Bill Text: WV HB4035 | 2022 | Regular Session | Introduced
Bill Title: Remove the persistent vegetative state from the living will
Spectrum: Moderate Partisan Bill (Republican 6-1)
Status: (Introduced - Dead) 2022-01-12 - To House Judiciary [HB4035 Detail]
Download: West_Virginia-2022-HB4035-Introduced.html
WEST virginia legislature
2022 regular session
Introduced
House Bill 4035
By Delegates Rohrbach, D Jefferies, Keaton, Lovejoy, G. Ward, Rowan and Jennings
[Introduced; Referred
to the Committee on the]
A BILL to amend and reenact §16-30-3 and §16-30-4 of the Code of West Virginia, 1931, as amended, all relating to health care decisions; defining terms; revising forms of a living will, medical power of attorney, and combined medical power of attorney and living will and specific provisions; providing clarifying language regarding the effect of signing a living will on the availability of medically administered food and fluids; requiring oral food and fluids be provided as desired and tolerated; providing that forms executed prior to effective date of this bill remain in full force and effect; and providing for effective date.
Be it enacted by the Legislature of West Virginia:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-3. Definitions.
For the purposes of this article:
(a) “Actual
knowledge” means the possession of information of the person’s wishes
communicated to the health care provider orally or in writing by the person,
the person’s medical power of attorney representative, the person’s health care
surrogate, or other individuals resulting in the health care provider’s
personal cognizance of these wishes. Constructive notice and other forms of
imputed knowledge are not actual knowledge.
(b) “Adult” means a person who is 18 years of age or
older, an emancipated minor who has been established as such pursuant to the
provisions of §49-4-115 of this code, or a mature minor.
(c) “Advanced nurse practitioner” means a registered
nurse with substantial theoretical knowledge in a specialized area of nursing
practice and proficient clinical utilization of the knowledge in implementing
the nursing process, and who has met the further requirements of the West
Virginia Board of Examiners for Registered Professional Nurses rule, advanced
practice registered nurse, 19 CSR 7, who has a mutually agreed upon association
in writing with a physician, and has been selected by or assigned to the person
and has primary responsibility for treatment and care of the person.
(d) “Attending physician” means the physician selected by
or assigned to the person who has primary responsibility for treatment and care
of the person and who is a licensed physician. If more than one physician
shares that responsibility, any of those physicians may act as the attending
physician under this article.
(e) “Capable adult” means an adult who is physically and
mentally capable of making health care decisions and who is not considered a
protected person pursuant to the provisions of Chapter 44A of this code.
(f) “Close friend” means any adult who has exhibited
significant care and concern for an incapacitated person who is willing and
able to become involved in the incapacitated person’s health care and who has
maintained regular contact with the incapacitated person so as to be familiar
with his or her activities, health, and religious and moral beliefs.
(g) “Death” means a finding made in accordance with
accepted medical standards of either: (1) The irreversible cessation of
circulatory and respiratory functions; or (2) the irreversible cessation of all
functions of the entire brain, including the brain stem.
(h) “Guardian” means a person appointed by a court
pursuant to the provisions of Chapter 44A of this code who is
responsible for the personal affairs of a protected person and includes a
limited guardian or a temporary guardian.
(i) “Health care decision” means a decision to give, withhold,
or withdraw informed consent to any type of health care, including, but not
limited to, medical and surgical treatments, including life-prolonging
interventions, psychiatric treatment, nursing care, hospitalization, treatment
in a nursing home or other facility, home health care, and organ or tissue
donation.
(j) “Health care facility” means a facility commonly
known by a wide variety of titles, including, but not limited to, hospital,
psychiatric hospital, medical center, ambulatory health care facility,
physicians’ office and clinic, extended care facility operated in connection
with a hospital, nursing home, a hospital extended care facility operated in
connection with a rehabilitation center, hospice, home health care, and other
facility established to administer health care in its ordinary course of
business or practice.
