SB1323

SECTION 1. In 1999, the legislature passed the Uniform Health-Care Decisions Act (1993), which was enacted and codified as chapter 327E, Hawaii Revised Statutes, and in 2004, passed an advance mental health care directives law, which was enacted and codified as chapter 327G, Hawaii Revised Statutes.

The legislature finds that these laws should be updated and consolidated into one unified law regarding health-care decisions to avoid confusion and conflicting provisions. In 2023, the Uniform Law Commission approved and recommended for enactment in all states the Uniform Health-Care Decisions Act (2023). While existing Hawaii law addresses advance directives broadly, the Uniform Health-Care Decisions Act (2023) does so more comprehensively by dividing various types of advance directives into separate sections for power of attorney for health care, health-care instructions, and advance mental health-care directives.

Among other things, the Uniform Health-Care Decisions Act (2023) expands upon the framework for determining whether an individual has capacity, removes legal hurdles for creating advance directives, addresses both advance health-care directives and advance mental health-care directives within the same statutory framework, and allows an individual to assent to a "Ulysses clause" in an advance mental health-care directive, which allows an individual to include an instruction that prevents the individual from revoking the advance directive if the individual is experiencing a psychiatric or psychological event specified in the directive.

Therefore, the purpose of this Act is to update laws concerning advance health-care directives and advance mental health-care directives by adopting the Uniform Health-Care Decisions Act (2023) in amended form.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

HEALTH-CARE DECISIONS

§ -1 Short title. This chapter may be cited as the Uniform Health-Care Decisions Act (modified).

§ -2 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Advance health-care directive" means a power of attorney for health care, health-care instruction, or both. The term includes an advance mental health-care directive.

"Advance mental health-care directive" means a power of attorney for health care, health-care instruction, or both, created under section -9.

"Advanced practice registered nurse" means a registered nurse licensed to practice in this State who:

(1) Has met the qualifications set forth in chapter 457;

(2) Because of advanced education and specialized clinical training, is authorized to assess, screen, diagnose, order, utilize, or perform medical, therapeutic, preventive, or corrective measures; and

(3) Holds an accredited national certification in an advanced practice registered nurse psychiatric mental-health specialization.

"Agent" means an individual appointed under a power of attorney for health care to make a health-care decision for the individual who made the appointment. The term includes a co-agent or alternate agent appointed under section -20.

"Capacity" means having capacity under section -3.

"Civil union partner" means an individual who is party to a civil union established pursuant to chapter 572B.

"Cohabitant" means each of two individuals who have been living together as a couple for at least one year after each became an adult or was emancipated, and who are not married to each other or are not in a civil union with each other.

"Default surrogate" means an individual authorized under section -12 to make a health-care decision for another individual.

"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

"Emancipated minor" means a minor deemed to be emancipated pursuant to section 577-25 or order of the family court.

"Emergency medical services personnel" has the same meaning as in section 321-222.

"Family member" means a spouse, civil union partner, adult child, parent, or grandparent, or an adult child of a spouse, civil union partner, child, parent, or grandparent.

"First responder personnel" has the same meaning as in section 321-222.

"Guardian" means a person appointed under chapter 560, article v, part 3, by a court to make decisions regarding the personal affairs of an individual, which may include health-care decisions. The term does not include a guardian ad litem.

"Health care" means care or treatment or a service or procedure to maintain, monitor, diagnose, or otherwise affect an individual's physical or mental illness, injury, or condition. The term includes mental health care.

"Health-care decision" means a decision made by an individual or the individual's surrogate regarding the individual's health care, including:

(1) Selection or discharge of a health-care professional or health-care institution;

(2) Approval or disapproval of a diagnostic test, surgical procedure, medication, therapeutic intervention, or other health care; and

(3) Direction to provide, withhold, or withdraw artificial nutrition or hydration, mechanical ventilation, or other health care.

"Health-care institution" means a facility or agency licensed, certified, or otherwise authorized or permitted by other law to provide health care in this State in the ordinary course of business.

"Health-care instruction" means a direction, whether or not in a record, made by an individual that indicates the individual's goals, preferences, or wishes concerning the provision, withholding, or withdrawal of health care. The term includes a direction intended to be effective if a specified condition arises.

"Health-care professional" means a physician or other individual licensed, certified, or otherwise authorized or permitted by other law of this State to provide health care in this State in the ordinary course of business or the practice of the physician's or individual's profession.

"Individual" means an adult or emancipated minor.

"Mental health care" means care or treatment or a service or procedure to maintain, monitor, diagnose, or otherwise affect an individual's mental illness or other psychiatric, psychological, or psychosocial condition.

"Minor" means a person less than eighteen years of age.

"Nursing home" means a nursing facility as defined in section 1919(a)(1) of the Social Security Act, title 42 U.S.C. section 1396r(a)(1), or skilled nursing facility as defined in section 1819(a)(1) of the Social Security Act, title 42 U.S.C. section 1395i–3(a)(1).

"Person" means an individual, estate, business or nonprofit entity, government or governmental subdivision, agency, or instrumentality, or other legal entity.

"Person interested in the welfare of the individual" means:

(1) The individual's surrogate;

(2) A family member of the individual;

(3) The cohabitant of the individual;

(4) A public entity providing health-care case management or protective services to the individual;

(5) A person appointed under other law to make decisions for the individual under a power of attorney for finances; or

(6) A person that has an ongoing personal or professional relationship with the individual, including a person that has provided educational or health-care services or supported decision making to the individual.

"Physician" means an individual authorized to practice medicine or osteopathy under chapter 453.

"Psychologist" means an individual authorized to practice psychology under chapter 465.

"Power of attorney for health care" means a record in which an individual appoints an agent to make health-care decisions for the individual.

"Reasonably available" means being able to be contacted without undue effort and being willing and able to act in a timely manner considering the urgency of an individual's health-care situation. When used to refer to an agent or default surrogate, the term includes being willing and able to comply with the duties under section -17 in a timely manner considering the urgency of an individual's health-care situation.

