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Sub. H. B. No. 126 As Reported by the House Judiciary CommitteeAs Reported by the House Judiciary Committee
130th General Assembly | Regular Session | 2013-2014 |
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Representatives Kunze, Stinziano
Cosponsors:
Representatives Wachtmann, Celebrezze, Pillich
A BILL
To amend sections 1337.12, 1337.13, 1337.28,
2111.121, and 2133.04 of the Revised Code to allow
a person who creates a durable power of attorney
for health care to authorize the attorney in fact
to obtain health information about the person, to
make an individual who is designated as an
alternate attorney in fact ineligible to witness
the instrument that creates a durable power of
attorney for health care, to permit the principal
to nominate a guardian in a durable power of
attorney for health care, to provide that a prior
nomination of a guardian is revoked by a
subsequent nomination of a guardian, and to
establish a presumption that a valid living will
declaration revokes all prior declarations.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1337.12, 1337.13, 1337.28, 2111.121,
and 2133.04 of the Revised Code be amended to read as follows:
Sec. 1337.12. (A)(1) An adult who is of sound mind
voluntarily may create a valid durable power of attorney for
health care by executing a durable power of attorney, in
accordance with section 1337.24 of the Revised Code, that
authorizes an attorney in fact as described in division (A)(2) of
this section to make health care decisions for the principal at
any time that the attending physician of the principal determines
that the principal has lost the capacity to make informed health
care decisions for the principal. The durable power of attorney
for health care may authorize the attorney in fact, commencing
immediately upon the execution of the instrument or at any
subsequent time and regardless of whether the principal has lost
the capacity to make informed health care decisions, to obtain
information concerning the principal's health, including protected
health information as defined in 45 C.F.R. 160.103. Except as
otherwise provided in divisions (B) to (F) of section 1337.13 of
the Revised Code, the authorization may include the right to give
informed consent, to refuse to give informed consent, or to
withdraw informed consent to any health care that is being or
could be provided to the principal. Additionally, to be valid, a
durable power of attorney for health care shall satisfy both of
the following:
(a) It shall be signed at the end of the instrument by the
principal and shall state the date of its execution.
(b) It shall be witnessed in accordance with division (B) of
this section or be acknowledged by the principal in accordance
with division (C) of this section.
(2) Except as otherwise provided in this division, a durable
power of attorney for health care may designate any competent
adult as the attorney in fact. The attending physician of the
principal and an administrator of any nursing home in which the
principal is receiving care shall not be designated as an attorney
in fact in, or act as an attorney in fact pursuant to, a durable
power of attorney for health care. An employee or agent of the
attending physician of the principal and an employee or agent of
any health care facility in which the principal is being treated
shall not be designated as an attorney in fact in, or act as an
attorney in fact pursuant to, a durable power of attorney for
health care, except that these limitations do not preclude a
principal from designating either type of employee or agent as the
principal's attorney in fact if the individual is a competent
adult and related to the principal by blood, marriage, or
adoption, or if the individual is a competent adult and the
principal and the individual are members of the same religious
order.
(3) A durable power of attorney for health care shall not
expire, unless the principal specifies an expiration date in the
instrument. However, when a durable power of attorney contains an
expiration date, if the principal lacks the capacity to make
informed health care decisions for the principal on the expiration
date, the instrument shall continue in effect until the principal
regains the capacity to make informed health care decisions for
the principal.
(B) If witnessed for purposes of division (A)(1)(b) of this
section, a durable power of attorney for health care shall be
witnessed by at least two individuals who are adults and who are
not ineligible to be witnesses under this division. Any person who
is related to the principal by blood, marriage, or adoption, any
person who is designated as the attorney in fact or alternate
attorney in fact in the instrument, the attending physician of the
principal, and the administrator of any nursing home in which the
principal is receiving care are ineligible to be witnesses.
The witnessing of a durable power of attorney for health care
shall involve the principal signing, or acknowledging the
principal's signature, at the end of the instrument in the
presence of each witness. Then, each witness shall subscribe the
witness's signature after the signature of the principal and, by
doing so, attest to the witness's belief that the principal
appears to be of sound mind and not under or subject to duress,
fraud, or undue influence. The signatures of the principal and the
witnesses under this division are not required to appear on the
same page of the instrument.
(C) If acknowledged for purposes of division (A)(1)(b) of
this section, a durable power of attorney for health care shall be
acknowledged before a notary public, who shall make the
certification described in section 147.53 of the Revised Code and
also shall attest that the principal appears to be of sound mind
and not under or subject to duress, fraud, or undue influence.
