CSSB 291(JUD): "An Act relating to living wills, do not resuscitate orders, anatomical gifts, and the care and treatment of persons with serious medical conditions."
00CS FOR SENATE BILL NO. 291(JUD) 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with regard to 06 mental health treatment and the attorney-in-fact appointed under AS 47.30.950 - 47.30.980 has 07 not withdrawn; 08 (5) consent or refuse to consent to the principal's psychiatric care, but 09 the consent does not authorize a voluntary commitment or placement in a mental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 for 19 maintaining life, including procedures, devices, and medications; if you 20 refuse life support, you will still get routine measures to keep you clean 21 and comfortable; 22 (B) "tube feeding" is food and water supplied artificially 23 by medical device; if you refuse tube feeding, you should understand 24 that malnutrition, dehydration, and death will result; 25 (3) you will get care for your comfort and cleanliness no matter 26 what choices you make; 27 (4) you may either give specific instructions by filling out Items 28 (A) - (D) below, or you may use the general instructions provided by Item (E). 29 Here are my desires about my health care if my doctor and another 30 knowledgeable doctor determine that I am in a medical condition described 31 below:
01 (A) Close to Death. If I am close to death and life 02 support would only postpone the moment of my death 03 INITIAL ONE: 04 _______ I want to receive tube feeding; 05 _______ I want tube feeding only as my physician recommends; 06 _______ I DO NOT WANT tube feeding. 07 INITIAL ONE: 08 _______ I want any other life support that may apply; 09 _______ I want life support only as my physician recommends; 10 _______ I WANT NO life support. 11 (B) Permanently Unconscious. If I am unconscious and 12 it is very unlikely that I will ever become conscious again 13 INITIAL ONE: 14 _______ I want to receive tube feeding; 15 _______ I want tube feeding only as my physician recommends; 16 _______ I DO NOT WANT tube feeding. 17 INITIAL ONE: 18 _______ I want any other life support that may apply; 19 _______ I want life support only as my physician recommends; 20 _______ I WANT NO life support. 21 (C) Advanced Progressive Illness. If I have a 22 progressive illness that will be fatal and the illness is in an advanced 23 stage and I am consistently and permanently unable to communicate by 24 any means, to swallow food and water safely, to care for myself, and 25 to recognize my family and other people, and if it is very unlikely that 26 my condition will substantially improve 27 INITIAL ONE: 28 _______ I want to receive tube feeding; 29 _______ I want tube feeding only as my physician recommends; 30 _______ I DO NOT WANT tube feeding. 31 INITIAL ONE:
01 _______ I want any other life support that may apply; 02 _______ I want life support only as my physician recommends; 03 _______ I WANT NO life support. 04 (D) Extraordinary Suffering. If life support would not 05 help my medical condition and would make me suffer permanent and 06 severe pain, 07 INITIAL ONE: 08 _______ I want to receive tube feeding; 09 _______ I want tube feeding only as my physician recommends; 10 _______ I DO NOT WANT tube feeding 11 INITIAL ONE: 12 _______ I want any other life support that may apply; 13 _______ I want life support only as my physician recommends; 14 _______ I WANT NO life support. 15 (E) General Instructions. 16 INITIAL IF THIS APPLIES: 17 _______ I do not want my life to be prolonged by life support. 18 I also do not want tube feeding as life support. I want my doctors to 19 allow me to die naturally if my doctor and another knowledgeable 20 doctor determine I am in any of the medical conditions listed in Items 21 (A) - (D) above. 22 (F) Additional Conditions or Instructions. 23 ___________________________________________________________________________________________________________________. 24 (G) Other Documents. A "health care power of 25 attorney" is any document you may have signed under the power of 26 attorney laws of Alaska to appoint an agent to make health care 27 decisions for you. 28 INITIAL ONE: 29 _______ I have previously signed a health care power of 30 attorney; I want it to remain in effect unless I appoint another agent 31 after signing the health care power of attorney.