"Record" means information:

(1) Inscribed on a tangible medium; or

(2) Stored in an electronic or other medium and retrievable in perceivable form.

"Responsible health-care professional" means:

(1) A health-care professional designated by an individual or the individual's surrogate to have primary responsibility for the individual's health care or for overseeing a course of treatment; or

(2) In the absence of a designation under paragraph (1) or, if the professional designated under paragraph (1) is not reasonably available, a health-care professional who has primary responsibility for overseeing the individual's health care or for overseeing a course of treatment.

"Sign" means, with present intent to authenticate or adopt a record:

(1) Execute or adopt a tangible symbol; or

(2) Attach to or logically associate with the record an electronic symbol, sound, or process.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any other territory or possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe.

"Supported decision making" means assistance, from one or more persons of an individual's choosing, that helps the individual make or communicate a decision, including by helping the individual understand the nature and consequences of the decision.

"Surrogate" means:

(1) An agent;

(2) A default surrogate; or

(3) A guardian authorized to make health-care decisions.

§ -3 Capacity. (a) An individual shall be deemed to have capacity for the purpose of this chapter if the individual:

(1) Is willing and able to communicate a decision independently or with appropriate services, technological assistance, supported decision making, or other reasonable accommodation; and

(2) In making or revoking:

(A) A health-care decision, understands the nature and consequences of the decision, including the primary risks and benefits of the decision;

(B) A health-care instruction, understands the nature and consequences of the instruction, including the primary risks and benefits of the choices expressed in the instruction; and

(C) An appointment of an agent under a health-care power of attorney or identification of a default surrogate under section -12(b), recognizes the identity of the person being appointed or identified and understands the general nature of the relationship of the individual making the appointment or identification with the person being appointed or identified.

(b) The right of an individual who has capacity to make a decision about the individual's health care shall not be affected by whether the individual creates or revokes an advance health-care directive.

§ -4 Presumption of capacity; overcoming presumption. (a) An individual shall be presumed to have capacity to make or revoke a health-care decision, health-care instruction, and power of attorney for health care unless:

(1) A court has found the individual lacks capacity to do so; or

(2) The presumption is rebutted under subsection (b).

(b) Subject to sections -5 and -6, a presumption under subsection (a) may be rebutted by a finding that the individual lacks capacity:

(1) Subject to subsection (c), made on the basis of a contemporaneous examination by any of the following health-care professionals:

(A) A physician;

(B) A psychologist; or

(2) Made in accordance with accepted standards of the profession and the scope of practice of the health-care professional making the finding and to a reasonable degree of certainty; and

(3) Documented in a record signed by the health-care professional making the finding that includes an opinion of the cause, nature, extent, and probable duration of the lack of capacity.

(1) A family member of the individual presumed to have capacity;

(2) The cohabitant of the individual or a family member of the cohabitant; or

(3) The individual's surrogate or a family member of the surrogate.

(d) If the finding under subsection (b) was based on a condition the individual no longer has or a responsible health-care professional subsequently has good cause to believe the individual has capacity, the individual shall be presumed to have capacity unless a court finds the individual lacks capacity pursuant to section -6 or the presumption is rebutted under subsection (b).

§ -5 Notice of finding of lack of capacity; right to object. (a) As soon as reasonably feasible, a health-care professional who makes a finding under section -4(b) shall inform the individual about whom the finding was made or the individual's responsible health-care professional of the finding.

(b) As soon as reasonably feasible, a responsible health-care professional who is informed of a finding under section -4(b) shall inform the individual about whom the finding was made and the individual's surrogate.

(1) By orally informing a responsible health-care professional;

(2) In a record provided to a responsible health-care professional or the health-care institution in which the individual resides or is receiving care; or

(3) By another act that clearly indicates the individual's objection.

(d) If the individual objects under subsection (c), the individual shall be treated as having capacity unless:

(1) The individual withdraws the objection;

(2) A court finds the individual lacks the presumed capacity;

(3) The individual is experiencing a health condition requiring a decision regarding health-care treatment to be made promptly to avoid imminent loss of life or serious harm to the health of the individual; or

(4) Subject to subsection (e), the finding is confirmed by a second finding made by a health-care professional authorized under section -4(b)(1) who:

(A) Did not make the first finding;

(B) Is not a family member of the health-care professional who made the first finding; and

(C) Is not the cohabitant of the health-care professional who made the first finding or a family member of the cohabitant.

(e) A second finding that the individual lacks capacity under subsection (d)(4) shall not be sufficient to rebut the presumption of capacity if the individual is requesting the provision or continuation of life-sustaining treatment and the finding is being used to make a decision to withhold or withdraw the treatment.

(f) As soon as reasonably feasible, a health-care professional who is informed of an objection under subsection (c) shall:

(1) Communicate the objection to a responsible health-care professional; and

(2) Document the objection and the date of the objection in the individual's medical record or communicate the objection and the date of the objection to an administrator with responsibility for medical records of the health-care institution providing health care to the individual, who shall document the objection and the date of the objection in the individual's medical record.

§ -6 Judicial review of finding of lack of capacity. (a) An individual found under section -4(b) to lack capacity, a responsible health-care professional, the health-care institution providing health care to the individual, or a person interested in the welfare of the individual may petition the family court in the county where the individual resides or is located to determine whether the individual lacks capacity.

(b) The court in which a petition under subsection (a) is filed may appoint a guardian ad litem. The court shall hear the petition as soon as practicable after the petition is filed. As soon as practicable after the hearing, the court shall determine whether the individual lacks capacity. The court may determine that the individual lacks capacity only if the court finds by clear and convincing evidence that the individual lacks capacity.

§ -7 Health-care instruction. (a) An individual may create a health-care instruction that expresses the individual's preferences for future health care, including preferences regarding:

(1) Health-care professionals or health-care institutions;

(2) How a health-care decision will be made and communicated;

(3) Persons that should or should not be consulted regarding a health-care decision;

(4) A person to serve as guardian for the individual if one is appointed; and

(5) An individual to serve as a default surrogate.

