CSHB 336(HSS): "An Act relating to supported decision-making agreements to provide for decision-making assistance; and amending Rule 402, Alaska Rules of Evidence."
00 CS FOR HOUSE BILL NO. 336(HSS) 01 "An Act relating to supported decision-making agreements to provide for decision- 02 making assistance; and amending Rule 402, Alaska Rules of Evidence." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 13 is amended by adding a new chapter to read: 05 Chapter 56. Supported Decision-Making Agreements. 06 Sec. 13.56.010. Agreements authorized. (a) Except as provided in (b) and (c) 07 of this section, an adult may enter into a supported decision-making agreement. A 08 supported decision-making agreement allows an adult to receive decision-making 09 assistance with the adult's affairs from one or more other adults. 10 (b) The adult wanting to receive decision-making assistance may not enter 11 into a supported decision-making agreement unless the adult 12 (1) enters into the agreement voluntarily and without coercion or 13 undue influence; and 14 (2) understands the nature and effect of the agreement.
01 (c) An adult may not enter into a supported decision-making agreement under 02 this section if the agreement encroaches on the authority of a guardian or conservator 03 of the adult, unless the guardian or conservator approves in writing the adult entering 04 into the supported decision-making agreement. 05 Sec. 13.56.020. Eligibility of supporters. A supporter must be an adult, but 06 may not be 07 (1) an employer or employee of the principal, unless the employer or 08 employee is an immediate family member of the principal; 09 (2) a person who provides paid support services, except decision- 10 making assistance, directly to the principal, unless the person is an immediate family 11 member of the principal; or 12 (3) a person against whom a protective order or restraining order has 13 been entered by a court on request of or on behalf of the principal. 14 Sec. 13.56.030. Contents of agreement. (a) A supported decision-making 15 agreement must 16 (1) name one or more adults to provide a principal with decision- 17 making assistance; and 18 (2) describe the decision-making assistance that each supporter may 19 provide the principal. 20 (b) A supported decision-making agreement must contain a notice to third 21 parties that summarizes the rights and obligations of the supporter under this chapter 22 and expressly identifies this chapter. 23 (c) A supported decision-making agreement may 24 (1) name an alternate supporter to act in the place of a supporter and 25 the circumstances under which the alternate supporter may act; 26 (2) authorize a supporter to share information with another supporter 27 named in the agreement, including an alternate supporter. 28 Sec. 13.56.040. Requirements for validity. A supported decision-making 29 agreement is valid if 30 (1) the agreement is dated and in writing; 31 (2) the agreement satisfies the requirements of AS 13.56.010 -
01 13.56.030 and 13.56.050; 02 (3) the agreement has been signed by the principal and each named 03 supporter, including any alternate supporter, and the 04 (A) signing takes place in the presence of two witnesses who 05 also sign the agreement; or 06 (B) signatures of the principal and each named supporter, 07 including any alternate supporter, are notarized; and 08 (4) when the principal has a guardian or conservator, the principal has 09 notified the guardian or conservator of the agreement. 10 Sec. 13.56.050. Declarations by supporters. A supported decision-making 11 agreement must contain a separate declaration for each supporter that states the 12 supporter's relationship with the principal, states the willingness of the supporter to act 13 as a supporter for the principal, and indicates that the supporter acknowledges the 14 duties of a supporter under this chapter. Each declaration must be signed by the 15 supporter making the declaration. 16 Sec. 13.56.060. Witnesses. (a) Each witness under AS 13.56.040 must be an 17 adult who understands the means of communication used by the principal, except, if 18 there is an individual who understands the principal's means of communication present 19 to assist during the execution of the supported decision-making agreement, the 20 witnesses are not required to understand the means of communication used by the 21 principal. 22 (b) A witness under AS 13.56.040 may not be a supporter named in the 23 supported decision-making agreement or an employee or agent of a supporter named 24 in the supported decision-making agreement. 25 Sec. 13.56.070. Term of agreement. A supported decision-making agreement 26 may indicate the date it becomes effective and its duration. If the supported decision- 27 making agreement does not indicate the date it becomes effective, the supported 28 decision-making agreement becomes effective immediately. If a supported decision- 29 making agreement does not indicate its duration, the supported decision-making 30 agreement remains effective until terminated under AS 13.56.080. 31 Sec. 13.56.080. Termination of agreement. (a) A principal may at any time
