03/28/2003 01:47 PM House JUD
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= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 28, 2003
1:47 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
DEPARTMENT OF LAW: BRIEFING ON LITIGATION
- HEARD [See the 1:05 p.m. minutes for this date]
HOUSE BILL NO. 25
"An Act relating to health care decisions, including do not
resuscitate orders and the donation of body parts, and to powers
of attorney relating to health care, including the donation of
body parts; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 18
"An Act relating to the liability of parents and legal guardians
of minors who destroy property."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 25
SHORT TITLE:HEALTH CARE SERVICES DIRECTIVES
SPONSOR(S): REPRESENTATIVE(S)WEYHRAUCH
Jrn-Date Jrn-Page Action
01/21/03 0038 (H) PREFILE RELEASED (1/10/03)
01/21/03 0038 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0038 (H) HES, JUD, FIN
02/13/03 (H) HES AT 3:00 PM CAPITOL 106
02/13/03 (H) Heard & Held
02/13/03 (H) MINUTE(HES)
02/27/03 (H) HES AT 3:00 PM CAPITOL 106
02/27/03 (H) Heard & Held
02/27/03 (H) MINUTE(HES)
03/06/03 (H) HES AT 3:00 PM CAPITOL 106
03/06/03 (H) Moved CSHB 25(HES) Out of
Committee
03/06/03 (H) MINUTE(HES)
03/10/03 0488 (H) HES RPT CS(HES) NT 7DP
03/10/03 0488 (H) DP: GATTO, WOLF, HEINZE,
SEATON,
03/10/03 0488 (H) CISSNA, KAPSNER, WILSON
03/10/03 0488 (H) FN1: ZERO(HSS)
03/10/03 0488 (H) REFERRED TO JUDICIARY
03/26/03 (H) JUD AT 1:00 PM CAPITOL 120
03/26/03 (H) <Bill Hearing Postponed to
3/28> -- Meeting Canceled --
03/28/03 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BRUCE WEYHRAUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 25.
PAUL MALLEY, President
Aging With Dignity
Tallahassee, Florida
POSITION STATEMENT: Provided comments during discussion of HB
25.
EDIE ZUKAUSKAS, Staff Attorney
Disability Law Center of Alaska, Inc.
Anchorage, Alaska
POSITION STATEMENT: Explained the proposed amendments to HB 25.
ROBERT B. BRIGGS, Staff Attorney
Disability Law Center of Alaska, Inc.
Juneau, Alaska
POSITION STATEMENT: Assisted with the explanation of the
proposed amendments to HB 25.
JENS SAAKVITNE, Executive Director
Life Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 25.
RONALD A. COWAN, Long Term Care Ombudsman
Alaska Mental Health Trust Authority
Department of Revenue (DOR)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 25 as amended.
MARGUERITE STETSON, Executive Council Member for Advocacy
AARP Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 25.
CHARLOTTE DAVIS
Fairbanks Alaska
POSITION STATEMENT: Testified in support of HB 25 and suggested
some changes.
RICHARD RAINERY, Executive Director
Alaska mental Health Board
Office of the Commissioner
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 25 as amended.
SHELLY OWENS, Health Program Manager
Community Health & Emergency Medical Services
Division of Public Health
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 25 and responded
to questions.
SIOUX PLUMMER DOUGLAS
Juneau Hospice Foundation;
Juneau End of Life Task Force
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 25.
MARIE DARLIN, Coordinator
Capital City Task Force
AARP
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 25.
SAM TRIVETTE, President
Retired Public Employees of Alaska (RPEA)
Alaska Public Employees Association/American Federation of
Teachers (APEA/AFT)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 25.
ACTION NARRATIVE
TAPE 03-25, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting back to order at 1:47 p.m. Representatives
McGuire, Holm, Ogg, Gara, and Gruenberg were present at the call
back to order. Representatives Anderson and Samuels arrived as
the meeting was in progress. [For the briefing by the
Department of Law, see the 1:05 p.m. minutes for this date.]
HB 25 - HEALTH CARE SERVICES DIRECTIVES
Number 0053
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 25, "An Act relating to health care decisions,
including do not resuscitate orders and the donation of body
parts, and to powers of attorney relating to health care,
including the donation of body parts; and providing for an
effective date." [The latest version was CSHB 25(HES).]
