Introduced by Representative Donahue of Northfield

BILL AS INTRODUCED H.215

2005 Page 1

H.215

Introduced by Representative Donahue of Northfield

Referred to Committee on

Date:

Subject: Health; guardianship; probate; medical decisions; surrogacy; advance directives

Statement of purpose: This bill proposes to create a unified statutory definition for competency for medical decision-making and clarify the role of the probate court in substitute decision-making.

AN ACT RELATING TO MEDICAL GUARDIANSHIP

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 14 V.S.A. chapter 111, subchapter 10 is added to read:

Subchapter 10. Medical Guardianship

§ 3041. DEFINITIONS

The words and phrases used in this subchapter shall be defined as follows:

(1) “Clinician” means a medical doctor licensed to practice under chapter 23 of Title 26, an osteopathic physician licensed pursuant to subdivision 1750(9) of Title 26, an advanced practice registered nurse licensed pursuant to subdivision 1572(4) of Title 26, and a physician’s assistant certified pursuant to section 1733 of Title 26, acting within the scope of the license under which the clinician is practicing.

(2) “Emergency” means a delay of more than 24 hours will be highly probable to cause serious and irreversible harm to the individual’s health or death.

(3) “Health care” means any treatment, service or procedure to maintain, diagnose, or treat an individual’s physical or mental condition, including services provided pursuant to a physician’s order, and services to assist in activities of daily living provided by a health care provider or in a health care facility or residential care facility.

(4) “Health care decision” means consent, refusal to consent, or withdrawal of consent to any health care.

(5) “Health care facility” shall have the same meaning as in subdivision 9432(7) of this title.

(6) “Health care provider” shall have the same meaning as in subdivision 9432(8) of this title and shall include emergency medical personnel.

(7) “Highly invasive health care” means:

(A) the discontinuation of life support;

(B) a request for a do-not-resuscitate order;

(C) reproductive decisions, including life support with pregnancy, sterilization, or termination of pregnancy;

(D) treatments that are intended to alter mental functioning or have a significant risk of a side effect that will permanently impair mental or bodily functions, including brain surgery, psychotropic medications, and electroconvulsive therapy; and

(E) potentially lifesaving experimental procedures for terminal conditions when other usual health care treatments have failed.

(8) “Incompetent for health care decisions” means a clinician has determined that an individual is unable to make and communicate a decision regarding proposed health care. An individual shall be deemed competent if the individual has a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.

(9) “Interested party” means a responsible adult who has a direct interest in an individual who is incompetent for health care decisions, and includes the proposed individual, a near relative, a guardian, a public official, a social worker, a clinician or a member of the clergy.

(10) “Invasive health care” means health care for which an ordinary prudent individual would seek information about the risks and benefits in order to make informed consent and any written consent required.

(11) “Near relative” means a parent, stepparent, brother, sister, grandparent, or adult child.

(12) “Routine health care” means health care that is assumed to be the ordinary response to a course of illness or injury, including prevention, screening, and diagnostic, outpatient, and inpatient care that is not urgent or an emergency.

(13) “Urgent” means a delay of more than five days will be likely to cause serious and irreversible harm to the individual’s health.

§ 3042. PETITION FOR MEDICAL GUARDIANSHIP

(a) Any interested party may file a petition with the probate court for the appointment of a medical guardian for an adult incompetent for health care decisions. The petition shall include:

(1) the name and address of the petitioner, the name, address, and age of the individual claimed to be incompetent for health care decisions, and if known, the name and address of a near relative of the individual subject to the petition;

(2) the interest of the petitioner in the individual subject to the petition;

(3) the facts in support of the allegation that the individual is incompetent for health care decisions;

(4) the facts and circumstances of the health care treatment sought, if any;

(5) the name and address of any proposed medical guardian and the relationship of the proposed guardian to the individual subject to the petition; and

(6) a copy of any advance directive executed pursuant to chapter 111 of Title 18 by the individual subject to the petition.

(b) An interested party may only file a petition under this section when there is a validly executed advance directive pursuant to chapter 111 of Title18 if:

(1) the individual executing the advance directive is alleged not to have been competent when the advance directive was completed;

(2) the appointed agent or instructions of the individual contained in the advance directive are not being followed;

(3) the appointed agent or health care provider is not following the expressed wishes of the individual in the manner intended;

(4) the interested party believes the individual subject to the petition is competent; and

(5) the advance directive does not designate an agent or the health care decision is outside the scope of the advance directive.

(c) A petition under this section may be filed for a limited, specified time period or circumstance or may be filed for permanent medical guardianship.

§ 3043. CONSENT FOR MEDICAL TREATMENT

(a) If no guardianship petition has been filed, a clinician shall determine if the individual is incompetent for health care decisions. If the individual is competent for health care decisions, the individual’s informed consent shall be obtained before the health care is performed. In such cases, the individual’s consent shall be determinative, and no other consent is necessary. If the individual is incompetent for health care decisions, the procedures under this subchapter shall be followed prior to providing the health care unless otherwise provided for in subsection 3051(b) of this title.

(b) If an individual has completed an advance directive and is found to be incompetent for health care decisions by the individual’s clinician, any agent or explicit directions in the advance directive shall be binding without involvement of the probate court.