(k) “Health care provider” means any licensed physician,
dentist, nurse, physician’s assistant, paramedic, psychologist, or other person
providing medical, dental, nursing, psychological, or other health care
services of any kind.
(l) “Incapacity” means the inability because of physical
or mental impairment to appreciate the nature and implications of a health care
decision, to make an informed choice regarding the alternatives presented, and
to communicate that choice in an unambiguous manner.
(m) “Life-prolonging intervention” means any medical
procedure or intervention that, when applied to a person, would serve to
artificially prolong the dying process. or maintain the person in a
persistent vegetative state Life-prolonging intervention includes, among
other things, nutrition and hydration administered intravenously or through a
feeding tube. The term “life-prolonging intervention” does not include the
administration of medication or the performance of any other medical procedure
considered necessary to provide comfort or to alleviate pain.
(n) “Living will” means a written, witnessed advance
directive governing the withholding or withdrawing of life-prolonging
intervention, voluntarily executed by a person in accordance with the requirements
of §16-30-4 of this code.
(o) “Mature minor” means a person, less than 18 years of
age, who has been determined by a qualified physician, a qualified
psychologist, or an advanced nurse practitioner to have the capacity to make
health care decisions.
(p) “Medical information” or “medical records” means and
includes without restriction any information recorded in any form of medium
that is created or received by a health care provider, health care facility,
health plan, public health authority, employer, life insurer, school, or
university or health care clearinghouse that relates to the past, present, or
future physical or mental health of the person, the provision of health care to
the person, or the past, present, or future payment for the provision of health
care to the person.
(q) “Medical power of attorney representative” or
“representative” means a person, 18 years of age or older, appointed by another
person to make health care decisions pursuant to the provisions of
§16-30-6 of this code or similar act of another state and recognized as valid
under the laws of this state.
(r) “Parent” means a person who is another person’s
natural or adoptive mother or father or who has been granted parental rights by
valid court order and whose parental rights have not been terminated by a court
of law.
(s)"Persistent
vegetative state" means an irreversible state as diagnosed by the
attending physician or a qualified physician in which the person has intact
brain stem function but no higher cortical function and has neither
self-awareness or awareness of the surroundings in a learned manner
(t) “Person” means an individual, a corporation, a
business trust, a trust, a partnership, an association, a government, a
governmental subdivision or agency, or any other legal entity.
(u) “Physician orders for scope of treatment (POST) form”
means a standardized form containing orders by a qualified physician that
details a person’s life-sustaining wishes as provided by §16-30-25 of this
code.
(v) “Principal” means a person who has executed a living
will, or medical power of attorney, or combined medical power of
attorney and living will.
(w) “Protected person” means an adult who, pursuant to the
provisions of chapter 44A of this code, has been found by a court, because
of mental impairment, to be unable to receive and evaluate information
effectively or to respond to people, events, and environments to an extent that
the individual lacks the capacity to: (1) Meet the essential requirements for
his or her health, care, safety, habilitation, or therapeutic needs without the
assistance or protection of a guardian; or (2) manage property or financial
affairs to provide for his or her support or for the support of legal
dependents without the assistance or protection of a conservator.
(x) “Qualified physician” means a physician licensed to
practice medicine who has personally examined the person.
(y) “Qualified psychologist” means a psychologist
licensed to practice psychology who has personally examined the person.
(z) “Surrogate decisionmaker” or “surrogate” means an
individual 18 years of age or older who is reasonably available, is willing to
make health care decisions on behalf of an incapacitated person, possesses the
capacity to make health care decisions, and is identified or selected by the
attending physician or advanced nurse practitioner in accordance with the
provisions of this article as the person who is to make those decisions in
accordance with the provisions of this article.
(aa) “Terminal condition” means an incurable or
irreversible condition as diagnosed by the attending physician or a qualified
physician for which the administration of life-prolonging intervention will
serve only to prolong the dying process.
§16-30-4. Executing a living will, or medical power of attorney,
or combined medical power of attorney and living will.