(b) A health-care professional to whom an individual communicates or provides an instruction under subsection (a) shall document and maintain the instruction and the date of the instruction in the individual's medical record or communicate the instruction and date of the instruction to an administrator with responsibility for medical records of the health-care institution providing health care to the individual, who shall document and maintain the instruction and the date of the instruction in the individual's medical record.

(c) A health-care instruction made by an individual that conflicts with an earlier health-care instruction made by the individual, including an instruction documented in a medical order, shall revoke the earlier instruction to the extent of the conflict.

(d) A health-care instruction may be in the same record as a power of attorney for health care.

§ -8 Power of attorney for health care. (a) An individual may create a power of attorney for health care to appoint an agent to make health-care decisions for the individual.

(b) A person shall be disqualified from acting as an agent for an individual who is found under section -4(b) or by a court to lack capacity to make health-care decisions if:

(1) A court finds that the potential agent poses a danger to the individual's well-being, even if the court does not issue a restraining order or injunction against the potential agent; or

(2) The potential agent is an owner, operator, employee, or contractor of a nursing home, or other residential care facility in which the individual resides or is receiving care, unless the owner, operator, employee, or contractor is a family member of the individual, the cohabitant of the individual, or a family member of the cohabitant.

(d) A power of attorney for health care shall be in a record, signed by the individual creating the power, and signed by an adult witness who:

(1) Reasonably believes the act of the individual to create the power of attorney is voluntary and knowing;

(2) Is not:

(A) The agent appointed by the individual;

(B) The agent's spouse, civil union partner, or cohabitant;

(C) If the individual resides or is receiving care in a nursing home or other residential care facility, the owner, operator, employee, or contractor of the nursing home or other residential care facility; and

(3) Is present when the individual signs the power of attorney or when the individual represents that the power of attorney reflects the individual's wishes.

(e) A witness under subsection (d) shall be considered present if the witness and the individual are:

(1) Physically present in the same location;

(2) Using electronic means that allow for real time audio and visual transmission and communication in real time to the same extent as if the witness and the individual were physically present in the same location; or

(3) Able to speak to and hear each other in real time through audio connection if:

(A) The identity of the individual is personally known to the witness; or

(B) The witness is able to authenticate the identity of the individual by receiving accurate answers from the individual that enable the authentication.

(f) A power of attorney for health care may include a health-care instruction.

§ -9 Advance mental health-care directive. (a) An individual may create an advance health-care directive that addresses only mental health care for the individual. The directive may include a health-care instruction, a power of attorney for health care, or both.

(b) A health-care instruction under this section may include the individual's:

(1) General philosophy and objectives regarding mental health care;

(2) Specific goals, preferences, and wishes regarding the provision, withholding, or withdrawal of a form of mental health care, including:

(A) Preferences regarding professionals, programs, and facilities;

(B) Admission to a mental health-care facility, including duration of admission;

(D) Refusal to accept a specific type of mental health care, including medication; and

(E) Preferences regarding crisis intervention.

(c) A power of attorney for health care under this section may appoint an agent to make decisions only for mental health care.

(d) An individual may direct in an advance mental health-care directive that, if the individual is experiencing a psychiatric or psychological event specified in the directive, the individual may not revoke the directive or a part of the directive.

(e) If an advance mental health-care directive includes a direction under subsection (d), the advance mental health-care shall be signed by the individual creating the advance mental health-care directive and at least two adult witnesses who:

(1) Attest that to the best of their knowledge the individual:

(A) Understood the nature and consequences of the direction, including its risks and benefits; and

(B) Made the direction voluntarily and without coercion or undue influence;

(2) Are not:

(A) The agent appointed by the individual;

(B) The agent's spouse, civil union partner, or cohabitant; and

(C) If the individual resides in a nursing home or other residential care facility the owner, operator, employee, or contractor of the nursing home or other residential care facility; and

(3) Are physically present in the same location as the individual.

§ -10 Relationship of advance mental health-care directive and other advance health-care directive. (a) If a direction in an advance mental health-care directive of an individual conflicts with a direction in another advance health-care directive of the individual, the later direction shall revoke the earlier direction to the extent of the conflict.

(b) An appointment of an agent to make decisions only for mental health care for an individual shall not revoke an earlier appointment of an agent to make other health-care decisions for the individual.

(c) An appointment of an agent to make decisions only for mental health care decisions for an individual shall revoke an earlier appointment of an agent to make mental health care decisions for the individual unless otherwise specified in the later appointment.

(d) An appointment of an agent to make health-care decisions for an individual other than decisions about mental health care shall not revoke a prior appointment of an agent to make only mental health-care decisions.

§ -11 Model forms. The department of health, in consultation with the department of the attorney general, shall develop, publish, and update as appropriate model forms of advance health-care directives and advance mental health-care directives, which shall be posted on the department of health's website.

§ -12 Default surrogate. (a) A default surrogate may make a health-care decision for an individual who lacks capacity to make health-care decisions and for whom an agent, or guardian authorized to make health-care decisions, has not been appointed or is not reasonably available.

(b) Upon determination that an individual lacks capacity to make health-care decisions, a responsible health-care professional or the responsible health-care professional's designee shall make reasonable efforts to notify the individual of the individual's lack of capacity to make health-care decisions. If the individual has not appointed an agent and the individual retains capacity under section -3(a)(1) and (2)(C), the individual may identify a person to act as a default surrogate.

(c) Unless the individual has an advance health-care directive that indicates otherwise or the person identified by the individual under subsection (b) is designated as a default surrogate, the responsible health-care professional or the responsible health-care professional's designee shall make reasonable efforts to locate as many interested persons as practicable, and the responsible health-care professional or the responsible health-care professional's designee may rely on the interested persons to notify other family members or interested persons. Upon locating interested persons, the responsible health-care professional or the responsible health-care professional's designee shall inform the interested persons of the individual's lack of capacity and that a default surrogate should be selected for the individual.

(d) Interested persons shall make reasonable efforts to reach a consensus as to who among them shall act as the individual's default surrogate. If the person selected to act as the individual's default surrogate is disqualified or becomes disqualified under section –13, the interested persons shall make reasonable efforts to reach consensus as to who among them shall act as the individual's default surrogate.