(D)(1) If a principal has both a valid durable power of
attorney for health care and a valid declaration, division (B) of
section 2133.03 of the Revised Code applies. If a principal has
both a valid durable power of attorney for health care and a DNR
identification that is based upon a valid declaration and if the
declaration supersedes the durable power of attorney for health
care under division (B) of section 2133.03 of the Revised Code,
the DNR identification supersedes the durable power of attorney
for health care to the extent of any conflict between the two. A
valid durable power of attorney for health care supersedes any DNR
identification that is based upon a do-not-resuscitate order that
a physician issued for the principal which is inconsistent with
the durable power of attorney for health care or a valid decision
by the attorney in fact under a durable power of attorney.
(2) As used in division (D) of this section:
(a) "Declaration" has the same meaning as in section 2133.01
of the Revised Code.
(b) "Do-not-resuscitate order" and "DNR identification" have
the same meanings as in section 2133.21 of the Revised Code.
(E)(1) In a durable power of attorney for health care, a
principal may nominate a guardian of the principal's person,
estate, or both for consideration by a court if proceedings for
the appointment of a guardian for the principal's person, estate,
or both are commenced at a later time. The principal may authorize
the person nominated as the guardian or the attorney in fact to
nominate a successor guardian for consideration by the court. The
principal's nomination of a guardian of the principal's person,
estate, or both is revoked by the principal's subsequent
nomination of a guardian of the principal's person, estate, or
both, and, except for good cause shown or disqualification, the
court shall make its appointment in accordance with the
principal's most recent nomination.
(2) The principal may direct that bond be waived for a person
nominated as guardian or successor guardian under division (E)(1)
of this section.
(3) A durable power of attorney for health care that contains
the nomination of a person to be the guardian of the person,
estate, or both of the principal may be filed with the probate
court for safekeeping, and the probate court shall designate the
nomination as the nomination of a standby guardian.
(4) If a guardian is appointed for the principal, a durable
power of attorney for health care is not terminated, and the
authority of the attorney in fact continues unless the court,
pursuant to its authority under section 2111.50 of the Revised
Code, limits, suspends, or terminates the power of attorney after
notice to the attorney in fact and upon a finding that the
limitation, suspension, or termination is in the best interest of
the principal.
Sec. 1337.13. (A)(1) An attorney in fact under a durable
power of attorney for health care shall make health care decisions
for the principal only if the instrument substantially complies
with section 1337.12 of the Revised Code and specifically
authorizes the attorney in fact to make health care decisions for
the principal, and only if the attending physician of the
principal determines that the principal has lost the capacity to
make informed health care decisions for the principal. If
authorized in the instrument, the attorney in fact, commencing
immediately upon the execution of the instrument or at any
subsequent time specified in the instrument and regardless of
whether the principal has lost the capacity to make informed
health care decisions, may obtain information concerning the
principal's health, including protected health information as
defined in 45 C.F.R. 160.103. Except as otherwise provided in
divisions (B) to (F) of this section and subject to any specific
limitations in the instrument, the attorney in fact may make
health care decisions for the principal to the same extent as the
principal could make those decisions for the principal if the
principal had the capacity to do so. Except as otherwise provided
in divisions (B) to (F) of this section, in exercising that
authority, the attorney in fact shall act consistently with the
desires of the principal or, if the desires of the principal are
unknown, shall act in the best interest of the principal.
(2) This section does not affect, and shall not be construed
as affecting, any right that the person designated as attorney in
fact in a durable power of attorney for health care may have,
apart from the instrument, to make or participate in the making of
health care decisions on behalf of the principal.
(3) Unless the right is limited in a durable power of
attorney for health care, when acting pursuant to the instrument,
the attorney in fact has the same right as the principal to
receive information about proposed health care, to review health
care records, and to consent to the disclosure of health care
records.
(B)(1) An attorney in fact under a durable power of attorney
for health care does not have authority, on behalf of the
principal, to refuse or withdraw informed consent to
life-sustaining treatment, unless the principal is in a terminal
condition or in a permanently unconscious state and unless the
applicable requirements of divisions (B)(2) and (3) of this
section are satisfied.
(2) In order for an attorney in fact to refuse or withdraw
informed consent to life-sustaining treatment for a principal who
is in a permanently unconscious state, the consulting physician
associated with the determination that the principal is in the
permanently unconscious state shall be a physician who, by virtue
of advanced education or training, of a practice limited to
particular diseases, illnesses, injuries, therapies, or branches
of medicine and surgery or osteopathic medicine and surgery, of
certification as a specialist in a particular branch of medicine
or surgery or osteopathic medicine and surgery, or of experience
acquired in the practice of medicine and surgery or osteopathic
medicine and surgery, is qualified to determine whether the
principal is in a permanently unconscious state.
(3) In order for an attorney in fact to refuse or withdraw
informed consent to life-sustaining treatment for a principal who
is in a terminal condition or in a permanently unconscious state,
the attending physician of the principal shall determine, in good
faith, to a reasonable degree of medical certainty, and in
accordance with reasonable medical standards, that there is no
reasonable possibility that the principal will regain the capacity
to make informed health care decisions for the principal.