Number 0059
REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature,
sponsor, noted that during the 22nd legislature, a version of HB
25, then sponsored by Representative Bill Hudson, passed the
House without opposition, and that this year, with changes made
in the House Health, Education and Social Services Standing
Committee, along with provisions regarding what has come to be
known as the "Five Wishes," HB 25 now includes provisions
pertaining to the Uniform Anatomical Gift Act. He relayed that
his interest in this legislation stems from the fact that
although his father had previously established power of attorney
and health care directives for himself, he did not tell his wife
where he kept that documentation; as a consequence, no one knew
what his preferences for end-of-life treatment were, and thus he
ultimately lingered in a very poor state for more than a year.
REPRESENTATIVE WEYHRAUCH suggested that many people don't end
their lives they way they would wish simply because they haven't
given clear directives regarding their end-of-life decisions.
He noted that the Five Wishes grew out of a national movement.
House Bill 25 incorporates provisions regarding advanced health
care directives into one place in statute: for example, the
organ donation program, the living will program, the "Comfort
One Do-Not-Resuscitate (DNR) Program", and "expanded durable
power of attorney forms." The language in HB 25 attempts to lay
out an extensive, comprehensive approach to all end-of-life
matters such as organ donations, mental health treatment,
disposition of the body, and other issues. He mentioned that
there are some proposed amendments in members' packets.
Number 0391
REPRESENTATIVE ANDERSON moved to adopt CSHB 25(HES) as the
working document. There being no objection, CSHB 25(HES) was
before the committee.
Number 0398
PAUL MALLEY, President, Aging With Dignity, relayed that Aging
With Dignity is the organization which created and distributes
the Five Wishes advanced directive that has become somewhat of a
national model for effective advanced care planning. The Five
Wishes advanced directive document is now used by more than 2
million Americans and is being distributed by approximately
5,000 organizations including hospitals; hospices; places of
worship; [private] companies that distribute it to employees;
the U.S. Department of State, the U.S. Department of Justice,
and the Food and Drug Administration (FDA), to their employees;
the State of Florida, to its employees; and other large
employers.
MR. MALLEY noted that Aging With Dignity was founded by Jim
Towey in 1996, and that Mr. Towey was legal counsel for 12 years
to Mother Teresa of Calcutta and did volunteer work in her homes
for the dying in India and Mexico, where he saw how important it
is to care for the dying with the utmost dignity. Mr. Malley
said that Mr. Towey contrasted the care those people received
with how the dying are treated in America, where oftentimes they
are not receiving the kind of care at the end of life that they
would wish.
MR. MALLEY relayed that the Five Wishes document was written
with three goals in mind. The first goal was to make it easy to
use and understand, so that people could sit down in their
living rooms and fill it out with their families. The second
goal was to include more than just medical issues, because
national research has shown that when people are asked about
care at the end of life, they say things like, "I want to be at
home if that's possible" or "I want to have my family with me"
or "I don't want to be in pain," and similar types of personal-
care preferences. In contrast, in the past, the only question
people have commonly been asked is whether they wish to be on
life-support treatment, which is a question that many people
simply don't wish to talk about. And the third goal was to
facilitate communication. He mentioned that situations similar
to the one that Representative Weyhrauch described happen
frequently, adding that facilitating communication is possible
when working with a document that is written in layman's terms.
MR. MALLEY noted that when Aging with Dignity introduced the
Five Wishes document, it had the support and guidance of the
Robert Wood Johnson Foundation, and had legal counsel from the
American Bar Association's Commission on [Law and Aging], which
looked at the existing advanced-care-planning laws of all 50
states. At that time, there were 33 states that allowed
residents to put their wishes in their own words instead of a
"state-written mandatory form" for a durable power of attorney
for health care, or for their living will. Currently, there are
15 states, including Alaska, that require residents to put their
wishes on a "state-written form."
Number 0737
MR. MALLEY pointed out that HB 25 would change that, with the
benefit being that Alaska residents will be able to say, in
their own words, what's important to them if they get sick and
can no longer speak for themselves. This is a trend that's
picking up speed across the country, he noted; in just a few
years, three states have actually made the change - California,
Hawaii, and West Virginia - and several other states are now
considering legislation to do so - Alaska, Texas, Indiana, Ohio,
and Wisconsin. The changes proposed by HB 25 have proven
effective and helpful, he remarked.