The person selected to act as the individual's default surrogate shall be the person who has a close relationship with the individual and who is the most likely to be currently informed of the individual's wishes regarding health-care decisions.

(e) If any of the interested persons disagrees with the selection of the default surrogate or the health-care decision by the default surrogate, or, if after reasonable efforts the interested persons are unable to reach a consensus as to who should act as the default surrogate, any of the interested persons may seek guardianship of the individual by initiating guardianship proceedings pursuant to chapter 551 or chapter 560, as applicable. Only interested persons involved in the discussions to choose a default surrogate may initiate such proceedings with regard to the individual.

(f) A responsible health-care professional may require a person who assumes authority to act as a default surrogate to provide a signed declaration in a record under penalty of law stating facts and circumstances reasonably sufficient to establish the authority. The signed declaration shall include the following:

(1) The name of the person who seeks to assume the authority to act as a default surrogate;

(2) An affirmation that the person understands that the statements and affirmations are made under the penalty of law;

(3) An affirmation that the person had a relationship with the individual who lacks capacity prior to the individual becoming incapacitated;

(4) A statement defining that relationship, including identifying the relationship of the person to the individual;

(5) If the person is not a family member or cohabitant, a statement describing how the person exhibited special care and concern for the individual who lacks capacity and is familiar with the individual's personal values; and

(6) Affirmation that the person understands that the health-care professional will reasonably rely on the person's representations in the declaration to assist in providing medical treatment.

(g) If a responsible health-care professional reasonably determines that a person who assumed authority to act as a default surrogate is not willing or able to comply with a duty under section -17 or fails to comply with the duty in a timely manner, the professional may request interested persons to choose another default surrogate.

(h) A health-care decision made by a default surrogate shall be effective without judicial approval.

(i) As used in this section, unless the context clearly requires otherwise, "interested persons" means any of the individual's family members or any adult who has exhibited special care and concern for the individual and who is familiar with the individual's personal values.

§ -13 Disqualification to act as default surrogate. (a) An individual for whom a health-care decision would be made may disqualify a person from acting as default surrogate for the individual by expressing the wish to disqualify that person. The disqualification shall be in a record signed by the individual or communicated verbally or nonverbally by the individual to the person being disqualified, another person, or a responsible health-care professional. If the individual has expressed that the individual did not want a particular person to make health-care decisions for the individual, that person shall be disqualified from being a default surrogate. Disqualification under this subsection shall be effective even if made by an individual who is found under section -4(b) or by a court to lack capacity to make a health-care decision if the individual clearly communicates a desire that the person being disqualified not make health-care decisions for the individual.

(b) A person shall be disqualified from acting as a default surrogate for an individual who lacks capacity to make health-care decisions if:

(1) A court finds that the potential default surrogate poses a danger to the individual's well-being, even if the court does not issue a restraining order or injunction against the potential surrogate;

(2) The potential default surrogate is an owner, operator, employee, or contractor of a nursing home or other residential care facility in which the individual is residing or receiving care unless the owner, operator, employee, or contractor is a family member of the individual, the cohabitant of the individual, or a family member of the cohabitant;

(3) The potential default surrogate refuses to provide a timely declaration under section -12(f) upon the request by a responsible health-care professional; or

(4) The potential default surrogate is the individual's spouse or civil union partner, and:

(A) A petition for annulment, divorce, or dissolution of marriage, legal separation, or termination has been filed and not dismissed or withdrawn; or

(B) A decree of annulment, divorce, or dissolution of marriage, legal separation, or termination has been issued, the individual and the spouse or civil union partner have agreed in a record to a legal separation; or

(c) Notwithstanding subsection (b)(4), a spouse or civil union partner shall not be disqualified if the individual has retained capacity under section -3(a)(1) and (2)(C) and expresses the wish not to disqualify the spouse or civil union partner as a default surrogate.

§ -14 Revocation. (a) An individual may revoke the appointment of an agent, the designation of a default surrogate, or a health-care instruction in whole or in part, unless:

(1) A court finds the individual lacks capacity to do so;

(2) The individual is found under section -4(b) to lack capacity to do so and, if the individual objects to the finding, the finding is confirmed under section -5(d)(4); or

(3) The individual created an advance mental health-care directive that includes the provision under section -9(d) and the individual is experiencing the psychiatric or psychological event specified in the directive.

(b) Revocation under subsection (a) may be by any act of the individual that clearly indicates that the individual revokes the appointment, designation, or instruction, including an oral statement to a health-care professional.

(c) Except as provided in section -10, an advance health-care directive of an individual that conflicts with another advance health-care directive of the individual shall revoke the earlier directive to the extent of the conflict.

(d) Unless otherwise provided in an individual's advance health-care directive appointing an agent, the appointment of a spouse or civil union partner of an individual as agent for the individual shall be revoked if:

(1) A petition for annulment, divorce, legal separation, or termination has been filed and not dismissed or withdrawn;

(2) A decree of annulment, divorce, legal separation, or termination has been issued;

(3) The individual and the spouse or civil union partner have agreed in a record to a legal separation; or

(4) The spouse or civil union partner has abandoned or deserted the individual for more than one year.

§ -15 Withdrawal of agent. An agent may withdraw by giving notice to the individual for whom the agent is acting, if the individual has capacity at the time. If the individual is found under section -4(b) or by a court to lack capacity, the agent may withdraw by giving notice to a responsible health-care professional.

§ -16 Validity of advance health-care directive; conflict with other law. (a) An advance health-care directive created outside this State shall be valid if it complies with:

(1) The law of the state specified in the directive or, if a state is not specified, the state in which the individual created the directive; or

(2) This chapter.

(b) A person may assume without inquiry that an advance health-care directive is genuine, valid, and still in effect, and may implement and rely on it, unless the person has good cause to believe the directive is invalid or has been revoked.