(a) Any competent adult may
execute at any time a living will, or medical power of attorney,
or combined medical power of attorney and living will.
A living will, or medical power of attorney, or combined medical
power of attorney and living will made pursuant to this article shall be:
(1) In writing; (2) executed by the principal or by another person in the
principal’s presence at the principal’s express direction if the principal is
physically unable to do so; (3) dated; (4) signed in the presence of two or
more witnesses at least 18 years of age; and (5) signed and attested by such
witnesses whose signatures and attestations shall be acknowledged before a
notary public. as provided in subsection (d) of this section
(b) In addition, a witness may not be:
(1) The person who signed
the living will, or medical power of attorney, or
combined medical power of attorney and living will on behalf of and at
the direction of the principal;
(2) Related to the principal by blood or marriage;
(3) Entitled to any portion
of the estate of the principal under any will of the principal or codicil
thereto: Provided, That the validity of the living will, or
medical power of attorney, or combined medical power of attorney and living
will shall may not be affected when a witness at the time of
witnessing such the living will, or medical power of
attorney, or combined medical power of attorney and living will was
unaware of being a named beneficiary of the principal’s will;
(4) Directly financially responsible for the principal’s medical care;
(5) The attending physician; or
(6) The principal’s medical power of attorney representative or successor medical power of attorney representative.
(c) The following persons may not serve as a medical power of attorney representative or successor medical power of attorney representative:
(1) A treating health care provider of the principal;
(2) An employee of a treating health care provider not related to the principal;
(3) An operator of a health care facility serving the principal; or
(4) Any person who is an employee of an operator of a health care facility serving the principal and who is not related to the principal.
(d) It shall be is
the responsibility of the principal or his or her representative to provide for
notification to his or her attending physician and other health care providers
of the existence of the living will, or medical power of attorney,
or combined medical power of attorney
and living will or a revocation of
the living will, or medical power of attorney, or combined medical power of attorney and living will. An
attending physician or other health care provider, when presented with the
living will, or medical power of attorney, or combined medical power of attorney and living will or the revocation of a living will, or medical
power of attorney, or combined medical
power of attorney and living will,
shall make the living will, medical power of attorney, or combined medical power of attorney and living will or a copy of either any or a revocation
of either any a part of the principal’s medical records.
(e) At the time of
admission to any health care facility, each person shall be advised of the
existence and availability of living will, and medical power of
attorney, and combined medical
power of attorney and living will
forms and shall be given assistance in completing such forms if the person
desires: Provided, That under no circumstances may admission to a health
care facility be predicated upon a person having completed either a
medical power of attorney, or living will, or combined medical power of attorney and living will.
(f) The provision of living
will, or medical power of attorney, or
combined medical power of attorney and living will forms substantially in compliance with this article
by health care providers, medical practitioners, social workers, social service
agencies, senior citizens centers, hospitals, nursing homes, personal care
homes, community care facilities or any other similar person or group, without
separate compensation, does not constitute the unauthorized practice of law.
(g) The living will may,
but need not, be in the following form and may include other specific
directions not inconsistent with other provisions of this article. Should any
of the other specific directions be held to be invalid, such the
invalidity shall may not affect other directions of the living
will which can be given effect without the invalid direction and to this end
the directions in the living will are severable.
STATE OF WEST VIRGINIA
LIVING WILL
The Kind of Medical Treatment I Want and Don’t Want
If I Have a Terminal
Condition or Am In a Persistent Vegetative State
Living will made this _____________________________________day of _______________(month, year).