MR. MALLEY, in conclusion, shared the following experience:
Last month I was in New England and had just given a
presentation, and a woman, I could see her coming up
to me from the back of the crowd, had a tear in her
eye. And she said that it had been a year since her
husband had passed away. And she said for the last 28
days of his life he was in a coma, and he'd filled out
his Five Wishes document before. And they had his
Five Wishes document sitting by his bedside. And she
said, "this was wonderful because all of our family -
his sons, his daughters - his doctors, his nurses
could come in and pick up that document and know
exactly what he wanted."
She said: "My family wanted so badly to be a good
care giver to him but we didn't know what to do. But
we looked in Five Wishes and found out that he wanted
to have pictures of his grandkids nearby, and that he
wanted to have certain music played; that he wanted us
to be there with him as much as we could. And we were
able to do something because he expressed that."
"Then, when the doctors told us that he was not likely
to recover and we had to make a decision about life-
support treatment," this woman said that she went to
her son, and her son said, "Absolutely not; we cannot
do this; we cannot remove Dad from life-support
treatment because it will kill him." And she said,
"Here's this document that your father filled out, and
he showed us his Five Wishes." And the son looked at
it and said, "This is in Dad's handwriting, this is
what he wanted, it's not our decision to make, it was
Dad's decision, and he made it, so this is what we
need to do."
Number 0847
MR. MALLEY continued:
So the family was able to make the decision, and they
were at peace with it. That same day, as they were
looking through his Five Wishes -- one of the options
in Five Wishes that you have to choose is that you
want your family members to make peace with each
other, if that's possible, before your death; it's not
always possible, but it's something to think about and
to talk about. Well, this man had put a big star next
to that. And his two sons saw that. These were two
sons who hadn't spoken in five years. And that day
that their father died, they spoke for the first time,
and for the ... year since [then they] have been great
friends. And that speaks to the human element in
what's involved at the end of life - the conversations
that need to happen that so often don't - that by
passing this legislation, you are encouraging and
promoting in the homes and the families in Alaska.
So, I thank you for that.
REPRESENTATIVE GARA thanked Mr. Malley for his work, adding that
"this is akin to a civil rights movement that you've been
working on."
Number 0965
EDIE ZUKAUSKAS, Staff Attorney, Disability Law Center of Alaska,
Inc., explained that the Disability Law Center is mandated by
the federal government to protect and advocate for individuals
with disabilities, and its obligations are to pursue
administrative, legal, and other appropriate remedies that are
necessary to protect the rights of these individuals with
disabilities, and to protect the individuals from abuse and/or
neglect. She said that she is the "mental health attorney" and
has the specific duty of working on behalf of individuals with
mental illness.
MS. ZUKAUSKAS said that she became involved with HB 25 as soon
as she heard that the "previous mental health treatment bill was
being replaced," because she needed to ensure that individuals
with mental illness retained their hard-earned protections while
receiving the benefits of "this new bill." She then listed the
entities and individuals she has worked with toward that end,
and mentioned that in addition to the amendments that were
adopted in the House Health, Education and Social Services
Standing Committee, she has provided Representative Weyhrauch
with other suggested amendments for the House Judiciary Standing
Committee to consider.
MS. ZUKAUSKAS turned members' attention to proposed Amendment 1,
which read [original punctuation provided]:
At page 3-4. insert (b)(1) Except in the case of
mental illness, an individual.......
(2) In the case of mental illness, a declaration
may be revoked in whole or in part at any time by
the principal if the principal is neither
incapable nor incompetent. A revocation is
effective when a capable, competent, principal
communicates the revocation to the attending
physician or other provider. The attending
physician or other provider shall note the
revocation as part of the principal's medical
record. The authority of a named agent and an
alternative agent named in the declaration
continues in effect as long as the declaration
appointing the agent is in effect or until the
agent has withdrawn.
MS. ZUKAUSKAS mentioned that proposed Amendment 1 refers to
revocation in so far as it affects individuals with mental
illness, and that "incompetent" is included because it is part
of the legal definition. On the reasoning behind proposed
Amendment 1, she relayed that consumers feel that this advanced
directive is not effective at all because of the possibility of
coercion, intimidation, or undue influence when they are
incapacitated.
REPRESENTATIVE GARA sought clarification that proposed Amendment
1 is intended to amend proposed Sec. 13.52.020.
MS. ZUKAUSKAS said it is.
REPRESENTATIVE GRUENBERG surmised, then, that proposed Amendment
1 would be inserted on page 4, line 3.
