As Passed by the Senate                       1            

123rd General Assembly                                             4            

   Regular Session                       Am. Sub. H. B. No. 494    5            

      1999-2000                                                    6            


     REPRESENTATIVES WOMER BENJAMIN-SALERNO-DePIERO-SULZER-        8            

      WILLAMOWSKI-JERSE-PETERSON-SUTTON-TERWILLEGER-VESPER-        9            

    MOTTLEY-HARTNETT-AUSTRIA-D. MILLER-BARRETT-SMITH- TIBERI-      11           

              SENATORS LATTA-DRAKE-SPADA-FINGERHUT                              


_________________________________________________________________   13           

                          A   B I L L                                           

             To amend sections 1337.12, 1337.13, 1337.17, and      15           

                2133.02 of the Revised Code to require that        17           

                certain statements in a living will or a durable   18           

                power of attorney for health care be in            19           

                conspicuous type or capital letters and to make                 

                other changes in the form of living wills and      20           

                durable powers of attorney for health care.        21           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        23           

      Section 1.  That sections 1337.12, 1337.13, 1337.17, and     25           

2133.02 of the Revised Code be amended to read as follows:         27           

      Sec. 1337.12.  (A)(1)  An adult who is of sound mind         36           

voluntarily may create a valid durable power of attorney for       37           

health care by executing a durable power of attorney, in           38           

accordance with division (B) of section 1337.09 of the Revised     39           

Code, that authorizes an attorney in fact as described in          40           

division (A)(2) of this section to make health care decisions for  41           

the principal at any time that the attending physician of the      42           

principal determines that the principal has lost the capacity to   44           

make informed health care decisions for the principal.  Except as  45           

otherwise provided in divisions (B) to (F) of section 1337.13 of   46           

the Revised Code, the authorization may include the right to give  47           

informed consent, to refuse to give informed consent, or to        48           

withdraw informed consent to any health care that is being or      49           

                                                          2      


                                                                 
could be provided to the principal.  Additionally, to be valid, a  50           

durable power of attorney for health care shall satisfy both of    51           

the following:                                                     52           

      (a)  It shall be signed AT THE END OF THE INSTRUMENT by the  54           

principal and SHALL state the date of its execution.               56           

      (b)  It shall be witnessed in accordance with division (B)   58           

of this section or be acknowledged by the principal in accordance  59           

with division (C) of this section.                                 60           

      (2)  Except as otherwise provided in this division, a        62           

durable power of attorney for health care may designate any        63           

competent adult as the attorney in fact.  The attending physician  64           

of the principal and an administrator of any nursing home in       65           

which the principal is receiving care shall not be designated as   66           

an attorney in fact in, or act as an attorney in fact pursuant     67           

to, a durable power of attorney for health care.  An employee or   68           

agent of the attending physician of the principal and an employee  69           

or agent of any health care facility in which the principal is     70           

being treated shall not be designated as an attorney in fact in,   71           

or act as an attorney in fact pursuant to, a durable power of      72           

attorney for health care, except that these limitations do not     73           

preclude a principal from designating either type of employee or   74           

agent as the principal's attorney in fact if the individual is a   76           

competent adult and related to the principal by blood, marriage,   77           

or adoption, or if the individual is a competent adult and the     78           

principal and the individual are members of the same religious     79           

order.                                                             80           

      (3)  A durable power of attorney for health care shall not   82           

expire, unless the principal specifies an expiration date in the   83           

instrument.  However, when a durable power of attorney contains    84           

an expiration date, if the principal lacks the capacity to make    85           

informed health care decisions for the principal on the            86           

expiration date, the instrument shall continue in effect until     88           

the principal regains the capacity to make informed health care    89           