I,___________________________________________________, (Insert your name)
being of sound mind,
willfully and voluntarily declare that I want my wishes to be respected if I am
very sick and not able unable to communicate my wishes for
myself. In the absence of my ability to give directions regarding the use of
life-prolonging medical intervention, it is my desire that my dying
shall not be prolonged under the following circumstances:
If I am very sick and not
able unable to communicate my wishes for myself and I am certified
by one physician, who has personally examined me, to have a terminal condition or
to be in a persistent vegetative state (I am unconscious and am neither aware
of my environment nor able to interact with others)., I direct that
life-prolonging medical intervention that would serve solely to prolong
the dying process or maintain me in a persistent vegetative state be
withheld or withdrawn. I understand that this would also mean the removal of
any medically administered food and fluids, such as might be provided
intravenously or by feeding tube. I want to be allowed to die naturally
and only be given medications or other medical procedures necessary to keep me
comfortable. I want to receive as much medication as is necessary to alleviate
my pain. Nevertheless, oral food and fluids, such as may be provided by
spoon or by straw, shall be offered as desired and can be tolerated.
________________________________________________________________________________________________________________________________________________________
It is my intention that this living will be honored as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences resulting from such refusal.
I understand the full import of this living will.
______________________________________________________________________
Signed
______________________________________________________________________
______________________________________________________________________
Address
I did not sign the
principal’s signature above for or at the direction of the principal. I am at
least 18 years of age and am not related to the principal by blood or marriage,
nor entitled to any portion of the estate of the principal to the best
of my knowledge under any will of principal or codicil thereto, or nor
directly financially responsible for principal’s medical care. I am not the
principal’s attending physician or the principal’s medical power of attorney
representative or successor medical power of attorney representative under a
medical power of attorney.
_________________________________ __________________________________
Witness DATE
_________________________________ __________________________________
Witness DATE
STATE OF
_______________________________
COUNTY OF
I, _________________________, a Notary Public of said County, do certify that ________________________________________, as principal, and________________________ and ____________________, as witnesses, whose names are signed to the writing above bearing date on the _______________ day of _______, 20____, have this day acknowledged the same before me.
Given under my hand this ______ day of ______, 20__.
My commission expires:________________________________________
_________________________________________________________________
Notary Public
STATE OF WEST VIRGINIA
MEDICAL POWER OF ATTORNEY
The Person I Want to Make Health Care Decisions
For Me When I Can’t Make Them for Myself
Dated: _____________________________ , 20______
I,____________________________________________________,
hereby
(Insert
your name and address)
hereby appoint as my representative to act on my behalf to
give, withhold or withdraw informed consent to health care decisions in the
event that I am not unable to do so myself.
The person I choose as my representative is:
______________________________________________________________________
______________________________________________________________________
(Insert the name,
address, area code and telephone number of the person you wish to designate as
your representative.)(Please insert
only one name.)
If my representative is unable, unwilling, or disqualified to serve, then I appoint as my successor representative:
______________________________________________________________________
______________________________________________________________________
(Insert the name,
address, area code, and telephone number of the person you wish to
designate as your successor representative.) Please insert only one
name)
This appointment shall
extend to, but not be limited to, health care decisions relating to medical
treatment, surgical treatment, nursing care, medication, hospitalization, care
and treatment in a nursing home or other facility, and home health care. The
representative appointed by this document is specifically authorized to be
granted access to my medical records and other health information and to act on
my behalf to consent to, refuse or withdraw any and all medical treatment or
diagnostic procedures, or autopsy if my representative determines that I, if
able to do so, would consent to, refuse, or withdraw such treatment or
procedures. Such This authority shall include, but not be limited
to, decisions regarding the withholding or withdrawal of life-prolonging
interventions.
I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect the health care decisions that I would make if I were able to do so and because I also believe that this person will act in my best interest when my wishes are unknown. It is my intent that my family, my physician, and all legal authorities be bound by the decisions that are made by the representative appointed by this document and it is my intent that these decisions should not be the subject of review by any health care provider or administrative or judicial agency.
It is my intent that this document be legally binding and effective and that this document be taken as a formal statement of my desire concerning the method by which any health care decisions should be made on my behalf during any period when I am unable to make such decisions.
In exercising the authority under this medical power of attorney, my representative shall act consistently with my special directives or limitations as stated below.