MS. ZUKAUSKAS agreed, adding that proposed Amendment 1 would
create a subsection (b)(1) and a subsection (b)(2).
Number 1290
CHAIR McGUIRE stated, "Representative Samuels has moved
Amendment 1" [text provided previously]. She indicated that
there being no objection, Amendment 1 was adopted.
MS. ZUKAUSKAS turned members' attention to proposed Amendment 2,
which read [original punctuation provided]:
At page 28, line 4, delete "guardian or conservator"
and insert "person"
MS. ZUKAUSKAS indicated that proposed Amendment 2 would clarify
the definition of "guardian".
REPRESENTATIVE GRUENBERG remarked that "guardian" is already
defined, though differently, in AS 13.26.
CHAIR McGUIRE offered that Ms. Zukauskas is proposing to
eliminate that existing definition.
REPRESENTATIVE GRUENBERG argued that that is not what Ms.
Zukauskas is proposing, and opined that proposed Amendment 2
would simply be adding a different definition. He pointed out
that the existing definition of "guardian", in AS 13.26, has a
very specific meaning as it relates to the "incapacitated
persons' chapter of the Uniform Probate Code." He noted that
with regard to the definition in proposed AS 13.52.390, the same
term is being used in a slightly different way. He offered his
concern that this might create confusion because it will then
become a question of whether one is "a 13.26 guardian or a 13.52
guardian." He mentioned that a guardian is a person who's a
guardian of another person - one who makes decisions for the
person, whereas a conservator is the person who manages the
affairs of the estate.
Number 1479
ROBERT B. BRIGGS, Staff Attorney, Disability Law Center of
Alaska, Inc., explained that the definitions in proposed Sec.
13.52.390 relate only to terms as they would be used with regard
to the health care decisions referred to in proposed AS 13.52.
He posited that proposed Amendment 2 would address the very
concern expressed by Representative Gruenberg, because it will
limit the definition to, "a judicially appointed person having
the authority to make a health care decision for an individual".
He acknowledged that perhaps this concept could be solidified by
cross-referencing the definition in AS 13.26.
REPRESENTATIVE GRUENBERG surmised that they might just want to
do that. He mentioned that under AS 13.26, an institution can
be appointed as a conservator, and that under Title 1, a person
can include a company.
MR. BRIGGS offered to work on a definition that will encompass
all of the entities that are capable of [qualifying as a
guardian with regard to proposed AS 13.52].
REPRESENTATIVE GRUENBERG remarked that this might also include
the Office of Public Advocacy (OPA).
CHAIR McGUIRE asked Representative Weyhrauch whether he would
prefer for the committee to go ahead and adopt proposed
Amendment 2 and he could work out the technical details later,
or whether he would prefer for the committee to set aside
proposed Amendment 2 until that issue is resolved.
[Representative Weyhrauch replied from the audience; therefore,
his answer was not audible on tape.]
CHAIR McGUIRE, in response to Representative Weyhrauch's answer,
asked for a motion to adopt Amendment 2 [text provided
previously].
Number 1585
AN UNIDENTIFIED COMMITTEE MEMBER stated, "So moved."
CHAIR McGUIRE asked whether there were any objections to
Amendment 2. There being no objection, Amendment 2 was adopted
"with the caveat that [Representative Weyhrauch would work on
the details of the definition further, with those interested]."
MS. ZUKAUSKAS turned members' attention to proposed Amendment 3,
which read:
At page 29, lined 3-4, insert after line 3, (20)
"incompetent" means that, in the opinion of the court
in a guardianship proceeding under AS 13.26, in the
opinion of two physicians that include a psychiatrist,
or in the opinion of a physician and a professional
mental health clinician, a person's ability to receive
and evaluate information effectively or communicate
decisions is impaired to such an extent that the
person currently lacks the capacity to make mental
health treatment decisions.
At page 29, line 9, insert after line 9, (23) "mental
health treatment" means electroconvulsive treatment,
treatment with psychotropic medication, and admission
to and retention in a facility for a period not to
exceed 17 days.
MS. ZUKAUSKAS relayed that proposed Amendment 3 would clarify
the meaning of "incompetent" as it applies in the revocation
provision, and would clarify what is included in the definition
of "mental health treatment".
Number 1672
REPRESENTATIVE SAMUELS made a motion to adopt Amendment 3.
REPRESENTATIVE GRUENBERG asked a question concerning the term
"electroconvulsive treatment".