decisions for the principal.                                       90           

                                                          3      


                                                                 
      (B)  If witnessed for purposes of division (A)(1)(b) of      92           

this section, a durable power of attorney for health care shall    93           

be witnessed by at least two individuals who are adults and who    94           

are not ineligible to be witnesses under this division.  Any       95           

person who is related to the principal by blood, marriage, or      96           

adoption, any person who is designated as the attorney in fact in  97           

the instrument, the attending physician of the principal, and the  98           

administrator of any nursing home in which the principal is        99           

receiving care are ineligible to be witnesses.                     100          

      The witnessing of a durable power of attorney for health     102          

care shall involve the principal signing, or acknowledging the     104          

principal's signature on, AT THE END OF the instrument in the      105          

presence of each witness.  Then, each witness shall subscribe the               

witness's signature on the durable power of attorney for health    107          

care AFTER THE SIGNATURE OF THE PRINCIPAL and, by doing so,        108          

attest to the witness's belief that the principal appears to be    109          

of sound mind and not under or subject to duress, fraud, or undue  110          

influence.  THE SIGNATURES OF THE PRINCIPAL AND THE WITNESSES      111          

UNDER THIS DIVISION ARE NOT REQUIRED TO APPEAR ON THE SAME PAGE    112          

OF THE INSTRUMENT.                                                              

      (C)  If acknowledged for purposes of division (A)(1)(b) of   114          

this section, a durable power of attorney for health care shall    115          

be acknowledged before a notary public, who shall make the         116          

certification described in section 147.53 of the Revised Code and  117          

also shall attest that the principal appears to be of sound mind   118          

and not under or subject to duress, fraud, or undue influence.     119          

      (D)(1)  If a principal has both a valid durable power of     122          

attorney for health care and a valid declaration, division (B) of  123          

section 2133.03 of the Revised Code applies.  If a principal has   126          

both a valid durable power of attorney for health care and a DNR   127          

identification that is based upon a valid declaration and if the   128          

declaration supersedes the durable power of attorney for health    129          

care under division (B) of section 2133.03 of the Revised Code,    132          

the DNR identification supersedes the durable power of attorney    134          

                                                          4      


                                                                 
for health care to the extent of any conflict between the two.  A  135          

valid durable power of attorney for health care supersedes any     136          

DNR identification that is based upon a do-not-resuscitate order   137          

that a physician issued for the principal which is inconsistent    139          

with the durable power of attorney for health care or a valid      140          

decision by the attorney in fact under a durable power of                       

attorney.                                                          141          

      (2)  As used in division (D) of this section:                143          

      (a)  "Declaration" has the same meaning as in section        145          

2133.01 of the Revised Code.                                       146          

      (b)  "Do-not-resuscitate order" and "DNR identification"     148          

have the same meanings as in section 2133.21 of the Revised Code.  149          

      Sec. 1337.13.  (A)(1)  An attorney in fact under a durable   158          

power of attorney for health care shall make health care           159          

decisions for the principal only if the instrument substantially   160          

complies with section 1337.12 of the Revised Code and              161          

specifically authorizes the attorney in fact to make health care   162          

decisions for the principal, and only if the attending physician   163          

of the principal determines that he THE PRINCIPAL has lost the     164          

capacity to make informed health care decisions for himself THE    166          

PRINCIPAL.  Except as otherwise provided in divisions (B) to (F)   168          

of this section and subject to any specific limitations in the     169          

instrument, the attorney in fact may make health care decisions    170          

for the principal to the same extent as the principal could make   171          

those decisions for himself THE PRINCIPAL if he THE PRINCIPAL had  173          

the capacity to do so.  Except as otherwise provided in divisions  175          

(B) to (F) of this section, in exercising his THAT authority, the  176          

attorney in fact shall act consistently with the desires of the    177          

principal or, if the desires of the principal are unknown, shall   178          

act in the best interest of the principal.                                      