I
am giving the following SPECIAL
DIRECTIVES OR LIMITATIONS ON THIS POWER: (Comments about tube feedings,
breathing machines, cardiopulmonary resuscitation, dialysis, mental health
treatment, funeral arrangements, autopsy and organ donation may be placed
here. My failure to provide special directives or limitations does not mean
that I want or refuse certain treatments.)
____________________________________________________________________________
____________________________________________________________________________
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
_______________________________
Signature of the Principal
_______________________________
Address of Principal
I did not sign the
principal’s signature above. I am at least 18 years of age and am not related
to the principal by blood or marriage. I am not entitled to any portion of the
estate of the principal or to the best of my knowledge under any will of the
principal or codicil thereto, or nor legally responsible for the
costs of the principal’s medical or other care. I am not the principal’s
attending physician, nor am I the representative or successor representative of
the principal.
_______________________________ ________________________
Witness: DATE
_______________________________ _________________________
Witness: DATE
_______________________________
STATE OF
_______________________________
COUNTY OF
I, ________________________________, a Notary Public of said
County, do certify that_________________________________________, as principal, and ____________________ and __________________, as witnesses, whose names are signed to the writing above bearing date on the ____________ day of _____________, 20_____, have this day acknowledged the same before me.
Given under my hand this __________ day of _____________, 20____.
My commission expires:______________________________________
_________________________________________________________________
Notary Public
(i) A combined medical power
of attorney and living will may, but need not, be in the following form, and
may include other specific directions not inconsistent with other provisions of
this article. Should any of the other specific directions be held to be
invalid, such the invalidity does not affect other directions of
the combined medical power of attorney and living will which can be given
effect without the invalid direction and to this end the directions in
the combined medical power of attorney and living will are severable.
STATE OF WEST VIRGINIA
COMBINED MEDICAL POWER OF ATTORNEY
AND LIVING WILL
The Person I Want to Make Health Care Decisions For Me When I Can’t Make
Them for Myself And The Kind of Medical Treatment I Want and Don’t Want
If I Have a Terminal
Condition or Am in a Persistent Vegetative State
Dated: ______________________________, 20______
I,
______________________________________________________, hereby (Insert
your name and address) hereby appoint as my representative to
act on my behalf to give, withhold or withdraw informed consent to health care
decisions in the event that I am not unable to do so myself.
The person I choose as my representative is:
_____________________________________________________________________
_____________________________________________________________________
(Insert the name, address, area code and telephone number of the person you wish to designate as your representative. Please insert only one name.).
If my representative is unable, unwilling, or disqualified to serve, then I appoint as my successor representative:
______________________________________________________________________
______________________________________________________________________
(Insert the name, address, area code and telephone number of the person you wish to designate as your successor representative. Please insert only one name.).
This appointment shall
extend to, but not be limited to, health care decisions relating to medical
treatment, surgical treatment, nursing care, medication, hospitalization, care
and treatment in a nursing home or other facility, and home health care. The
representative appointed by this document is specifically authorized to be
granted access to my medical records and other health information and to act on
my behalf to consent to, refuse, or withdraw any and all medical
treatment or diagnostic procedures, or autopsy if my representative determines
that I, if able to do so, would consent to, refuse, or withdraw such
treatment or procedures. Such authority shall include, but not be limited to,
decisions regarding the withholding or withdrawal of life-prolonging
interventions., subject to the special directives and limitations as
stated below:
I appoint this
representative because I believe this person understands my wishes and values
and will act to carry into effect the health care decisions that I would make
if I were able to do so, and because I also believe that this person will act
in my best interest when my wishes are unknown. It is my intent that my family,
my physician, and all legal authorities be bound by the decisions that are made
by the representative appointed by this document, and it is my intent that
these decisions should not be the subject of review by any health care provider
or administrative or judicial agency.
It is my intent that
this document be legally binding and effective and this this document be taken
as a formal statement of my desire concerning the method by which any health
care decisions should be made on my behalf during any period when I am unable
to make such decisions.