MS. ZUKAUSKAS remarked that what had once been called "electric-
shock" is now called "electroconvulsive" or ECT -
electroconvulsive therapy. She added that as far as she knows,
ECT is not used in Alaska; rather, the language is being added
to the definition under the assumption that advanced health care
directives will be reciprocal in participating states.
REPRESENTATIVE GRUENBERG asked whether conforming changes
regarding the term "electroconvulsive" need to be made elsewhere
in statute.
MS. ZUKAUSKAS indicated that if such were the case, she would
have no objections.
Number 1741
REPRESENTATIVE SAMUELS made a motion to amend Amendment 3, to
add the phrase, "renumber accordingly". There being no
objection, Amendment 3 was amended.
REPRESENTATIVE GRUENBERG said he had no objections to Amendment
3 [as amended], but asked that research be done about whether
conforming changes regarding the term "electroconvulsive" will
need to occur to other statutes.
Number 1765
CHAIR McGUIRE noted there were no further objections to
Amendment 3, as amended. Therefore Amendment 3, as amended, was
adopted.
MS. ZUKAUSKAS turned members' attention to proposed Amendment 4,
which read [original punctuation provided]:
At page 4, delete lines 20-29, and insert:
Sec. 13.52.030. Decisions by surrogate. (a)
Except in the case of mental health treatment, a
surrogate may make a health care decision for a
patient who is an adult or emancipated minor if an
agent or guardian has not been appointed, or the agent
or guardian is not reasonably available, if the
patient has been determined to lack capacity by the
primary physician;
(b) A surrogate may make a decision regarding
mental health treatment for a patient who is an adult
or emancipated minor if an agent or guardian has not
been appointed, or the agent or guardian is not
reasonably available, the mental health treatment is
needed on an emergency basis, and the patient has been
determined to lack capacity by
(1) two physicians that include a
psychiatrist; or
(2) one physician and a professional mental
health clinician"
Reletter accordingly subsections beginning on page 4,
lines 30 and following.
MS. ZUKAUSKAS said that proposed Amendment 4 would define the
limits of authority for a surrogate, adding that it will carve
out an exception showing that a surrogate may not make any
[mental] health care treatment decisions and yet will still
enable individuals to take advantage of the "death with dignity
that's intended by this bill."
[On members' copies of proposed Amendment 4, a slanted line ran
across the proposed new subsection (b); after some discussion,
it was determined that that mark was an error created during the
copying process, and that proposed Amendment 4 does stipulate
that the remainder of proposed Sec. 13.52.030 would be
relettered. Thus proposed Amendment 4 is as provided above.]
Number 1890
REPRESENTATIVE SAMUELS made a motion to adopt Amendment 4.
MR. BRIGGS added that Amendment 4 will clarify when a surrogate
can act if the issue relates to mental health treatment.
Number 1966
CHAIR McGUIRE noted there were no objections to Amendment 4.
Therefore, Amendment 4 was adopted.
Number 2003
JENS SAAKVITNE, Executive Director, Life Alaska, after noting
that Life Alaska is a tissue and organ donor program, said
simply that he supports HB 25 and is available for questions.
Number 2030
RONALD A. COWAN, Long Term Care Ombudsman, Alaska Mental Health
Trust Authority, Department of Revenue (DOR), said simply that
he supports HB 25 with its amendments and is available for
questions.
Number 2085
MARGUERITE STETSON, Executive Council Member for Advocacy, AARP
Alaska, said that she supports HB 25, stating that the advanced
directives - the Five Wishes - are important. A discussion
regarding a person's wishes should take place within a family,
she added. A number of years ago, the AARP had a program to
encourage people to have advanced directives, and at that time,
she relayed, she and her husband talked about their feelings and
wrote down on paper, using the advanced directive format, what
they wanted to happen. She remarked that most hospitals now ask
a person whether he/she has an advanced directive.
MS. STETSON said that when her husband passed away suddenly last
year while they were vacationing in Arizona, the first thing the
doctor in the emergency room asked her was whether her husband
had an advanced directive. Fortunately, her husband did, and
she said that it was important that she knew he did not want to
be placed on life support when the medical outcome indicated
there was no hope; she also noted that because her husband had
filled out an advanced directive, she knew that he wanted to be
cremated. These were all difficult decisions that had to be
made within 24 hours, in a state where they did not reside. She
mentioned that her advice to anyone is that an advanced
directive, or Five Wishes, should be discussed and a form should
be completed by everyone.