      (2)  This section does not affect, and shall not be          180          

construed as affecting, any right that the person designated as    181          

attorney in fact in a durable power of attorney for health care    182          

may have, apart from the instrument, to make or participate in     183          

                                                          5      


                                                                 
the making of health care decisions on behalf of the principal.    184          

      (3)  Unless the right is limited in a durable power of       186          

attorney for health care, when acting pursuant to the instrument,  187          

the attorney in fact has the same right as the principal to        188          

receive information about proposed health care, to review health   189          

care records, and to consent to the disclosure of health care      190          

records.                                                           191          

      (B)(1)  An attorney in fact under a durable power of         193          

attorney for health care does not have authority, on behalf of     194          

the principal, to refuse or withdraw informed consent to           195          

life-sustaining treatment, unless the principal is in a terminal   196          

condition or in a permanently unconscious state and unless the     197          

applicable requirements of divisions (B)(2) and (3) of this        198          

section are satisfied.                                             199          

      (2)  In order for an attorney in fact to refuse or withdraw  201          

informed consent to life-sustaining treatment for a principal who  202          

is in a permanently unconscious state, the consulting physician    203          

associated with the determination that the principal is in the     204          

permanently unconscious state shall be a physician who, by virtue  205          

of advanced education or training, of a practice limited to        206          

particular diseases, illnesses, injuries, therapies, or branches   207          

of medicine and surgery or osteopathic medicine and surgery, of    208          

certification as a specialist in a particular branch of medicine   209          

or surgery or osteopathic medicine and surgery, or of experience   210          

acquired in the practice of medicine and surgery or osteopathic    211          

medicine and surgery, is qualified to determine whether the        212          

principal is in a permanently unconscious state.                   213          

      (3)  In order for an attorney in fact to refuse or withdraw  215          

informed consent to life-sustaining treatment for a principal who  216          

is in a terminal condition or in a permanently unconscious state,  217          

the attending physician of the principal shall determine, in good  218          

faith, to a reasonable degree of medical certainty, and in         219          

accordance with reasonable medical standards, that there is no     220          

reasonable possibility that the principal will regain the          221          

                                                          6      


                                                                 
capacity to make informed health care decisions for himself THE    222          

PRINCIPAL.                                                         223          

      (C)  Except as otherwise provided in this division, an       225          

attorney in fact under a durable power of attorney for health      226          

care does not have authority, on behalf of the principal, to       227          

refuse or withdraw informed consent to health care necessary to    228          

provide comfort care.  This division does not preclude, and shall  229          

not be construed as precluding, an attorney in fact under a        230          

durable power of attorney for health care from refusing or         231          

withdrawing informed consent to the provision of nutrition or      232          

hydration to the principal if, under the circumstances described   233          

in division (E) of this section, the attorney in fact would not    234          

be prohibited from refusing or withdrawing informed consent to     235          

the provision of nutrition or hydration to the principal.          236          

      (D)  An attorney in fact under a durable power of attorney   238          

for health care does not have authority to refuse or withdraw      239          

informed consent to health care for a principal who is pregnant    240          

if the refusal or withdrawal of the health care would terminate    241          

the pregnancy, unless the pregnancy or the health care would pose  242          

a substantial risk to the life of the principal, or unless the     243          

principal's attending physician and at least one other physician   244          

who has examined the principal determine, to a reasonable degree   245          