01 terminate all or a portion of a supported decision-making agreement. A supporter may 02 at any time terminate all or a portion of the supporter's obligations under a supported 03 decision-making agreement, including the declaration of support described in 04 AS 13.56.050. 05 (b) A termination under (a) of this section must be in writing and signed, and 06 (1) the signing must take place in the presence of two witnesses who 07 also sign the termination; or 08 (2) the signature must be notarized. 09 (c) A principal or supporter terminating all or a portion of a supported 10 decision-making agreement shall notify, in person, by certified mail, or by electronic 11 means, the other party to the agreement that the agreement has been terminated. 12 (d) If all or a portion of a supported decision-making agreement is terminated 13 under this section and the termination is consistent with this section, the remainder of 14 the agreement remains in effect. 15 Sec. 13.56.090. Duties of supporter. A supporter shall act with the care, 16 competence, and diligence ordinarily exercised by individuals in similar 17 circumstances. 18 Sec. 13.56.100. Decision-making assistance of supporter. (a) Except as 19 limited by a supported decision-making agreement, a supporter may provide to a 20 principal the following decision-making assistance about the principal's affairs: 21 (1) assisting with making decisions, communicating decisions, and 22 understanding information about, options for, the responsibilities of, and the 23 consequences of decisions; 24 (2) accessing, obtaining, and understanding information that is relevant 25 to decisions necessary for the principal to manage the principal's affairs, including 26 medical, psychological, financial, and educational information, and medical treatment 27 records and other records; 28 (3) ascertaining the wishes and decisions of the principal, assisting in 29 communicating those wishes and decisions to other persons, and advocating to ensure 30 the implementation of the principal's wishes and decisions; and 31 (4) accompanying the principal and participating in discussions with
01 other persons when the principal is making decisions or attempting to obtain 02 information for decisions. 03 (b) Under (a)(2) of this section, a supporter may use the principal's dated 04 consent to assist the principal in obtaining protected health information under the 05 Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) or 06 educational records under 20 U.S.C. 1232g (Family Educational Rights and Privacy 07 Act of 1974). 08 Sec. 13.56.110. Prohibited activities. A supporter may not 09 (1) exert undue influence on the principal; 10 (2) make decisions for or on behalf of the principal; 11 (3) sign for the principal or provide an electronic signature of the 12 principal to a third party; 13 (4) obtain, without the consent of the principal, information that is not 14 reasonably related to matters with which the supporter may assist the principal under 15 the supported decision-making agreement; or 16 (5) use, without the consent of the principal, information acquired for a 17 purpose authorized by this chapter for a purpose other than assisting the principal to 18 make a decision under the supported decision-making agreement. 19 Sec. 13.56.120. Confidentiality, handling, and disposal of information. A 20 supporter shall keep the information collected by the supporter on behalf of the 21 principal under this chapter confidential, may not use the information for a use that is 22 not authorized by the principal, shall protect the information from unauthorized 23 access, use, or disclosure, and shall dispose of the information properly when 24 appropriate. 25 Sec. 13.56.130. Recognition of decisions and requests. A person shall 26 recognize a decision or request made or communicated with the decision-making 27 assistance of a supporter under this chapter as the decision or request of the principal 28 for the purposes of a provision of law, and the principal or supporter may enforce the 29 decision or request in law or equity on the same basis as a decision or request of the 30 principal. 31 Sec. 13.56.140. Limitation of liability. (a) A person who, in good faith, either
01 acts in reliance on an authorization in a supported decision-making agreement or 02 declines to honor an authorization in a supported decision-making agreement is not 03 subject to civil or criminal liability or to discipline for unprofessional conduct for 04 (1) complying with an authorization in a supported decision-making 05 agreement, if the person is complying based on an assumption that the underlying 06 supported decision-making agreement was valid when made and has not been 07 terminated under AS 13.56.080; 08 (2) declining to comply with an authorization in a supported decision- 09 making agreement if the person is declining based on actual knowledge that the 10 supported decision-making agreement is invalid or has been terminated under 11 AS 13.56.080; 12 (3) declining to comply with an authorization related to health care in a 13 supported decision-making agreement, if the person is declining because the action 14 proposed to be taken under the supported decision-making agreement is contrary to 15 the good faith medical judgment of the person or to a written policy of a health care 16 institution that is based on reasons of conscience. 