Number 2139
CHARLOTTE DAVIS said that she is a public health nurse "with the
elders," and is speaking as a private citizen. She complimented
everyone that has been working on the bill, acknowledged that it
has taken quite a long time to get it where it currently is, and
relayed that folks in Fairbanks have been following the bill's
progress. She mentioned that in November 2002, there was a
study performed by Last Acts that graded the state of Alaska as
an "E" - the lowest grade - on its advanced directives policies,
not because it didn't have certain programs, but because it did
not have a single, comprehensive advanced directive that would
enable people to express things in their own way. She said that
HB 25 is an important bill and she supports it.
MS. DAVIS explained that she teaches classes to those who are
interested in "doing advanced directives" and helping elders
from different cultures complete their advanced directives. She
mentioned that there are some things which are confusing to
people that HB 25 will help clear up. However, she added, she
does have some questions and comments about certain areas of the
bill. She said, "First of all, when we came out with a living
will, that still creates quite a bit of confusion between living
will and regular will"; thus, she added, she really likes "the
'advanced directive for health care' title."
MS. DAVIS said that confusion still exists between a power of
attorney, a durable power of attorney for health care, and a
power of attorney [for health care], warning that complications
may arise where "those" aren't spelled out clearly. She turned
to page 2, lines 13-14, and noted that subsection (b) says in
part, "An adult or emancipated minor may execute a power of
attorney for health care"; meanwhile, in the definition section
on page 26, lines 20-21, it says, "'advanced health care
directive' means an individual instruction or a power of
attorney for health care". She offered the suggestion that
subsection (b) be changed to read, "An adult or emancipated
minor may execute an individual instruction or a power of
attorney for health care decision", in order to clarify this
point as much as possible and move away from the terms "power of
attorney" and "power of attorney for health care".
MS. DAVIS then turned to language beginning on page 2, line 30,
and noted that according to this portion of HB 25, one of at
least two individuals used as a witness for a power of attorney
for health care may be related to the principal by blood,
marriage, or adoption, or may be entitled to a portion of the
principal's estate. However, on the sample form contained in HB
25, on page 25, both statements to be signed - one by each
witness - contain language stipulating that the witness is not
related by blood, marriage, or adoption, nor, to the best of the
witness's knowledge, entitled to a portion of the principal's
estate. She indicated that this conflict [ought to be
corrected].
MS. DAVIS remarked that because there are a variety of forms
being used, and because many people fill out these different
forms without assistance, she is sometimes reluctant to give
credence to the advanced health care directives of an elder when
the only witnesses signing the form are family members. In
response to a request by Chair McGuire, Ms. Davis provided her
phone number so that Representative Weyhrauch could speak
further with her after the meeting about the issues she raised.
TAPE 03-25, SIDE B
Number 2328
REPRESENTATIVE ANDERSON turned to language in Section 2
regarding unclaimed bodies. He asked Mr. Saakvitne of Life
Alaska whether he would have any objections to an amendment that
would allow the state to cremate all unclaimed bodies.
MR. SAAKVITNE said he would have no objection to such an
amendment, since the time period during which it is possible to
harvest viable organs and tissue is extremely short, rendering
unclaimed bodies unsuitable for that purpose.
Number 2299
RICHARD RAINERY, Executive Director, Alaska Mental Health Board,
Office of the Commissioner, Department of Health & Social
Services (DHSS), indicated simply that the [Alaska Mental Health
Board] supports HB 25 as amended.
Number 2263
SHELLY OWENS, Health Program Manager, Community Health &
Emergency Medical Services, Division of Public Health,
Department of Health & Social Services (DHSS), said that both
the division and the department support HB 25. She mentioned
that the heart of the bill is the Five Wishes program, which
expands Alaska's living will directive. She relayed that the
consolidation of Alaska's laws regarding advanced health care
directives is based on the structure of the Uniform Health-Care
Decisions Act (UHCDA) promulgated by the National Conference of
Commissioners on Uniform State Laws (NCCUSL). She said that her
division has been tracking HB 25 to ensure that the provisions
of the "Comfort One Do-Not-Resuscitate (DNR) Program" have been
incorporated in the bill.
Number 2193
REPRESENTATIVE GRUENBERG directed attention to page 17, line 12.
He asked Ms. Owens whether she would interpret the phrase "do
not resuscitate orders" to mean an order coming from a person or
from a court.