of medical certainty and in accordance with reasonable medical     246          

standards, that the fetus would not be born alive.                 247          

      (E)  An attorney in fact under a durable power of attorney   249          

for health care does not have authority to refuse or withdraw      250          

informed consent to the provision of nutrition or hydration to     251          

the principal, unless the principal is in a terminal condition or  252          

in a permanently unconscious state and unless the following        253          

apply:                                                             254          

      (1)  The principal's attending physician and at least one    256          

other physician who has examined the principal determine, to a     257          

reasonable degree of medical certainty and in accordance with      258          

reasonable medical standards, that nutrition or hydration will     259          

                                                          7      


                                                                 
not or no longer will serve to provide comfort to, or alleviate    260          

pain of, the principal.                                            261          

      (2)  If the principal is in a permanently unconscious        263          

state, the principal has authorized the attorney in fact to        264          

refuse or withdraw informed consent to the provision of nutrition  265          

or hydration to him THE PRINCIPAL when he THE PRINCIPAL is in a    267          

permanently unconscious state by doing both of the following in    268          

the durable power of attorney for health care:                     269          

      (a)  Including a statement in capital letters OR OTHER       271          

CONSPICUOUS TYPE, INCLUDING, BUT NOT LIMITED TO, A DIFFERENT       272          

FONT, BIGGER TYPE, OR BOLDFACE TYPE, that the attorney in fact     275          

may refuse or withdraw informed consent to the provision of        276          

nutrition or hydration to the principal if he THE PRINCIPAL is in  277          

a permanently unconscious state and if the determination           278          

described in division (E)(1) of this section is made, or checking  279          

or otherwise marking a box or line that is adjacent to a similar   280          

statement on a printed form of a durable power of attorney for     281          

health care;                                                       282          

      (b)  Placing his THE PRINCIPAL'S initials or signature       284          

underneath or adjacent to the statement, check, or other mark      286          

described in division (E)(2)(a) of this section.                   287          

      (3)  If the principal is in a permanently unconscious        289          

state, his THE PRINCIPAL'S attending physician determines, in      290          

good faith, that the principal authorized the attorney in fact to  292          

refuse or withdraw informed consent to the provision of nutrition  293          

or hydration to him THE PRINCIPAL when he THE PRINCIPAL is in a    295          

permanently unconscious state by complying with the requirements   296          

of divisions (E)(2)(a) and (b) of this section.                    297          

      (F)  An attorney in fact under a durable power of attorney   299          

for health care does not have authority to withdraw informed       300          

consent to any health care to which the principal previously       301          

consented, unless at least one of the following applies:           302          

      (1)  A change in the physical condition of the principal     304          

has significantly decreased the benefit of that health care to     305          

                                                          8      


                                                                 
the principal.                                                     306          

      (2)  The health care is not, or is no longer, significantly  308          

effective in achieving the purposes for which the principal        309          

consented to its use.                                              310          

      Sec. 1337.17.  A printed form of durable power of attorney   319          

for health care may be sold or otherwise distributed in this       320          

state for use by adults who are not advised by an attorney.  By    321          

use of such a printed form, a principal may authorize an attorney  322          

in fact to make health care decisions on his THE PRINCIPAL'S       323          

behalf, but the printed form shall not be used as an instrument    325          

for granting authority for any other decisions.  Any printed form  326          

that is sold or otherwise distributed in this state for the        327          

purpose described in this section shall include the following      328          

notice:                                                                         