(C) Except as otherwise provided in this division, an
attorney in fact under a durable power of attorney for health care
does not have authority, on behalf of the principal, to refuse or
withdraw informed consent to health care necessary to provide
comfort care. This division does not preclude, and shall not be
construed as precluding, an attorney in fact under a durable power
of attorney for health care from refusing or withdrawing informed
consent to the provision of nutrition or hydration to the
principal if, under the circumstances described in division (E) of
this section, the attorney in fact would not be prohibited from
refusing or withdrawing informed consent to the provision of
nutrition or hydration to the principal.
(D) An attorney in fact under a durable power of attorney for
health care does not have authority to refuse or withdraw informed
consent to health care for a principal who is pregnant if the
refusal or withdrawal of the health care would terminate the
pregnancy, unless the pregnancy or the health care would pose a
substantial risk to the life of the principal, or unless the
principal's attending physician and at least one other physician
who has examined the principal determine, to a reasonable degree
of medical certainty and in accordance with reasonable medical
standards, that the fetus would not be born alive.
(E) An attorney in fact under a durable power of attorney for
health care does not have authority to refuse or withdraw informed
consent to the provision of nutrition or hydration to the
principal, unless the principal is in a terminal condition or in a
permanently unconscious state and unless the following apply:
(1) The principal's attending physician and at least one
other physician who has examined the principal determine, to a
reasonable degree of medical certainty and in accordance with
reasonable medical standards, that nutrition or hydration will not
or no longer will serve to provide comfort to, or alleviate pain
of, the principal.
(2) If the principal is in a permanently unconscious state,
the principal has authorized the attorney in fact to refuse or
withdraw informed consent to the provision of nutrition or
hydration to the principal when the principal is in a permanently
unconscious state by doing both of the following in the durable
power of attorney for health care:
(a) Including a statement in capital letters or other
conspicuous type, including, but not limited to, a different font,
bigger type, or boldface type, that the attorney in fact may
refuse or withdraw informed consent to the provision of nutrition
or hydration to the principal if the principal is in a permanently
unconscious state and if the determination described in division
(E)(1) of this section is made, or checking or otherwise marking a
box or line that is adjacent to a similar statement on a printed
form of a durable power of attorney for health care;
(b) Placing the principal's initials or signature underneath
or adjacent to the statement, check, or other mark described in
division (E)(2)(a) of this section.
(3) If the principal is in a permanently unconscious state,
the principal's attending physician determines, in good faith,
that the principal authorized the attorney in fact to refuse or
withdraw informed consent to the provision of nutrition or
hydration to the principal when the principal is in a permanently
unconscious state by complying with the requirements of divisions
(E)(2)(a) and (b) of this section.
(F) An attorney in fact under a durable power of attorney for
health care does not have authority to withdraw informed consent
to any health care to which the principal previously consented,
unless at least one of the following applies:
(1) A change in the physical condition of the principal has
significantly decreased the benefit of that health care to the
principal.
(2) The health care is not, or is no longer, significantly
effective in achieving the purposes for which the principal
consented to its use.
Sec. 1337.28. (A) In a power of attorney, a principal may
nominate a guardian of the principal's person, estate, or both and
may nominate a guardian of the person, the estate, or both of one
or more of the principal's minor children or incompetent adult
children, whether born at the time of the execution of the power
of attorney or afterward. The nomination is for consideration by a
court if proceedings for the appointment of a guardian for the
principal's person, estate, or both or if proceedings for the
appointment of a guardian of the person, the estate, or both of
one or more of the principal's minor children or incompetent adult
children are commenced at a later time. The principal may
authorize the person nominated as guardian or the agent to
nominate a successor guardian for consideration by a court. Except
The principal's nomination of a guardian of the principal's
person, estate, or both or the principal's nomination of a
guardian of the person, the estate, or both of one or more of the
principal's minor children or incompetent adult children is
revoked by the principal's subsequent nomination of a guardian of
the principal's person, estate, or both or the principal's
subsequent nomination of a guardian of the person, the estate, or
both of one or more of the principal's minor children or
incompetent adult children, and, except for good cause shown or
disqualification, the court shall make its appointment in
accordance with the principal's most recent nomination. Nomination
of a person as a guardian or successor guardian of the person, the
estate, or both of one or more of the principal's minor children
or incompetent adult children under this division, and any
subsequent appointment of the guardian or successor guardian as
guardian under section 2111.02 of the Revised Code, does not
vacate the jurisdiction of any other court that previously may
have exercised jurisdiction over the person of the minor or
incompetent adult child.