MS. OWENS explained that by definition, a do not resuscitate
(DNR) order is an order from a physician.
CHAIR McGUIRE pointed out that a DNR order is defined on page
27, line 27: "(11) 'do not resuscitate order' means a
directive from a licensed physician that emergency
cardiopulmonary resuscitation should not be administered to a
qualified patient".
REPRESENTATIVE GRUENBERG asked whether the language on page 17,
beginning on line 4, would give an agent the authority to
override a physician's DNR order if the agent's authority has
not been limited by the person/patient.
MS. OWENS, after noting that the language Representative
Gruenberg is referring to is located in the sample form, posited
that if there is a conflict between the form and statute,
statute would prevail. She said that she is assuming that an
agent's ability to disapprove a DNR order refers to a DNR order
that comes into effect after a person has lost the capacity to
express his/her preferences. She said that her interpretation
of "disprove" as used in the form does not mean the same as
"revoke" as used on page 8 in proposed AS 13.52.060(f). She
remarked that not even a physician can revoke a DNR order except
at the request of the patient. She acknowledged that perhaps
the term "disapprove" may not be the best term.
REPRESENTATIVE GRUENBERG said he is still unclear whether the
language "approve or disapprove" allows an agent to override a
physician's DNR order if the patient has not specifically
limited the agent's authority. He suggested that this is an
issue that still needs to be clarified.
Number 1901
SIOUX PLUMMER DOUGLAS, Juneau Hospice Foundation; Juneau End of
Life Task Force, testified in support of HB 25. She explained
the Juneau End of Life Task Force instigated the introduction of
this legislation almost three years ago. She said that HB 25
has improved upon that original legislation, making it more
comprehensive, and clearer and easier to understand. She opined
that HB 25 is good public policy that will help Alaskans help
themselves, and urged swift passage of HB 25. She relayed that
during the past four years, several members of her immediate
family passed away, adding that personal experience has shown
her how much a lack of information can complicate the last days
of one's life.
Number 1778
MARIE DARLIN, Coordinator, Capital City Task Force, AARP,
relayed that AARP is in support of HB 25 and has been very
involved with this legislation since its inception. She urged
the committee to pass HB 25 this year. She opined that HB 25 is
needed and will help people as they make their end-of-life
decisions. She added that the AARP is pleased with the
amendments because they will help clarify some issues.
Number 1713
SAM TRIVETTE, President, Retired Public Employees of Alaska
(RPEA), Alaska Public Employees Association/American Federation
of Teachers (APEA/AFT), after mentioning that health care is one
of the RPEA's primary issues, relayed that from personal
experience, he knows that not being able to go to one place in
statute to find all the answers regarding end-of-life decisions
can make things very difficult for surviving family members. He
mentioned that he has friends that deal with these issues on a
regular basis, that they have reviewed HB 25, and that they
support it. He also said that the RPEA strongly supports HB 25.
MR. COWAN, turning back to the issue of whether an agent has the
authority - absent any limitations placed on the agent by the
principal - to disapprove of a DNR order, remarked that he
interprets the language in question to mean that the agent
would, indeed, have the authority. He said that he is
encouraged by language on page 3, beginning on line 18, which
stipulates that the agent is to make health care decisions in
accordance with the principal's instructions, and that absent
those instructions, the agent must make a decision that is in
the principal's best interest based upon the agent's knowledge
of the principal. He opined that this is important because,
according to his experience in working with the elderly, there
have been a number of times when physicians have taken it upon
themselves to issue DNR orders without anybody's input because
they believed that the person's health situation was such that
he/she may not have a very good quality of life were he/she to
survive. He said that he likes the protection afforded by the
agent being able to override a physician's DNR order when that
order is issued without the authority of the principal.
REPRESENTATIVE ANDERSON referred to page 3, lines 28-30, which
reads: "(k) An advance health care directive is valid for
purposes of this chapter if it complies with this chapter or if
it was executed in compliance with the laws of the state where
it was executed". He asked if this language means that Alaska
would be bound by the advanced directives of other states.
REPRESENTATIVE WEYHRAUCH, in response, referred to Ms. Stetson's
experience when her husband died while they were on vacation in
[Arizona].
CHAIR McGUIRE announced that HB 25 would be held over for the
purpose of allowing the sponsor to research some of the issues
raised.
ADJOURNMENT
Number 1401
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:00 p.m.
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