            "Notice to Adult Executing This Document               329          

      This is an important legal document.  Before executing this  331          

document, you should know these facts:                             332          

      This document gives the person you designate (the attorney   334          

in fact) the power to make most* health care decisions for you if  335          

you lose the capacity to make informed health care decisions for   336          

yourself.  This power is effective only when your attending        337          

physician determines that you have lost the capacity to make       338          

informed health care decisions for yourself and, notwithstanding   339          

this document, as long as you have the capacity to make informed   340          

health care decisions for yourself, you retain the right to make   341          

all medical and other health care decisions for yourself.          342          

      You may include specific limitations in this document on     344          

the authority of the attorney in fact to make health care          345          

decisions for you.                                                 346          

      Subject to any specific limitations you include in this      348          

document, if your attending physician determines that you have     349          

lost the capacity to make an informed decision on a health care    350          

matter, the attorney in fact generally* will be authorized by      351          

this document to make health care decisions for you to the same    352          

                                                          9      


                                                                 
extent as you could make those decisions yourself, if you had the  353          

capacity to do so.  The authority of the attorney in fact to make  354          

health care decisions for you generally* will include the          355          

authority to give informed consent, to refuse to give informed     356          

consent, or to withdraw informed consent to any care, treatment,   357          

service, or procedure to maintain, diagnose, or treat a physical   358          

or mental condition.                                               359          

      However*, even if the attorney in fact has general           361          

authority to make health care decisions for you under this         362          

document, the attorney in fact never* will be authorized to do     363          

any of the following:                                              364          

      (1)  Refuse or withdraw informed consent to life-sustaining  366          

treatment (unless your attending physician and one other           367          

physician who examines you determine, to a reasonable degree of    368          

medical certainty and in accordance with reasonable medical        369          

standards, that either of the following applies:                   370          

      (a)  You are suffering from an irreversible, incurable, and  372          

untreatable condition caused by disease, illness, or injury from   373          

which (i) there can be no recovery and (ii) your death is likely   374          

to occur within a relatively short time if life-sustaining         375          

treatment is not administered, and your attending physician        376          

additionally determines, to a reasonable degree of medical         377          

certainty and in accordance with reasonable medical standards,     378          

that there is no reasonable possibility that you will regain the   379          

capacity to make informed health care decisions for yourself.      380          

      (b)  You are in a state of permanent unconsciousness that    382          

is characterized by you being irreversibly unaware of yourself     383          

and your environment and by a total loss of cerebral cortical      384          

functioning, resulting in you having no capacity to experience     385          

pain or suffering, and your attending physician additionally       386          

determines, to a reasonable degree of medical certainty and in     387          

accordance with reasonable medical standards, that there is no     388          

reasonable possibility that you will regain the capacity to make   389          

informed health care decisions for yourself);                      390          

                                                          10     


                                                                 
      (2)  Refuse or withdraw informed consent to health care      392          

necessary to provide you with comfort care (except that, if he     393          

THE ATTORNEY IN FACT is not prohibited from doing so under (4)     395          

below, the attorney in fact could refuse or withdraw informed      396          

consent to the provision of nutrition or hydration to you as       397          

described under (4) below). (You should understand that comfort    398          

care is defined in Ohio law to mean artificially or                399          

technologically administered sustenance (nutrition) or fluids      400          

(hydration) when administered to diminish your pain or             401          

discomfort, not to postpone your death, and any other medical or   402          

nursing procedure, treatment, intervention, or other measure that  403          

would be taken to diminish your pain or discomfort, not to         404          

postpone your death.  Consequently, if your attending physician    405          

were to determine that a previously described medical or nursing   406          

procedure, treatment, intervention, or other measure will not or   407          

no longer will serve to provide comfort to you or alleviate your   408          

pain, then, subject to (4) below, your attorney in fact would be   409          

authorized to refuse or withdraw informed consent to the           410          

procedure, treatment, intervention, or other measure.*);           411          

      (3)  Refuse or withdraw informed consent to health care for  413          

you if you are pregnant and if the refusal or withdrawal would     414          

terminate the pregnancy (unless the pregnancy or health care       415          

would pose a substantial risk to your life, or unless your         416          

attending physician and at least one other physician who examines  417          

you determine, to a reasonable degree of medical certainty and in  418          

accordance with reasonable medical standards, that the fetus       419          

would not be born alive);                                          420          

      (4)  Refuse or withdraw informed consent to the provision    422          

of artificially or technologically administered sustenance         423          

(nutrition) or fluids (hydration) to you, unless:                  424          

      (a)  You are in a terminal condition or in a permanently     426          

unconscious state.                                                 427          

      (b)  Your attending physician and at least one other         429          

physician who has examined you determine, to a reasonable degree   430          

                                                          11     


                                                                 
of medical certainty and in accordance with reasonable medical     431          

standards, that nutrition or hydration will not or no longer will  432          

serve to provide comfort to you or alleviate your pain.            433          

      (c)  If, but only if, you are in a permanently unconscious   435          

state, you authorize the attorney in fact to refuse or withdraw    436          

informed consent to the provision of nutrition or hydration to     437          

you by doing both of the following in this document:               438          

      (i)  Including a statement in capital letters OR OTHER       440          

CONSPICUOUS TYPE, INCLUDING, BUT NOT LIMITED TO, A DIFFERENT       441          

FONT, BIGGER TYPE, OR BOLDFACE TYPE, that the attorney in fact     444          

may refuse or withdraw informed consent to the provision of        445          

nutrition or hydration to you if you are in a permanently          446          

unconscious state and if the determination that nutrition or       447          

hydration will not or no longer will serve to provide comfort to   448          

you or alleviate your pain is made, or checking or otherwise       449          

marking a box or line (if any) that is adjacent to a similar       450          

statement on this document;                                                     

