 27 (G) Other Documents. A "health care power of 28 attorney" is any document you may have signed under the 29 power of attorney laws of Alaska to appoint an agent to make 30 health care decisions for you. 31 INITIAL ONE:
01 _______ I have previously signed a health care power of 02 attorney; I want it to remain in effect unless I appoint another 03 agent after signing the health care power of attorney. 04 _______ I have a health care power of attorney and I 05 REVOKE IT; 06 _______ I DO NOT have a health care power of 07 attorney. 08 (H) Organ Donations. Notwithstanding the other 09 provisions of this declaration, if I have donated an organ under 10 this declaration or by another method, and if I am in a hospital 11 when a do not resuscitate order is to be implemented for me, I 12 do not want the do not resuscitate order to take effect until the 13 donated organ can be evaluated to determine if the organ is 14 suitable for donation. 15 OPTIONAL: In the event of my death, I donate the following 16 part(s) of my body for the purposes identified in AS 13.50.020: 17 Tissue: 18 _______ Eyes 19 _______ Bone and connective tissue 20 _______ Skin 21 _______ Heart 22 _______ Other: _________________________________ 23 Limitations: ____________________________________ 24 Organ: 25 _______ Heart 26 _______ Kidney(s) 27 _______ Liver 28 _______ Lung(s) 29 _______ Pancreas 30 _______ Other: _________________________________ 31 I designate (name of physician) to carry out the appropriate procedure(s)
01 for removing or transplanting the body part(s) identified above. 02 Signed this ___________ day of __________________, __________. 03 Signature______________________________ 04 Place_________________________________ 05 If another person is to sign for the declarant at the declarant's 06 direction, the person signing for the declarant must sign in the presence 07 of two persons or a person who is qualified to take acknowledgments 08 under AS 09.63.010. The witness form below may be used for the two 09 witnesses. The acknowledgment form below may be used for the 10 person qualified to take acknowledgments. 11 WITNESS FORM 12 Witness _______________________________________ 13 Address _______________________________________ 14 Witness _______________________________________ 15 Address _______________________________________ 16 ACKNOWLEDGMENT FORM 17 State of _______________________________________ 18 Judicial District 19 The foregoing instrument was acknowledged before me this 20 (date) by (name of person who acknowledged). 21 22 Signature of Person Taking 23 Acknowledgment 24 25 Title or Rank 26 27 Serial Number, if any. 28 * Sec. 4. AS 18.12.010 is amended by adding new subsections to read: 29 (e) Unless the period of time that a declaration is to be effective is limited by 30 the terms of the declaration, the declaration continues in effect until the declarant dies 31 or the declaration is revoked under AS 13.50.050 or AS 18.12.020, whichever event
01 occurs first. 02 (f) Notwithstanding (e) of this section, if the declarant is an incapable person 03 at the expiration of the term of the declaration, the declaration continues in effect until 04 the declarant is no longer an incapable person or the declarant dies. 05 * Sec. 5. AS 18.12.030 is amended to read: 06 Sec. 18.12.030. Recording determination of [TERMINAL] condition and 07 contents of declaration. When an attending physician who has been provided a copy 08 of a declaration determines that the declarant is in a serious medical [TERMINAL] 09 condition, the physician shall record that determination and the contents of the 10 declaration in the declarant's medical record. 11 * Sec. 6. AS 18.12.040(b) is repealed and reenacted to read: 12 (b) Persons caring for a patient from whom life-sustaining procedures or 13 artificially administered nutrition and hydration are withheld or withdrawn shall 14 provide care to ensure the patient's comfort and cleanliness, including 15 (1) body hygiene, including oral hygiene; 16 (2) reasonable efforts to offer food and fluids orally; 17 (3) medication, positioning, warmth, appropriate lighting, and other 18 measures to relieve pain and suffering; and 19 (4) privacy and respect for the dignity and humanity of the patient. 20 * Sec. 7. AS 18.12.080(a) is repealed and reenacted to read: 21 (a) Nothing in this chapter is intended to condone, authorize, or approve mercy 22 killing or to permit an affirmative or deliberate act or omission to end life, other than 23 to allow the natural process of dying. The withholding or withdrawing of a life- 24 sustaining procedure or of artificially administered nutrition and hydration under this chapter 25 does not, for any purpose, constitute a suicide, assisting a suicide, mercy killing, or assisted 26 homicide. 27 * Sec. 8. AS 18.12 is amended by adding new sections to read: 28 Sec. 18.12.093. Withholding or withdrawal of life-sustaining procedures 29 from incapable persons. (a) Life-sustaining procedures that would otherwise be 30 applied to an incapable person who does not have an applicable valid declaration may 31 be withheld or withdrawn under (b) - (f) of this section if the incapable person is
01 medically determined to be in a serious medical condition. 02 (b) An appointed agent of an incapable person who does not have an 03 applicable valid declaration, or a health care agent of the incapable person if the 04 incapable person does not have an appointed agent, may decide whether to withhold 05 or withdraw life-sustaining procedures from the incapable person. 06 (c) If an incapable person does not have an appointed agent or a health care 07 agent, life-sustaining procedures may be withheld or withdrawn upon the direction and 08 under the supervision of the person's attending physician, but only after the physician 09 has consulted with concerned family and close friends of the person. 10 (d) Upon the direction and under the supervision of the attending physician, 11 life-sustaining procedures may be withheld or withdrawn under (b) of this section from 12 an incapable person by the person's appointed agent or health care agent only after the 13 family and close friends of the incapable person have been consulted. 14 (e) Before withholding or withdrawing life-sustaining procedures from a person 15 under this section, the person's attending physician must determine that the conditions 16 of this section have been met. 17 (f) In this section, 18 (1) "appointed agent" means a person appointed an attorney in fact 19 under a health care power of attorney; 20 (2) "health care agent" means the first of the following persons, in the 21 following order, who can be located by reasonable effort of the health care provider 22 and who is willing to serve as the health care agent for the incapable person: 23 (A) the incapable person's guardian if the guardian is authorized 24 to make health care decisions for the incapable person; 25 (B) the spouse of the incapable person; 26 (C) an adult designated by the persons listed in (A), (B), and 27 (D) - (G) of this paragraph who can be located by reasonable effort of the 28 health care provider unless one of the other persons listed in this paragraph 29 objects to the designation; in this subparagraph, "persons listed" means, for the 30 purposes of (D) and (F) of this paragraph, the majority required by (D) and 31 (F) of this paragraph;