17 (b) In this section, "good faith" means honesty in fact and the observance of 18 reasonable standards of fair dealing. 19 Sec. 13.56.150. Capability and capacity. (a) In the application of this chapter, 20 a decision that a principal is incapable of managing the principal's affairs may not be 21 based on the manner in which the principal communicates with others. 22 (b) An adult who enters into a supported decision-making agreement may act 23 without the decision-making assistance of the supporter. 24 (c) A person may not use the execution of a supported decision-making 25 agreement as evidence that the principal does not have capacity. 26 (d) In this chapter, a principal is considered to have capacity even if the 27 capacity is achieved by the principal receiving decision-making assistance. 28 Sec. 13.56.160. Principal's affairs. This chapter applies to decisions related to 29 the following affairs of a principal: 30 (1) monitoring health, obtaining, scheduling, implementing, and 31 coordinating health and support services, understanding health care information and
01 options, providing for care and comfort, and other health care and personal matters in 02 which the principal makes decisions about the principal's health care; 03 (2) managing income and assets and the use of income and assets for 04 clothing, support, care, comfort, education, shelter, and payment of other liabilities of 05 the principal; 06 (3) handling personal, health care, and financial matters that arise in 07 the course of daily living; 08 (4) monitoring information about the principal's support services, 09 including future necessary or recommended support services; 10 (5) living arrangements, including where and with whom the principal 11 wants to live; and 12 (6) working arrangements, including where the principal wants to 13 work. 14 Sec. 13.56.170. Support services. The following are considered support 15 services under this chapter: 16 (1) house repair, home cleaning, laundry, shopping, and providing 17 meals; 18 (2) transportation, accompanying a principal, and facilitating a 19 principal's written, oral, and electronic communication; 20 (3) nurse visitations and attendant care; 21 (4) provision of health care; 22 (5) physical and psychosocial assessments; 23 (6) financial assessments and advice on banking, taxes, loans, 24 investments, and management of real property; 25 (7) legal assessments and advice; 26 (8) education and educational assessments and advice; 27 (9) assistance with bathing, dressing, eating, range of motion, toileting, 28 transferring, ambulation, and other direct assistance with the activities of daily living; 29 (10) care planning; 30 (11) services that assist in maintaining the independence of a principal. 31 Sec. 13.56.190. Definitions. In this chapter, unless the context indicates
01 otherwise, 02 (1) "adult" means an individual who is 18 years of age or older; 03 (2) "affairs" means the affairs described in AS 13.56.160; 04 (3) "capacity" means the ability to understand and appreciate the 05 nature and consequences of a decision and the ability to reach and communicate an 06 informed decision; 07 (4) "conservator" means a person appointed a conservator under 08 AS 13.26.401 - 13.26.595 or a similar law of another state; 09 (5) "decision" means a decision relating to the affairs of a principal; 10 (6) "decision-making assistance" means the decision-making 11 assistance described in AS 13.56.100; 12 (7) "guardian" means a person appointed a guardian under 13 AS 13.26.201 - 13.26.316 or a similar law of another state; 14 (8) "immediate family member" means a spouse, child, sibling, parent, 15 grandparent, grandchild, stepparent, stepchild, or stepsibling; 16 (9) "person" means an individual, health care institution, health care 17 provider, corporation, partnership, limited liability company, association, joint 18 venture, government, governmental subdivision, governmental agency, governmental 19 instrumentality, public corporation, or another legal or commercial entity; 20 (10) "principal" means an adult who enters into a supported decision- 21 making agreement under this chapter to receive decision-making assistance; 22 (11) "supported decision-making agreement" means an agreement 23 authorized under AS 13.56.010; 24 (12) "supporter" means an adult who enters a supported decision- 25 making agreement and provides decision-making assistance; 26 (13) "support services" means the support services described in 27 AS 13.56.170. 28 Sec. 13.56.195. Short title. This chapter may be cited as the Supported 29 Decision-Making Agreements Act. 30 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 INDIRECT COURT RULE AMENDMENT. AS 13.56.150(c), added by sec. 1 of this 02 Act, has the effect of changing Rule 402, Alaska Rules of Evidence, by prohibiting the 03 execution of a supported decision-making agreement from being used as evidence of a 04 principal's incapacity. In this section, "principal" and "supported decision-making agreement" 05 have the meanings given in AS 13.56.190, added by sec. 1 of this Act. 06 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 CONDITIONAL EFFECT. AS 13.56.150(c), added by sec. 1 of this Act, takes effect 09 only if sec. 2 of this Act receives the two-thirds majority vote of each house required by art. 10 IV, sec. 15, Constitution of the State of Alaska.