01 _______ I have a health care power of attorney and I REVOKE 02 IT; 03 _______ I DO NOT have a health care power of attorney. 04 (H) Organ Donations. Notwithstanding the other 05 provisions of this declaration, if I have donated an organ under this 06 declaration or by another method, and if I am in a hospital when a do 07 not resuscitate order is to be implemented for me, I do not want the do 08 not resuscitate order to take effect until the donated organ can be 09 evaluated to determine if the organ is suitable for donation. 10 OPTIONAL: In the event of my death, I donate the following 11 part(s) of my body for the purposes identified in AS 13.50.020: 12 _______ Any needed organ or tissue 13 Tissue: 14 _______ Eyes 15 _______ Bone and connective tissue 16 _______ Skin 17 _______ Heart 18 _______ Other: _________________________________ 19 Limitations: ____________________________________ 20 Organ: 21 _______ Heart 22 _______ Kidney(s) 23 _______ Liver 24 _______ Lung(s) 25 _______ Pancreas 26 _______ Other: _________________________________ 27 Signed this ___________ day of __________________, __________. 28 Signature______________________________ 29 Place_________________________________ 30 If another person is to sign for the declarant at the declarant's 31 direction, the person signing for the declarant must sign in the presence
01 of two persons or a person who is qualified to take acknowledgments 02 under AS 09.63.010. The witness form below may be used for the two 03 witnesses. The acknowledgment form below may be used for the 04 person qualified to take acknowledgments. 05 WITNESS FORM 06 Witness _______________________________________ 07 Address _______________________________________ 08 Witness _______________________________________ 09 Address _______________________________________ 10 ACKNOWLEDGMENT FORM 11 State of _______________________________________ 12 Judicial District 13 The foregoing instrument was acknowledged before me this 14 (date) by (name of person who acknowledged). 15 16 Signature of Person Taking 17 Acknowledgment 18 19 Title or Rank 20 21 Serial Number, if any. 22 * Sec. 4. AS 18.12.010 is amended by adding new subsections to read: 23 (e) Unless the period of time that a declaration is to be effective is limited by 24 the terms of the declaration, the declaration continues in effect until the declarant dies 25 or the declaration is revoked under AS 13.50.050 or AS 18.12.020, whichever event 26 occurs first. 27 (f) Notwithstanding (e) of this section, if the declarant is an incapable person 28 at the expiration of the term of the declaration, the declaration continues in effect until 29 the declarant is no longer an incapable person or the declarant dies. 30 * Sec. 5. AS 18.12.030 is amended to read: 31 Sec. 18.12.030. Recording determination of [TERMINAL] condition and
01 contents of declaration. When an attending physician who has been provided a copy 02 of a declaration determines that the declarant is in a serious medical [TERMINAL] 03 condition, the physician shall record that determination and the contents of the 04 declaration in the declarant's medical record. 05 * Sec. 6. AS 18.12.040(b) is repealed and reenacted to read: 06 (b) Persons caring for a patient from whom life-sustaining procedures or 07 artificially administered nutrition and hydration are withheld or withdrawn shall 08 provide care to ensure the patient's comfort and cleanliness, including 09 (1) body hygiene, including oral hygiene; 10 (2) reasonable efforts to offer food and fluids orally; 11 (3) medication, positioning, warmth, appropriate lighting, and other 12 measures to relieve pain and suffering; and 13 (4) privacy and respect for the dignity and humanity of the patient. 14 * Sec. 7. AS 18.12.080(a) is repealed and reenacted to read: 15 (a) Nothing in this chapter is intended to condone, authorize, or approve mercy 16 killing or to permit an affirmative or deliberate act or omission to end life, other than 17 to allow the natural process of dying. The withholding or withdrawing of a life- 18 sustaining procedure or of artificially administered nutrition and hydration under this chapter 19 does not, for any purpose, constitute a suicide, assisting a suicide, mercy killing, or assisted 20 homicide. 21 * Sec. 8. AS 18.12 is amended by adding new sections to read: 22 Sec. 18.12.093. Withholding or withdrawal of life-sustaining procedures 23 from incapable persons. (a) Life-sustaining procedures that would otherwise be 24 applied to an incapable person who does not have an applicable valid declaration may 25 be withheld or withdrawn under (b) - (f) of this section if the incapable person is 26 medically determined to be in a serious medical condition. 27 (b) An appointed agent of an incapable person who does not have an 28 applicable valid declaration, or a health care agent of the incapable person if the 29 incapable person does not have an appointed agent, may decide whether to withhold 30 or withdraw life-sustaining procedures from the incapable person. 31 (c) If an incapable person does not have an appointed agent or a health care
01 agent, life-sustaining procedures may be withheld or withdrawn upon the direction and 02 under the supervision of the person's attending physician, but only after the physician 03 has consulted with concerned family and close friends of the person. 04 (d) Upon the direction and under the supervision of the attending physician, 05 life-sustaining procedures may be withheld or withdrawn under (b) of this section from 06 an incapable person by the person's appointed agent or health care agent only after the 07 family and close friends of the incapable person have been consulted. 08 (e) Before withholding or withdrawing life-sustaining procedures from a person 09 under this section, the person's attending physician must determine that the conditions 10 of this section have been met. 11 (f) In this section, 12 (1) "appointed agent" means a person appointed an attorney in fact 13 under a health care power of attorney; 14 (2) "health care agent" means the first of the following persons, in the 15 following order, who can be located by reasonable effort of the health care provider 16 and who is willing to serve as the health care agent for the incapable person: 17 (A) the incapable person's guardian if the guardian is authorized 18 to make health care decisions for the incapable person; 19 (B) the spouse of the incapable person; 20 (C) an adult designated by the persons listed in (A), (B), and 21 (D) - (G) of this paragraph who can be located by reasonable effort of the 22 health care provider unless one of the other persons listed in this paragraph 23 objects to the designation; in this subparagraph, "persons listed" means, for the 24 purposes of (D) and (F) of this paragraph, the majority required by (D) and 25 (F) of this paragraph; 26 (D) a majority of the incapable person's children who are adults 27 and who can be located by reasonable effort of the health care provider; 28 (E) a parent of the incapable person; 29 (F) a majority of the incapable person's siblings who are adults 30 and who can be located by reasonable effort of the health care provider; or 31 (G) an adult relative or adult friend of the incapable person.