      (ii)  Placing your initials or signature underneath or       452          

adjacent to the statement, check, or other mark previously         453          

described.                                                         454          

      (d)  Your attending physician determines, in good faith,     456          

that you authorized the attorney in fact to refuse or withdraw     457          

informed consent to the provision of nutrition or hydration to     458          

you if you are in a permanently unconscious state by complying     459          

with the requirements of (4)(c)(i) and (ii) above.                 460          

      (5)  Withdraw informed consent to any health care to which   462          

you previously consented, unless a change in your physical         463          

condition has significantly decreased the benefit of that health   464          

care to you, or unless the health care is not, or is no longer,    465          

significantly effective in achieving the purposes for which you    466          

consented to its use.                                              467          

      Additionally, when exercising his authority to make health   469          

care decisions for you, the attorney in fact will have to act      470          

consistently with your desires or, if your desires are unknown,    471          

                                                          12     


                                                                 
to act in your best interest.  You may express your desires to     472          

the attorney in fact by including them in this document or by      473          

making them known to him THE ATTORNEY IN FACT in another manner.   474          

      When acting pursuant to this document, the attorney in fact  476          

generally* will have the same rights that you have to receive      477          

information about proposed health care, to review health care      478          

records, and to consent to the disclosure of health care records.  479          

You can limit that right in this document if you so choose.        480          

      Generally, you may designate any competent adult as the      482          

attorney in fact under this document.  However, you cannot*        483          

designate your attending physician or the administrator of any     484          

nursing home in which you are receiving care as the attorney in    485          

fact under this document.  Additionally, you cannot* designate an  486          

employee or agent of your attending physician, or an employee or   487          

agent of a health care facility at which you are being treated,    488          

as the attorney in fact under this document, unless either type    489          

of employee or agent is a competent adult and related to you by    490          

blood, marriage, or adoption, or unless either type of employee    491          

or agent is a competent adult and you and the employee or agent    492          

are members of the same religious order.                           493          

      This document has no expiration date under Ohio law, but     495          

you may choose to specify a date upon which your durable power of  496          

attorney for health care generally will expire.  However, if you   497          

specify an expiration date and then lack the capacity to make      498          

informed health care decisions for yourself on that date, the      499          

document and the power it grants to your attorney in fact will     500          

continue in effect until you regain the capacity to make informed  501          

health care decisions for yourself.                                502          

      You have the right to revoke the designation of the          504          

attorney in fact and the right to revoke this entire document at   505          

any time and in any manner.  Any such revocation generally will    506          

be effective when you express your intention to make the           507          

revocation.   However, if you made your attending physician aware  508          

of this document, any such revocation will be effective only when  509          

                                                          13     


                                                                 
you communicate it to your attending physician, or when a witness  510          

to the revocation or other health care personnel to whom the       511          

revocation is communicated by such a witness communicate it to     512          

your attending physician.                                          513          

      If you execute this document and create a valid durable      515          

power of attorney for health care with it, it will revoke any      516          

prior, valid durable power of attorney for health care that you    517          

created, unless you indicate otherwise in this document.           518          

      This document is not valid as a durable power of attorney    520          

for health care unless it is acknowledged before a notary public   521          

or is signed by at least two adult witnesses who are present when  522          

you sign or acknowledge your signature.  No person who is related  523          

to you by blood, marriage, or adoption may be a witness.  The      524          

attorney in fact, your attending physician, and the administrator  525          

of any nursing home in which you are receiving care also are       526          

ineligible to be witnesses.                                        527          

      If there is anything in this document that you do not        529          

understand, you should ask your lawyer to explain it to you."      530          

      In the preceding notice, the single words, and the two       532          

sentences in the second set of parentheses in paragraph (2),       533          

followed by an asterisk and all of paragraph (4) should SHALL      534          

appear in the printed form in capital letters OR OTHER             536          

CONSPICUOUS TYPE, INCLUDING, BUT NOT LIMITED TO, A DIFFERENT       537          

FONT, BIGGER TYPE, OR BOLDFACE TYPE.                                            