(c) An advance health-care directive, revocation of a directive, or a signature on a directive or revocation shall not be denied legal effect or enforceability solely because it is in electronic form.

(d) Evidence relating to an advance health-care directive, revocation of a directive, or a signature on a directive or revocation shall not be excluded in a proceeding solely because the evidence is in electronic form.

(e) This chapter shall not affect the validity of an electronic record or signature that is valid under chapter 489E.

(f) If this chapter conflicts with other laws of this State relating to the creation, execution, implementation, or revocation of an advance health-care directive, this chapter shall prevail.

§ -17 Duties of agent and default surrogate. (a) An agent or default surrogate shall have a fiduciary duty to the individual for whom the agent or default surrogate is acting when exercising or purporting to exercise a power under section -18.

(b) An agent or default surrogate shall make a health-care decision in accordance with the direction of the individual in an advance health-care directive and other goals, preferences, and wishes of the individual to the extent known or reasonably ascertainable by the agent or default surrogate.

(c) If there is not a direction in an advance health-care directive and the goals, preferences, and wishes of the individual regarding a health-care decision are not known or reasonably ascertainable by the agent or default surrogate, the agent or default surrogate shall make the decision in accordance with the agent's or default surrogate's determination of the individual's best interest.

(d) In determining the individual's best interest under subsection (c), the agent or default surrogate shall:

(1) Give primary consideration to the individual's contemporaneous communications, including verbal and nonverbal expressions;

(2) Consider the individual's values to the extent known or reasonably ascertainable by the agent or default surrogate; and

(3) Consider the risks and benefits of the potential health-care decision.

(e) As soon as reasonably feasible, an agent or default surrogate who is informed of a revocation of an advance health-care directive or disqualification of the agent or default surrogate shall communicate the revocation or disqualification to a responsible health-care professional.

§ -18 Powers of agent and default surrogate. (a) Except as provided in subsection (c), the power of an agent or default surrogate shall commence when the individual is found under section -4(b) or by a court to lack capacity to make a health-care decision. The power shall cease if the individual later is found to have capacity to make a health-care decision, or the individual objects under section -5(c) to the finding of lack of capacity under section -4(b). The power shall resume if:

(1) The power ceased because the individual objected under section -5(c); and

(2) The finding of lack of capacity is confirmed under section -5(d)(4) or a court finds that the individual lacks capacity to make a health-care decision.

(b) An agent or default surrogate may request, receive, examine, copy, and consent to the disclosure of medical and other health-care information about the individual if the individual would have the right to request, receive, examine, copy, or consent to the disclosure of the information.

(c) A power of attorney for health care may provide that the power of an agent under subsection (b) commences on appointment.

(d) If no other person is authorized to do so, an agent or default surrogate may apply for private health insurance and benefits on behalf of the individual. An agent or default surrogate who may apply for insurance and benefits shall not, solely by reason of the power, have a duty to apply for the insurance or benefits.

A default surrogate may act as a medicaid authorized representative, pursuant to federal and state medicaid laws relating to authorized representatives, on the individual's behalf for the purposes of medicaid, including assisting with, submitting, and executing a medicaid application, redetermination of eligibility, or other on-going medicaid-related communications with the department of human services. For the purposes of medicaid, the default surrogate may access medicaid records of the individual on whose behalf the default surrogate is designated to act. For a default surrogate to be able to act under this subsection, the default surrogate shall agree to be legally bound by the federal and state authorities related to authorized representatives, including maintaining the confidentiality of any information provided by the department of human services, in compliance with all state and federal confidentiality laws.

The agent of default surrogate's status as an authorized representative for the purposes of medicaid shall terminate when revoked by an individual who no longer lacks capacity, upon appointment or availability of another agent or guardian, or upon the individual's death.

(e) An agent or default surrogate shall not consent to voluntary admission of the individual to a facility for mental health treatment unless:

(1) Voluntary admission is specifically authorized by the individual in an advance health-care directive in a record; and

(2) The admission is for no more than the maximum of the number of days specified in the directive or thirty days, whichever is less.

(f) An agent or default surrogate may consent to placement of the individual in a nursing home without specific authorization by the individual; provided that if the placement is intended to be for more than one hundred days an agent or default surrogate shall not consent to placement of the individual in a nursing home if:

(1) An alternative living arrangement is reasonably feasible;

(2) The individual objects to the placement; or

(3) The individual is not terminally ill.

Nothing in this subsection shall prevent an agent or default surrogate from consenting to placement of the individual in a nursing home for more than one hundred days if the individual specifically authorizes the agent or default surrogate to do so in an advance health-care directive in a record.

§ -19 Limitation on powers. (a) If an individual has a long-term disability requiring routine treatment by artificial nutrition, hydration, or mechanical ventilation and a history of using the treatment without objection, an agent or default surrogate shall not consent to withhold or withdraw the treatment unless:

(1) The treatment is not necessary to sustain the individual's life or maintain the individual's well-being;

(2) The individual has expressly authorized the withholding or withdrawal in a health-care instruction that has not been revoked; or

(3) The individual has experienced a major reduction in health or functional ability from which the individual is not expected to recover, even with other appropriate treatment, and the individual has not:

(A) Given a direction inconsistent with withholding or withdrawal; or

(B) Communicated by verbal or nonverbal expression a desire for artificial nutrition, hydration, or mechanical ventilation.

(b) A default surrogate shall not make a health-care decision if, under other laws of this State, the decision:

(1) May not be made by a guardian; or

(2) May be made by a guardian only if the court appointing the guardian specifically authorizes the guardian to make the decision.

§ -20 Co-agents; alternate agent. (a) An individual may appoint multiple individuals as co-agents in a power of attorney for health care. Unless the power of attorney provides otherwise, each co-agent may exercise independent authority.

(b) An individual in a power of attorney for health care may appoint one or more individuals to act as alternate agents if a predecessor agent withdraws, dies, becomes disqualified, is not reasonably available, or otherwise is unwilling or unable to act as agent.