In exercising the
authority under this medical power of attorney, my representative shall act
consistently with my special directors or limitations as stated below.
I am giving the
following SPECIAL DIRECTIVES OR LIMITATIONS ON THIS POWER: (Comments about tube
feedings, breathing machines, cardiopulmonary resuscitation, dialysis, mental
health treatment, funeral arrangements, autopsy, and organ donation may be
placed here. My failure to provide special directives or limitations does not
mean that I want or refuse certain treatments)
1. If I am very sick and not
unable to communicate my wishes for myself and I am certified by one
physician, who has personally examined me, to have a terminal condition, to
be in a persistent vegetative state (I am unconscious and am neither aware of
my environment nor able to interact with others,), I direct that
life-prolonging medical intervention that would serve solely to prolong
the dying process or maintain me in a persistent vegetative state be
withheld or withdrawn. I understand that this would also mean the removal of
any medically administered food and fluids, such as might be provided
intravenously or by feeding tube. I want to be allowed to die naturally and
only be given medications or other medical procedures necessary to keep me
comfortable. I want to receive as much medication as is necessary to alleviate
my pain. Nevertheless, oral food and fluids, such as may be provided by
spoon or by straw, shall be offered as desired and can be tolerated.
In exercising the authority under this medical power of attorney, my representative shall act consistently with my special directives or limitations as stated below.
2. OTHER DIRECTIVES:
ADDITIONAL SPECIAL DIRECTIVES OR LIMITATIONS ON THIS POWER: Comments about
feeding tubes, breathing machines, cardiopulmonary resuscitation, dialysis,
mental health treatment, funeral arrangements, autopsy, and organ donation may
be placed here. My failure to provide special directives or limitations does
not mean that I want or refuse certain treatments.
_____________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect the health care decisions that I would make if I were able to do so, and because I also believe that this person will act in my best interest when my wishes are unknown. It is my intent that my family, my physician, and all legal authorities be bound by the decisions that are made by the representative appointed by this document, and it is my intent that these decisions should not be the subject of review by any health care provider or administrative or judicial agency.
It is my intent that this document be legally binding and effective and that this document be taken as a formal statement of my desire concerning the method by which any health care decisions should be made on my behalf during any period when I am unable to make such decisions.
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
_____________________________
Signature of the Principal
______________________________
Address of Principal
I did not sign the
principal's signature above. I am at least 18 years of age and am not related
to the principal by blood or marriage. I am not entitled to any portion of the
estate of the principal or to the best of my knowledge under any will of the
principal or codicil thereto, or nor legally responsible for the
costs of the principal’s medical or nor other care. I am not the
principal's attending physician, nor am I the representative or successor
representative of the principal.
Witness _____________________ DATE ___________
Witness _____________________ DATE ___________
STATE OF _________________________
COUNTY OF _________________________________
I, ______________________, a Notary Public of said county, do certify that_____________________, as principal, and ____________________ and ____________________, as witnesses, whose names are signed to the writing above bearing date on the _____ day of ______________, 20___, have this day acknowledged the same before me.
Given under my hand this _____ day of _________________, 20___.
My commission expires:_______________________________
________________________________
Signature of Notary Public
(j) Any and all living will, medical power of attorney, and combined medical power of attorney and living will documents executed pursuant to §16-30-3 and §16-30-4 of this code, before the effective date of the amendments to these sections remain in full force and effect. This section is effective for a living will, medical power of attorney, and combined medical power of attorney and living will document executed, amended or adjusted on or after January 1, 2022. Accordingly, all health care facilities and health care providers using a living will, medical power of attorney, and combined medical power of attorney and living will form referenced in §16-30-4 of this code shall update their forms on or before January 1, 2022.
NOTE: The purpose of this bill is to remove the persistent vegetative state from the living will. Oral food and fluids shall be provided as tolerated in all instances.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.