      Sec. 2133.02.  (A)(1)  An adult who is of sound mind         546          

voluntarily may execute at any time a declaration governing the    547          

use or continuation, or the withholding or withdrawal, of          548          

life-sustaining treatment.  The declaration shall be signed AT     549          

THE END by the declarant or by another individual at the           550          

direction of the declarant, state the date of its execution, and   551          

either be witnessed as described in division (B)(1) of this        552          

section or be acknowledged by the declarant in accordance with     553          

division (B)(2) of this section.  The declaration may include a    554          

designation by the declarant of one or more persons who are to be  555          

                                                          14     


                                                                 
notified by the declarant's attending physician at any time that   556          

life-sustaining treatment would be withheld or withdrawn pursuant  557          

to the declaration.  The declaration may include a specific        558          

authorization for the use or continuation or the withholding or    559          

withdrawal of CPR, but the failure to include a specific           561          

authorization for the withholding or withdrawal of CPR does not    562          

preclude the withholding or withdrawal of CPR in accordance with   563          

sections 2133.01 to 2133.15 or sections 2133.21 to 2133.26 of the  564          

Revised Code.                                                                   

      (2)  Depending upon whether the declarant intends the        566          

declaration to apply when the declarant is in a terminal           567          

condition, in a permanently unconscious state, or in either a      569          

terminal condition or a permanently unconscious state, the         570          

declarant's declaration shall use either or both of the terms      572          

"terminal condition" and "permanently unconscious state" and       573          

shall define or otherwise explain those terms in capital letters   574          

and in a manner that is substantially consistent with the          575          

provisions of section 2133.01 of the Revised Code.                 576          

      (3)(a)  If a declarant who has authorized the withholding    578          

or withdrawal of life-sustaining treatment intends that the        579          

declarant's attending physician withhold or withdraw nutrition or  580          

hydration when the declarant is in a permanently unconscious       582          

state and when the nutrition and hydration will not or no longer   583          

will serve to provide comfort to the declarant or alleviate the    585          

declarant's pain, then the declarant shall authorize the           586          

declarant's attending physician to withhold or withdraw nutrition  587          

or hydration when the declarant is in the permanently unconscious  588          

state by doing both of the following in the declaration:           589          

      (i)  Including a statement in capital letters OR OTHER       591          

CONSPICUOUS TYPE, INCLUDING, BUT NOT LIMITED TO, A DIFFERENT       592          

FONT, BIGGER TYPE, OR BOLDFACE TYPE, that the declarant's          595          

attending physician may withhold or withdraw nutrition and                      

hydration if the declarant is in a permanently unconscious state   597          

and if the declarant's attending physician and at least one other  598          

                                                          15     


                                                                 
physician who has examined the declarant determine, to a           599          

reasonable degree of medical certainty and in accordance with      601          

reasonable medical standards, that nutrition or hydration will     602          

not or no longer will serve to provide comfort to the declarant    603          

or alleviate the declarant's pain, or checking or otherwise        605          

marking a box or line that is adjacent to a similar statement on   606          

a printed form of a declaration;                                                