(c) Unless the power of attorney provides otherwise, an alternate agent shall have the same authority as the original agent:

(1) At any time the original agent is not reasonably available or is otherwise unwilling or unable to act, for the duration of the unavailability, unwillingness, or inability to act; or

(2) If the original agent and all other predecessor agents have withdrawn, died, or are disqualified from acting as agent.

§ -21 Duties of health-care professional, responsible health-care professional, and health-care institution. (a) A responsible health-care professional who is aware that an individual has been found under section -4(b) or by a court to lack capacity to make a health-care decision shall make a reasonable effort to determine if the individual has a surrogate.

(b) If possible before implementing a health-care decision made by a surrogate, a responsible health-care professional as soon as reasonably feasible shall communicate to the individual the decision made and the identity of the surrogate.

(c) A responsible health-care professional who makes or is informed of a finding that an individual lacks capacity to make a health-care decision or no longer lacks capacity, or that other circumstances exist that affect a health-care instruction or the authority of a surrogate, as soon as reasonably feasible, shall:

(1) Document the finding or circumstance in the individual's medical record; and

(2) If possible, communicate to the individual and the individual's surrogate the finding or circumstance and that the individual may object under section -5(c) to the finding under section -4(b).

(d) A responsible health-care professional who is informed that an individual has created or revoked an advance health-care directive, or that a surrogate for an individual has been appointed, designated, or disqualified, or has withdrawn, shall:

(1) Document the information as soon as reasonably feasible in the individual's medical record; and

(2) If evidence of the directive, revocation, appointment, designation, disqualification, or withdrawal is in a record, request a copy and, on receipt, cause the copy to be included in the individual's medical record.

(e) Except as provided in subsections (f) and (g), a health-care professional or health-care institution providing health care to an individual shall comply with:

(1) A health-care instruction given by the individual regarding the individual's health care;

(2) A reasonable interpretation by the individual's surrogate of an instruction given by the individual; and

(3) A health-care decision for the individual made by the individual's surrogate in accordance with sections -17 and -18 to the same extent as if the decision had been made by the individual at a time when the individual had capacity.

(f) A health-care professional or a health-care institution may refuse to provide health care consistent with a health-care instruction or health-care decision if:

(1) The instruction or decision is contrary to a policy of the health-care institution providing care to the individual and the policy was timely communicated to the individual with capacity or to the individual's surrogate;

(2) The care would require health care that is not available to the professional or institution; or

(3) Compliance with the instruction or decision would:

(A) Require the professional to provide care that is contrary to the professional's religious belief or moral conviction and if other law permits the professional to refuse to provide care for that reason;

(B) Require the professional or institution to provide care that is contrary to generally accepted health-care standards applicable to the professional or institution; or

(g) A health-care professional or health-care institution that refuses to provide care under subsection (f) shall:

(1) As soon as reasonably feasible, inform the individual, if possible, and the individual's surrogate of the refusal; and

(2) Immediately make a reasonable effort to transfer the individual to another health-care professional or health-care institution that is willing to comply with the instruction or decision and provide life-sustaining care and care needed to keep or make the individual comfortable, consistent with accepted medical standards to the extent feasible, until a transfer is made.

§ -22 Decision by guardian. (a) A guardian may refuse to comply with or revoke the individual's advance health-care directive only if the court appointing the guardian expressly orders the noncompliance or revocation.

(b) Unless a court orders otherwise, a health-care decision made by an agent appointed by an individual subject to guardianship prevails over a decision of the guardian appointed for the individual.

§ -23 Immunity. (a) A health-care professional or health-care institution acting in good faith shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for:

(1) Complying with a health-care decision made for an individual by another person if compliance is based on a reasonable belief that the person has authority to make the decision, including a decision to withhold or withdraw health care;

(2) Refusing to comply with a health-care decision made for an individual by another person if the refusal is based on a reasonable belief that the person lacked authority or capacity to make the decision;

(3) Complying with an advance health-care directive based on a reasonable belief that the directive is valid;

(4) Refusing to comply with an advance health-care directive based on a reasonable belief that the directive is not valid, including a reasonable belief that the directive was not made by the individual or, after its creation, was substantively altered by a person other than the individual who created it;

(5) Determining that a person who otherwise might be authorized to act as an agent or default surrogate is not reasonably available; or

(6) Complying with an individual's direction under section -9(d).

(b) An agent, default surrogate, or person with a reasonable belief that the person is an agent or a default surrogate shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for a health-care decision made in a good faith effort to comply with section -17.

§ -24 Prohibited conduct; damages. (a) A person shall not:

(1) Intentionally falsify, in whole or in part, an advance health-care directive;

(2) For the purpose of frustrating the intent of the individual who created an advance health-care directive or with knowledge that doing so is likely to frustrate the intent:

(A) Intentionally conceal, deface, obliterate, or delete the directive or a revocation of the directive without consent of the individual who created or revoked the directive; or

(B) Intentionally withhold knowledge of the existence or revocation of the directive from a responsible health-care professional or health-care institution providing health care to the individual who created or revoked the directive;

(3) Coerce or fraudulently induce an individual to create, revoke, or refrain from creating or revoking an advance health-care directive or a part of a directive; or

(4) Require or prohibit the creation or revocation of an advance health-care directive as a condition for providing health care.

(b) An individual who is the subject of conduct prohibited under subsection (a), or the individual's estate, has a cause of action against a person that violates subsection (a) for statutory damages of $25,000 or actual damages resulting from the violation, whichever is greater.

(c) Subject to subsection (d), an individual who makes a health-care instruction, or the individual's estate, has a cause of action against a health-care professional or health-care institution that intentionally violates section -21 for statutory damages of $50,000 or actual damages resulting from the violation, whichever is greater.

(d) A health-care professional who is an emergency medical services personnel or first responder personnel shall not be liable under subsection (c) for a violation of section -21(e) if:

(1) The violation occurs in the course of providing care to an individual experiencing a health condition for which the professional reasonably believes the care is appropriate to avoid imminent loss of life or serious harm to the individual or providing care;

(2) The failure to comply is consistent with accepted standards of the profession of the professional; and

(3) The provision of care does not begin in a health-care institution in which the individual resides or was receiving care.