01 Sec. 18.12.095. Consent to artificially administered nutrition and 02 hydration. (a) If a person does not have a declaration that clearly states whether or 03 not the person wants artificially administered nutrition and hydration, it is presumed 04 that, if the person is temporarily or permanently an incapable person, the person has 05 consented to artificially administered nutrition and hydration, except for hyper 06 alimentation, necessary to sustain life, unless 07 (1) while a capable adult, the person clearly and specifically stated that 08 the person would have refused artificially administered nutrition and hydration in a 09 similar situation; 10 (2) administration of the nutrition and hydration is not medically 11 feasible or would itself cause severe, intractable, or long-lasting pain; 12 (3) the person is in a state of permanent unconsciousness; 13 (4) the person has a terminal condition; or 14 (5) the person has a progressive illness that will be fatal and is in an 15 advanced stage, the person is consistently and permanently unable to communicate by 16 any means, to swallow food and water safely, to care for the person's self, and to 17 recognize the person's family and other people, and it is very unlikely that the person's 18 condition will substantially improve. 19 (b) If a person has a declaration that clearly states that the person does not 20 want artificially administered nutrition and hydration or if the presumption established 21 by (a) of this section has been overcome under (a)(1) - (5) of this section, artificially 22 administered nutrition and hydration may be withheld or withdrawn. 23 (c) Before withholding or withdrawing artificially administered nutrition and 24 hydration from a person under this section, the person's attending physician must 25 determine that the conditions of this section have been met. 26 (d) The medical circumstances described in (a)(2) - (5) of this section must be 27 medically determined to overcome the presumption established by this section. 28 * Sec. 9. AS 18.12.100(9) is amended to read: 29 (9) "life-sustaining procedure" means a medical procedure , a 30 pharmaceutical, a medical device, or an intervention that maintains life by 31 sustaining, restoring, or supplanting a vital function, but does not include routine
01 care necessary to sustain patient cleanliness and comfort or artificially 02 administered nutrition and hydration [, WHEN ADMINISTERED TO A 03 QUALIFIED PATIENT, WILL SERVE ONLY TO PROLONG THE DYING 04 PROCESS]; 05 * Sec. 10. AS 18.12.100(11) is amended to read: 06 (11) "qualified patient" means a patient who has executed a declaration 07 in accordance with this chapter and who has been medically determined [BY THE 08 ATTENDING PHYSICIAN] to be in a serious medical [TERMINAL] condition; 09 * Sec. 11. AS 18.12.100(12) is repealed and reenacted to read: 10 (12) "terminal condition" means a health condition in which death is 11 imminent regardless of treatment, and where the application of life-sustaining 12 procedures or the artificially administered nutrition and hydration serves only to 13 postpone the moment of death of the patient. 14 * Sec. 12. AS 18.12.100 is amended by adding new paragraphs to read: 15 (13) "artificially administered nutrition and hydration" means a medical 16 intervention providing food and water by tube, mechanical device, or other medically 17 assisted method, but does not include the usual and typical methods of providing 18 nutrition and hydration, such as the provision of nutrition and hydration by cup, hand, 19 bottle, drinking straw, or eating utensil; 20 (14) "health care power of attorney" means a power of attorney under 21 AS 13.26.332 that includes authority regarding health care services; 22 (15) "incapable" means lacking the ability to make and communicate 23 health care decisions to health care providers, including communication through 24 persons familiar with the patient's manner of communication if those persons are 25 available; 26 (16) "medically determined" means determined by two physicians, one 27 of whom must be the attending physician, who have personally examined the person; 28 (17) "permanently unconscious" means a condition where a person 29 completely lacks an awareness of self and external environment, without a reasonable 30 possibility of a return to a conscious state, and the condition has been confirmed by 31 a neurological specialist who is an expert in the examination of unresponsive persons;
01 (18) "serious medical condition" means 02 (A) a terminal condition; 03 (B) a permanently unconscious condition; 04 (C) a condition in which administration of life-sustaining 05 procedures would not benefit the patient's medical condition and would cause 06 permanent and severe pain; or 07 (D) a progressive illness that will be fatal and is in an advanced 08 stage; the person is consistently and permanently unable to communicate by 09 any means, to swallow food and water safely, to care for the person's self, and 10 to recognize the person's family and other people; and it is very unlikely that 11 the person's condition will substantially improve. 12 * Sec. 13. AS 18.12.080(f) is repealed.