      (ii)  Placing the declarant's initials or signature          608          

underneath or adjacent to the statement, check, or other mark      610          

described in division (A)(3)(a)(i) of this section.                611          

      (b)  Division (A)(3)(a) of this section does not apply to    613          

the extent that a declaration authorizes the withholding or        614          

withdrawal of life-sustaining treatment when a declarant is in a   615          

terminal condition.  The provisions of division (E) of section     616          

2133.12 of the Revised Code pertaining to comfort care shall       617          

apply to a declarant in a terminal condition.                      618          

      (B)(1)  If witnessed for purposes of division (A) of this    620          

section, a declaration shall be witnessed by two individuals as    621          

described in this division in whose presence the declarant, or     622          

another individual at the direction of the declarant, signed the   623          

declaration.  The witnesses to a declaration shall be adults who   624          

are not related to the declarant by blood, marriage, or adoption,  625          

who are not the attending physician of the declarant, and who are  626          

not the administrator of any nursing home in which the declarant   627          

is receiving care.  Each witness shall subscribe the witness'      629          

signature on the declaration AFTER THE SIGNATURE OF THE DECLARANT  630          

OR OTHER INDIVIDUAL AT THE DIRECTION OF THE DECLARANT and, by      631          

doing so, attest to the witness' belief that the declarant         633          

appears to be of sound mind and not under or subject to duress,                 

fraud, or undue influence.  THE SIGNATURES OF THE DECLARANT OR     634          

OTHER INDIVIDUAL AT THE DIRECTION OF THE DECLARANT UNDER DIVISION  635          

(A) OF THIS SECTION AND OF THE WITNESSES UNDER THIS DIVISION ARE   636          

NOT REQUIRED TO APPEAR ON THE SAME PAGE OF THE DECLARATION.        637          

      (2)  If acknowledged for purposes of division (A) of this    639          

                                                          16     


                                                                 
section, a declaration shall be acknowledged before a notary       640          

public, who shall make the certification described in section      641          

147.53 of the Revised Code and also shall attest that the          642          

declarant appears to be of sound mind and not under or subject to  643          

duress, fraud, or undue influence.                                 644          

      (C)  An attending physician, or other health care personnel  646          

acting under the direction of an attending physician, who is       647          

furnished a copy of a declaration shall make it a part of the      648          

declarant's medical record and, when section 2133.05 of the        649          

Revised Code is applicable, also shall comply with that section.   650          

      (D)(1)  Subject to division (D)(2) of this section, an       652          

attending physician of a declarant or a health care facility in    653          

which a declarant is confined may refuse to comply or allow        654          

compliance with the declarant's declaration on the basis of a      655          

matter of conscience or on another basis.  An employee or agent    656          

of an attending physician of a declarant or of a health care       657          

facility in which a declarant is confined may refuse to comply     658          

with the declarant's declaration on the basis of a matter of       659          

conscience.                                                        660          

      (2)  If an attending physician of a declarant or a health    662          

care facility in which a declarant is confined is not willing or   663          

not able to comply or allow compliance with the declarant's        664          

declaration, the physician or facility promptly shall so advise    665          

the declarant and comply with the provisions of section 2133.10    666          

of the Revised Code, or, if the declaration has become operative   667          

as described in division (A) of section 2133.03 of the Revised     668          

Code, shall comply with the provisions of section 2133.10 of the   669          

Revised Code.                                                      670          

      (E)  As used in this section, "CPR" has the same meaning as  673          

in section 2133.21 of the Revised Code.                                         

      Section 2.  That existing sections 1337.12, 1337.13,         675          

1337.17, and 2133.02 of the Revised Code are hereby repealed.      677          

      Section 3.  (A)  The amendments made by this act to          679          

sections 1337.12, 1337.13, and 1337.17 of the Revised Code do not  680          

                                                          17     


                                                                 
invalidate an otherwise valid durable power of attorney for        681          

health care that was executed prior to the effective date of this  682          

act in conformity with those sections as they existed on the date  683          

of the execution of the durable power of attorney for health       684          

care.                                                                           

      (B)  The amendments made by this act to section 2133.02 of   686          

the Revised Code do not invalidate an otherwise valid declaration  687          

governing the use or continuation, or the withholding or           688          

withdrawal, of life-sustaining treatment that was executed prior   689          

to the effective date of this act in conformity with that section  690          

as it existed on the date of the execution of the declaration.     691