§ 3044. NOTICE OF PETITION AND HEARING

(a) Upon the filing of the petition, the probate court shall schedule a hearing, and notice shall be given as provided by the rules of probate procedure except as otherwise provided in this subchapter.

(b) The hearing shall be held not less than 15 nor more than 30 days after the petition is filed with the court, except as provided for in section 3051 of this title. The hearing may be continued for good cause shown for not more than 15 additional days.

(c) If the petition is uncontested, the court may waive the requirement to hold a hearing.

(d) If adherence to the procedures set out in this subchapter would cause serious and irreparable harm to the respondent’s health or if otherwise provided for in this subchapter, the court may hold an emergency hearing as soon as practicable.

§ 3045. COUNSEL

(a) Counsel shall be appointed for the respondent in initial proceedings relating to a medical guardianship up to and including the appointment of a guardian or dismissal of the petition. Counsel shall have the right to withdraw after a guardian is appointed or after dismissal.

(b) Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court. Counsel shall consult with the respondent prior to the hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents.

(c) Respondent’s counsel shall be compensated from the respondent’s estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure. For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

§ 3046. GUARDIAN AD LITEM

On motion of the respondent’s or ward’s counsel or on the court’s own motion, the court may appoint a guardian ad litem if it finds the respondent or ward is unable to communicate with or advise counsel.

§ 3047. HEARINGS

(a) All individuals to whom notice has been given pursuant to section 3044 of this title may attend the hearing and testify. The respondent and the petitioner may subpoena, present, and cross-examine witnesses. The court may exclude any person not necessary for the conduct of the hearing on motion of the respondent.

(b) The hearing shall be conducted in a manner consistent with orderly procedure and in a setting not likely to have a harmful effect on the health of the respondent.

(c) Either party may be represented by counsel in any proceedings brought under this chapter.

(d) If upon completion of the hearing and consideration of the record the court finds that the respondent is not incompetent for health care decisions, it shall dismiss the petition and seal the records of the proceeding.

(e) Except as provided for in subsection (f) of this section, if upon completion of the hearing and consideration of the record the court finds that the petitioner has proved by a preponderance of the evidence that the respondent is incompetent for health care decisions, it shall enter judgment specifying the powers and duties of the medical guardian pursuant to sections 3047 and 3048 of this title.

(f) In order to enter judgment approving highly invasive health care or any health care objected to by the respondent through actions or verbal communications, the court shall find that the petitioner has proven by clear and convincing evidence that the respondent is incompetent for health care decisions, and that the respondent would have wanted the highly invasive health care if competent. If upon completion of the hearing and consideration of the record the court makes these findings, it shall enter judgment specifying the powers and duties of the medical guardian pursuant to sections 3047 and 3048 of this title.

(g) Any party to the proceeding before the court may appeal the court’s decision in the manner provided in section 3053 of this title.

§ 3048. MEDICAL GUARDIANS; INDIVIDUALS WHO MAY SERVE

(a) Competent individuals of at least 18 years of age may serve as medical guardians. The following persons may not serve as a medical guardian:

(1) an individual disqualified by the respondent personally informing the respondent’s health care provider or by another reliable means;

(2) the respondent’s health care provider; or

(3) an owner, operator, or employee of a health care facility or residential care facility in which the principal resides, unless related to the principal by blood, marriage, or adoption.

(b) In appointing an individual to serve as medical guardian, the court shall select an individual with a close relationship to the respondent and most likely to be currently informed of and able to implement the principal’s wishes and values regarding health care.

(c) The court shall appoint the individual chosen or desired by the respondent to be the medical guardian if the respondent can identify who the individual wants as medical guardian and has a basic understanding of what it means to have another individual make health care decisions for oneself and who would be an appropriate individual to make those decisions.

§ 3049. POWERS AND DUTIES OF PROPOSED MEDICAL GUARDIANS

(a) Unless there is an objection filed with the court, a proposed medical guardian shall automatically have the powers and duties of a medical guardian after filing a petition with the probate court and prior to hearing when the health care to be provided is routine.

(b) A proposed medical guardian shall have the powers and duties of a medical guardian for specific invasive or highly invasive health care if the health care is urgent or an emergency and if the procedures required in section 3051 of this title are followed.

§ 3050. POWERS AND DUTIES OF A MEDICAL GUARDIAN

(a) After consultation with the individual’s clinician and any other appropriate health care providers, a medical guardian shall make routine health care decisions for an individual without further involvement of the probate court.

(b) After consultation with the individual’s clinician and any other appropriate health care providers, the medical guardian shall make health care decisions based upon the following and in the following order of priority:

(1) in accordance with the individual’s specific instructions contained in any advance directive, to the extent those directions are applicable;

(2) in accordance with the individual’s wishes previously expressed orally to the medical guardian or health care provider, to the extent those expressions are applicable;

(3) in accordance with the knowledge of the guardian of the individual’s values or religious or moral beliefs; or

(4) if the individual’s wishes, values, and beliefs cannot be determined or the guardian deems them inapplicable, in accordance with the assessment of the guardian of the individual’s best interests.