(e) In an action under this section, a prevailing plaintiff may recover reasonable attorney's fees, court costs, and other reasonable litigation expenses.

(f) A cause of action or remedy under this section shall be in addition to any cause of action or remedy under other law.

§ -25 Effect of copy; certified physical copy. (a) A physical or electronic copy of an advance health-care directive, revocation of an advance health-care directive, or appointment, designation, or disqualification of a surrogate shall have the same effect as the original.

(b) An individual may create a certified physical copy of an advance health-care directive or revocation of an advance health-care directive that is in electronic form by affirming under penalty of law that the physical copy is a complete and accurate copy of the directive or revocation.

§ -26 Judicial relief. (a) On petition of an individual, the individual's surrogate, a health-care professional or health-care institution providing health care to the individual, or a person interested in the welfare of the individual, the family court may:

(1) Enjoin implementation of a health-care decision made by an agent or default surrogate on behalf of the individual, on a finding that the decision is inconsistent with section -17 or -18;

(2) Enjoin an agent from making a health-care decision for the individual, on a finding that the individual's appointment of the agent has been revoked or the agent:

(A) Is disqualified under section -8(b);

(B) Is unwilling or unable to comply with section -17; or

(3) Enjoin another person from acting as a default surrogate, on a finding that the other person acting as a default surrogate did not comply with section -12 or the other person:

(A) Is disqualified under section -13;

(B) Is unwilling or unable to comply with section -17; or

(4) Order the implementation of a health-care decision made:

(A) By and for the individual; or

(B) By an agent or default surrogate who is acting in compliance with the powers and duties of the agent or default surrogate.

(b) In this chapter, advocacy for the withholding or withdrawal of health care or mental health care from an individual shall not by itself be evidence that an agent or default surrogate, or a potential agent or default surrogate, poses a danger to the individual's well-being.

(c) A petition filed under this section shall include notice of the existence of an advance health-care directive, if applicable, and a copy of the directive shall be provided to the court.

(d) A proceeding under this section shall be expedited on motion by any party.

§ -27 Construction. (a) Nothing in this chapter shall be construed to authorize mercy killing, assisted suicide, or euthanasia.

(b) This chapter shall not affect other law of this State governing treatment for mental illness of an individual involuntarily committed, or an individual who is the subject of an assisted community order, under chapter 334.

(c) Death of an individual caused by withholding or withdrawing health care in accordance with this chapter shall not constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity.

(d) Nothing in this chapter shall create a presumption concerning the intention of an individual who has not created an advance health-care directive.

(e) An advance health-care directive created before, on, or after January 1, 2026, shall be interpreted in accordance with other law of this State, excluding the State's choice-of-law rules, at the time the directive is implemented.

§ -28 Uniformity of application and construction. In applying and construing this chapter, a court may consider the promotion of uniformity of the law among jurisdictions that enact it.

§ -29 Saving provisions. (a) An advance health-care directive created before January 1, 2026, shall be valid on January 1, 2026, if it complies with this chapter or complied at the time of creation with the law of the state in which it was created.

(b) This chapter shall not affect the validity or effect of an act done before January 1, 2026.

(c) A person who assumed authority to act as default surrogate before January 1, 2026, may continue to act as default surrogate until the individual for whom the default surrogate is acting regains capacity to make health-care decisions or the default surrogate is disqualified, whichever occurs first.

§ -30 Transitional provision. This chapter applies to an advance health-care directive created before, on, or after January 1, 2026."

SECTION 3. Section 321-23.6, Hawaii Revised Statutes, is amended to read as follows:

"§321-23.6 Rapid identification documents. (a) The department shall adopt rules for emergency medical services that shall include:

(1) Uniform methods of rapidly identifying an [~~adult person,~~] individual who is an adult or emancipated minor, who has certified, or for whom has been certified, in a written "comfort care only" document that the [~~person~~] individual or, consistent with chapter [~~327E,~~] , the [~~person's guardian, agent, or~~] individual's surrogate directs emergency medical services personnel, first responder personnel, and health care providers not to administer chest compressions, rescue breathing, electric shocks, or medication, or all of these, given to restart the heart if the [~~person's~~] individual's breathing or heart stops, and directs that the [~~person~~] individual is to receive care for comfort only, including oxygen, airway suctioning, splinting of fractures, pain medicine, and other measures required for comfort;

(2) The written document containing the certification shall be signed by the [~~patient~~] individual or[~~, consistent with chapter 327E,~~] the [~~person's guardian, agent, or~~] individual's surrogate, and by any two other adult persons who personally know the [~~patient;~~] individual; and

(3) The original or copy of the document, which may be in an electronic form, containing the certification and all three signatures shall be maintained by the [~~patient,~~] individual, and if applicable, the [~~patient's:~~] individual's:

(A) [~~Physician;~~] Responsible health-care professional;

(B) Attorney;

[~~(C) Guardian;~~

~~(D)~~] (C) Surrogate; or

[~~(E)~~] (D) Any other person who may lawfully act on the [~~patient's~~] individual's behalf.

[~~Two copies of the document shall be given to the patient, or the patient's guardian, agent, or surrogate.~~]

(b) The rules shall provide for the following:

(1) The [~~patient,~~] individual, or the [~~patient's guardian, agent, or~~] individual's surrogate, may verbally revoke the "comfort care only" document at any time, including during the emergency situation;

(2) An anonymous tracking system shall be developed to assess the success or failure of the procedures and to ensure that abuse is not occurring; and

(3) If an emergency medical services [~~person,~~] personnel, first responder[,] personnel, or any other [~~health care provider~~] health-care professional believes in good faith that the [~~provider's~~] professional's safety, the safety of the family or immediate bystanders, or the [~~provider's~~] professional's own conscience requires the [~~patient~~] individual be resuscitated despite the presence of a "comfort care only" document, then that [~~provider~~] professional may attempt to resuscitate that [~~patient,~~] individual, and neither the [~~provider, the ambulance service,~~] professional, the emergency medical services, nor any other person or entity shall be liable for attempting to resuscitate the [~~patient~~] individual against the [~~patient's will.~~] individual's certification.