(B) The principal may direct that bond be waived for a person
nominated as guardian or as a successor guardian.
(C) If, after a principal executes a power of attorney, a
court appoints a guardian of the principal's estate or other
fiduciary charged with the management of some or all of the
principal's property, the agent is accountable to the fiduciary as
well as to the principal. The power of attorney is not terminated
and the agent's authority continues unless limited, suspended, or
terminated by the court after notice to the agent and upon a
finding that the limitation, suspension, or termination would be
in the best interest of the principal.
(D) A power of attorney that contains the nomination of a
person to be the guardian of the person, the estate, or both of
one or more of the principal's minor children or incompetent adult
children under this division may be filed with the probate court
for safekeeping, and the probate court shall designate the
nomination as the nomination of a standby guardian.
(E) As used in this section, "incompetent" has the same
meaning as in section 2111.01 of the Revised Code.
Sec. 2111.121. (A) A person may nominate in a writing, as
described in this division, another person to be the guardian of
the nominator's person, estate, or both or the guardian of the
person, the estate, or both, of one or more of the nominator's
minor or incompetent adult children, whether born at the time of
the execution of the writing or afterward, subject to notice and a
hearing pursuant to section 2111.02 of the Revised Code. The
nomination is for consideration by a court if proceedings for the
appointment of a guardian of the person, the estate, or both, for
the person making the nomination or if proceedings for the
appointment of a guardian as the guardian of the person, the
estate, or both of one or more of the nominator's minor or
incompetent adult children are commenced at a later time. The
person may authorize, in a writing of that nature, the person
nominated as guardian to nominate a successor guardian for
consideration by a court. The person also may direct, in a writing
of that nature, that bond be waived for a person nominated as
guardian in it or nominated as a successor guardian in accordance
with an authorization in it.
To be effective as a nomination, the writing shall be signed
by the person making the nomination in the presence of two
witnesses; signed by the witnesses; and contain, immediately prior
to their signatures, an attestation of the witnesses that the
person making the nomination signed the writing in their presence;
or be acknowledged by the person making the nomination before a
notary public.
(B) If a person has nominated, in a writing as described in
division (A) of this section, another person to be the guardian of
the nominator's person, estate, or both, and proceedings for the
appointment of a guardian for the person are commenced at a later
time, the court involved shall appoint the person nominated as
guardian in the writing most recently executed if the person
nominated is competent, suitable, and willing to accept the
appointment. A person's nomination, in a writing as described in
division (A) of this section, of a guardian of the nominator's
person, estate, or both or of a guardian of the person, the
estate, or both of one or more of the nominator's minor children
or incompetent adult children is revoked by the person's
subsequent nomination, in a writing as described in division (A)
of this section, of a guardian of the nominator's person, estate,
or both or of a guardian of the person, the estate, or both of one
or more of the nominator's minor children or incompetent adult
children, and, except for good cause shown or disqualification,
the court shall make its appointment in accordance with the
person's most recent nomination. If the writing contains a waiver
of bond, the court shall waive bond of the person nominated as
guardian unless it is of the opinion that the interest of the
trust demands it.
(C) Nomination of a person as a guardian or successor
guardian of the person, the estate, or both of one or more of the
nominator's minor or incompetent adult children under division (A)
of this section, and any subsequent appointment of the guardian or
successor guardian as guardian under section 2111.02 of the
Revised Code, does not vacate the jurisdiction of any other court
that previously may have exercised jurisdiction over the person of
the minor or incompetent adult child.
(D) The writing containing the nomination of a person to be
the guardian of the person, the estate, or both of one or more of
the nominator's minor or incompetent adult children under division
(A) of this section may be filed with the probate court for
safekeeping, and the probate court shall designate the nomination
as the nomination of a standby guardian.
Sec. 2133.04. (A) A declarant may revoke a declaration at
any time and in any manner. The revocation shall be effective when
the declarant expresses an intention to revoke the declaration,
except that, if the declarant made the declarant's attending
physician aware of the declaration, the revocation shall be
effective upon its communication to the attending physician of the
declarant by the declarant, a witness to the revocation, or other
health care personnel to whom the revocation is communicated by
that witness. Absent actual knowledge to the contrary, the
attending physician of a declarant and other health care personnel
who are informed of the revocation of a declaration by an alleged
witness may rely on the information and act in accordance with the
revocation.
(B) Upon the communication as described in division (A) of
this section to the attending physician of a declarant of the fact
that the declaration has been revoked, the attending physician or
other health care personnel acting under the direction of the
attending physician shall make the fact a part of the declarant's
medical record.
(C) Unless a declaration provides otherwise, a declaration is
revoked by a subsequent declaration.
Section 2. That existing sections 1337.12, 1337.13, 1337.28,
2111.121, and 2133.04 of the Revised Code are hereby repealed.
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