01 (D) a majority of the incapable person's children who are adults 02 and who can be located by reasonable effort of the health care provider; 03 (E) a parent of the incapable person; 04 (F) a majority of the incapable person's siblings who are adults 05 and who can be located by reasonable effort of the health care provider; or 06 (G) an adult relative or adult friend of the incapable person. 07 Sec. 18.12.095. Consent to artificially administered nutrition and 08 hydration. (a) If a person does not have a declaration that clearly states whether or 09 not the person wants artificially administered nutrition and hydration, it is presumed 10 that, if the person is temporarily or permanently an incapable person, the person has 11 consented to artificially administered nutrition and hydration, except for hyper 12 alimentation, necessary to sustain life, unless 13 (1) while a capable adult, the person clearly and specifically stated that 14 the person would have refused artificially administered nutrition and hydration in a 15 similar situation; 16 (2) administration of the nutrition and hydration is not medically 17 feasible or would itself cause severe, intractable, or long-lasting pain; 18 (3) the person is in a state of permanent unconsciousness; 19 (4) the person has a terminal condition; or 20 (5) the person has a progressive illness that will be fatal and is in an 21 advanced stage, the person is consistently and permanently unable to communicate by 22 any means, to swallow food and water safely, to care for the person's self, and to 23 recognize the person's family and other people, and it is very unlikely that the person's 24 condition will substantially improve. 25 (b) If a person has a declaration that clearly states that the person does not 26 want artificially administered nutrition and hydration or if the presumption established 27 by (a) of this section has been overcome under (a)(1) - (5) of this section, artificially 28 administered nutrition and hydration may be withheld or withdrawn. 29 (c) Before withholding or withdrawing artificially administered nutrition and 30 hydration from a person under this section, the person's attending physician must 31 determine that the conditions of this section have been met.
01 (d) The medical circumstances described in (a)(2) - (5) of this section must be 02 medically determined to overcome the presumption established by this section. 03 * Sec. 9. AS 18.12.100(9) is amended to read: 04 (9) "life-sustaining procedure" means a medical procedure , a 05 pharmaceutical, a medical device, or an intervention that maintains life by 06 sustaining, restoring, or supplanting a vital function, but does not include routine 07 care necessary to sustain patient cleanliness and comfort or artificially 08 administered nutrition and hydration [, WHEN ADMINISTERED TO A 09 QUALIFIED PATIENT, WILL SERVE ONLY TO PROLONG THE DYING 10 PROCESS]; 11 * Sec. 10. AS 18.12.100(11) is amended to read: 12 (11) "qualified patient" means a patient who has executed a declaration 13 in accordance with this chapter and who has been medically determined [BY THE 14 ATTENDING PHYSICIAN] to be in a serious medical [TERMINAL] condition; 15 * Sec. 11. AS 18.12.100(12) is repealed and reenacted to read: 16 (12) "terminal condition" means a health condition in which death is 17 imminent regardless of treatment, and where the application of life-sustaining 18 procedures or the artificially administered nutrition and hydration serves only to 19 postpone the moment of death of the patient. 20 * Sec. 12. AS 18.12.100 is amended by adding new paragraphs to read: 21 (13) "artificially administered nutrition and hydration" means a medical 22 intervention providing food and water by tube, mechanical device, or other medically 23 assisted method, but does not include the usual and typical methods of providing 24 nutrition and hydration, such as the provision of nutrition and hydration by cup, hand, 25 bottle, drinking straw, or eating utensil; 26 (14) "health care power of attorney" means a power of attorney under 27 AS 13.26.332 that includes authority regarding health care services; 28 (15) "incapable" means lacking the ability to make and communicate 29 health care decisions to health care providers, including communication through 30 persons familiar with the patient's manner of communication if those persons are 31 available;
01 (16) "medically determined" means determined by two physicians, one 02 of whom must be the attending physician, who have personally examined the person; 03 (17) "permanently unconscious" means a condition where a person 04 completely lacks an awareness of self and external environment, without a reasonable 05 possibility of a return to a conscious state, and the condition has been confirmed by 06 a neurological specialist who is an expert in the examination of unresponsive persons; 07 (18) "serious medical condition" means 08 (A) a terminal condition; 09 (B) a permanently unconscious condition; 10 (C) a condition in which administration of life-sustaining 11 procedures would not benefit the patient's medical condition and would cause 12 permanent and severe pain; or 13 (D) a progressive illness that will be fatal and is in an advanced 14 stage; the person is consistently and permanently unable to communicate by 15 any means, to swallow food and water safely, to care for the person's self, and 16 to recognize the person's family and other people; and it is very unlikely that 17 the person's condition will substantially improve. 18 * Sec. 13. AS 18.12.080(f) is repealed.