"Emergency medical services personnel" has the same meaning as in section 321-222.

"First responder personnel" has the same meaning as in section 321-222.

"Health-care professional" has the same meaning as in section -2.

"Responsible health-care professional" has the same meaning as in section -2.

"Surrogate" has the same meaning as in section -2."

SECTION 4. Section 323G-3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§323G-3[]] Noninterference with existing health care directives. Nothing in this chapter shall be construed to interfere with the rights of an agent operating under a valid [~~health care~~] advance health-care directive under [~~section 327E-3~~] chapter or confer upon the caregiver any authority to make health care decisions on behalf of the patient unless the caregiver is designated as an agent in [~~a health care~~] an advance health-care directive under [~~section 327E-3.~~] chapter ."

SECTION 5. Section 327-21, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) As used in this section:

"Advance health-care directive" [means a record signed or authorized by a prospective donor containing the prospective donor's direction concerning a health-care decision for the prospective donor or a power of attorney for health care.] has the same meaning as in section -2.

"Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn.

"Health-care decision" means any decision regarding the health care of the prospective donor."

SECTION 6. Section 432E-4, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The provider shall discuss with the enrollee and the enrollee's immediate family both [[]advance[]] health-care directives, as provided for in chapter [~~327E, and durable powers of attorney in relation to medical treatment.~~] ."

SECTION 7. Section 560:5-304, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The petition shall set forth the petitioner's name, residence, current address if different, relationship to the respondent, and interest in the appointment and, to the extent known, state or contain the following with respect to the respondent and the relief requested:

(1) The respondent's name, age, principal residence, current street address, and, if different, the address of the dwelling in which it is proposed that the respondent will reside if the appointment is made;

(2) The name and address of the respondent's:

(A) Spouse or reciprocal beneficiary, or if the respondent has none, an adult with whom the respondent has resided for more than six months before the filing of the petition; and

(B) Adult children or, if the respondent has none, the respondent's parents and adult siblings, or if the respondent has none, at least one of the adults nearest in kinship to the respondent who can be found;

(3) The name and address of any person responsible for care or custody of the respondent;

(4) The name and address of any legal representative of the respondent;

(5) The name and address of any person nominated as guardian by the respondent[;], including, if applicable, the nomination made in the respondent's advance health-care directive under section -7(a)(4);

(6) The name and address of any agent appointed by the respondent under any [~~medical~~] advance health-care directive[~~, mental health care directive, or health care power of attorney,~~] under section -8 or, if none, any [~~designated~~] default surrogate under section [~~327E-5(f);~~] -12;

(7) The name and address of any proposed guardian and the reason why the proposed guardian should be selected;

(8) The reason why guardianship is necessary, including a brief description of the nature and extent of the respondent's alleged incapacity;

(9) If an unlimited guardianship is requested, the reason why limited guardianship is inappropriate and, if a limited guardianship is requested, the powers to be granted to the limited guardian; and

(10) A general statement of the respondent's property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts."

SECTION 8. Section 560:5-310, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) Subject to subsection (c), the court in appointing a guardian shall consider persons otherwise qualified in the following order of priority:

(1) A guardian, other than a temporary or emergency guardian, currently acting for the respondent in this State or elsewhere;

(2) A person nominated as guardian by the respondent, including the respondent's most recent nomination made in a durable power of attorney[,] or advance health-care directive if at the time of the nomination the respondent had sufficient capacity to express a preference;

(3) An agent appointed by the respondent under any [~~medical~~] advance health-care directive or health care power of attorney or, if none, any [~~designated~~] default surrogate under section [~~327E-5(f);~~] -12;

(4) The spouse or reciprocal beneficiary of the respondent or a person nominated by will or other signed writing of a deceased spouse or reciprocal beneficiary;

(5) An adult child of the respondent;

(6) A parent of the respondent, or an individual nominated by will or other signed writing of a parent; and

(7) An adult with whom the respondent has resided for more than six months before the filing of the petition."

2. By amending subsection (c) to read:

"(c) An owner, operator, [or] employee, or contractor of a long-term care institution or other care settings at which the respondent is [~~residing or~~] receiving care may not be appointed as guardian unless [~~related to the respondent by blood, marriage, or adoption,~~] the owner, operator, employee, or contractor is a family member of the respondent, the cohabitant of the respondent or a family member of the cohabitant, or otherwise ordered by the court. As used in this subsection, "cohabitant" and "family member" have the same meanings as in section -2."

SECTION 9. Section 560:5-316, Hawaii Revised Statutes, is amended by amending subsections (c), and (d) as follows:

"(c) A guardian, without authorization of the court, shall not:

(1) Revoke any [~~health care directions~~] health-care instructions set forth in any [~~medical~~] advance health-care directive or health care power of attorney of which the ward is the principal; [~~provided that the appointment of a guardian shall automatically terminate the authority of any agent designated in the medical directive or health care power of attorney;]~~ or

(2) Restrict the personal communication rights of the ward, including the right to receive visitors, telephone calls, and personal mail, unless deemed by the guardian to pose a risk to the safety or well-being of the ward.

(d) A guardian shall not initiate the commitment of a ward to a mental health-care institution except in accordance with the ward's advance health-care directive or the State's procedure for involuntary civil commitment."

SECTION 10. Section 671-3, Hawaii Revised Statutes, is amended by amending subsection (e) as follows:

"(e) For purposes of this section, "legal surrogate" means [~~an agent designated in a power of attorney for health care or surrogate designated or selected in accordance with chapter 327E.~~] an agent or default surrogate, as defined in section -2."

SECTION 11. Chapter 327E, Hawaii Revised Statutes, is repealed.

SECTION 12. Chapter 327G, Hawaii Revised Statutes, is repealed.

SECTION 13. If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act, upon its approval, shall take effect on January 1, 2026.

INTRODUCED BY:

_____________________________

BY REQUEST

THE SENATE	S.B. NO.	1323
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII