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THE SENATE |
S.B. NO. |
1323 |
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THIRTY-THIRD LEGISLATURE, 2025 |
S.D. 2 |
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STATE OF HAWAII |
H.D. 2 |
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C.D. 1 |
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A BILL FOR AN ACT
RELATING TO HEALTH CARE.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
The legislature further 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 state 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 or health care instruction, or both. "Advance health care directive"
includes an advance mental health care directive.
"Advance mental health
care directive" means a power of attorney for health care or health care
instruction, or both, created under section -9.
"Advanced practice registered
nurse" means a person licensed pursuant to section 457-8.5 and who holds
an accredited national certification in an advanced practice registered nurse
psychiatric 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. "Agent" 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. "Guardian" 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. "Health care" 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. "Health care instruction" 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 under
eighteen years of age.
"Nursing home" means a nursing
facility as defined in section 1919(a)(1) of the Social Security Act (42 U.S.C.
1396r(a)(1)), or skilled nursing facility as defined in section 1819(a)(1) of
the Social Security Act (42 U.S.C. 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 any 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 licensed to practice medicine or osteopathic medicine under chapter 453.
"Psychologist" means an individual licensed 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, "reasonably available" 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 health care 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.
"State" 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 power of
attorney for health care 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 the creation or
revocation of an advance health care directive by the individual.
§ -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
(C) An advanced
practice registered nurse;
(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
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.
(c) The finding under subsection (b) shall not be made by:
(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. (a) As
soon as reasonably feasible, a
health care professional who makes a finding under section -4(b)
shall inform the individual who is the subject of the finding 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 who is the subject of the finding and
the individual's surrogate.
(c) An individual found under
section -4(b) to lack capacity may object to the finding:
(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
(c) A health care decision made by an agent shall be effective without
judicial approval.
(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;
(D) Related to the
individual by blood, marriage, or adoption; or
(E) Entitled to any
portion of the estate upon the individual's death; 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 or 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; and
(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;
(C) Preferences
regarding medications;
(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 directive 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;
(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;
(D) Related to the
individual by blood, marriage, or adoption; or
(E) Entitled to any
portion of the estate upon the individual's death; 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 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 before 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;
(6) An 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; and
(7) A statement that the
declaration was provided under the penalty of law.
(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 responsible health care 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.
(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 default 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;
(B) A decree of annulment, divorce, or dissolution of marriage, legal separation, or termination has been issued;
(C) The individual and the spouse or civil union partner have agreed in a record to a legal separation; or
(D) The spouse or
civil union partner has abandoned or deserted the individual
for more than one year.
(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 a 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 a 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 a 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 is later 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 a 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 a default surrogate may apply for private
health insurance and benefits on behalf of the individual. An agent or a 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
ongoing 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 federal and state
confidentiality laws.
(e) An agent or a 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
not more than the maximum of the number of days specified in the directive or
thirty days, whichever is less.
(f) An agent or a 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 a 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 a 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 for health care 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 for health care 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 default 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 health care professional or health
care institution; or
(3) Compliance with the
instruction or decision would:
(A) Require the health care professional to provide care that is contrary to the health care professional's religious belief or moral conviction and if other law permits the health care professional to refuse to provide care for that reason;
(B) Require the
health care professional or health care institution to provide care that is
contrary to generally accepted health care standards applicable to the health
care professional or health care institution; or
(C) Violate a court
order or other law.
(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;
(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, shall have 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, shall have a cause of action against a health care professional or
health care institution that intentionally
violates section -21 for statutory damages of $5,000 or
actual damages resulting from the violation, whichever is greater.
(d) An emergency
department of a health care institution or 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 attorneys' 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
(C) Poses a danger to the individual's well-being;
(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
(C) Poses a danger to the well-being of the individual for whom the
person is acting as a default surrogate; 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 any other laws of this State governing treatment for mental illness
of an individual involuntarily committed, or an
individual who is the subject of an assisted community treatment 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 all other laws 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 shall apply to an advance health
care directive created before, on, or after January 1, 2026."
SECTION 3. Section 286-109.4, Hawaii Revised Statutes, is amended to read as follows:
"[[]§286-109.4[]] Designation of advance [health-care] health
care directive. On the
application form for any driver's license or license renewal, the examiner of
drivers shall ask the applicant to designate whether the applicant has an
advance [health-care] health care directive. The examiner of drivers shall issue or renew
a license bearing the designation "advance [health-care] health
care directive", a symbol, or an abbreviation thereof, for those
applicants who have so indicated.
"Advance [health-care] health care directive"
means an individual instruction in writing, a living will, or a durable power
of attorney for health care decisions.
No specific medical treatment information shall be imprinted on the
driver's license."
SECTION 4. Section 286-303, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (d) to read:
"(d) The application also shall state whether the
applicant has an advance [health-care] health care
directive. If the applicant has an
advance [health-care] health care directive, the identification
card shall bear the designation "AHCD"."
2. By amending subsection (g) to read:
"(g)
For the purpose of this section, "AHCD", which stands for
"advance [health-care] health care directive", means an
individual instruction in writing, a living will, or a durable power of
attorney for health care decisions."
SECTION 5. 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] the
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] the
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]
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.
(c) For the purposes
of this section:
"Emergency medical services personnel" has the same
meaning as defined in section 321-222.
"First responder personnel" has the same meaning as
defined in section 321-222.
"Health care professional" has the same meaning as defined
in section -2.
"Responsible health care professional" has the same
meaning as defined in section -2.
"Surrogate" has the same meaning as defined in
section ‑2."
SECTION 6. 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 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] an advance health care directive
under [section 327E-3.] chapter ."
SECTION 7. Section 325-21, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The sale of sterile hypodermic syringes in a pharmacy, physician's office, or health care institution for the purpose of preventing the transmission of dangerous blood-borne diseases, may be made solely by:
(1) A pharmacist licensed under chapter 461;
(2) A
physician as defined in section [327E-2;] -2;
(3) A
health care [provider] professional as defined in section [327E-2;]
-2; or
(4) An
authorized agent of a pharmacy, as defined in section 461-1, or of a health
care institution, as defined in section [327E-2,] -2,
operating under the direction of a licensed pharmacist or physician."
SECTION 8. Section 327-21, Hawaii Revised Statutes, is amended to read as follows:
"[[]§327-21[]]
Effect of anatomical gift on advance [health-care] health care
directive. (a) If a prospective donor has a declaration or
advance [health-care] health care directive, and the terms of the
declaration or directive and the express or implied terms of a potential
anatomical gift are in conflict with regard to the administration of measures
necessary to ensure the medical suitability of a body part for transplantation
or therapy, the prospective donor's attending physician and prospective donor
shall confer to resolve the conflict. If
the prospective donor is incapable of resolving the conflict, an agent acting
under the prospective donor's declaration or directive, or, if none or if the
agent is not reasonably available, another person authorized by law other than
this chapter to make [health-care] health care decisions on
behalf of the prospective donor, shall act for the donor to resolve the
conflict. The conflict shall be resolved
as expeditiously as possible.
Information relevant to the resolution of the conflict may be obtained
from the appropriate procurement organization and any other person authorized
to make an anatomical gift for the prospective donor under section 327‑9. Before resolution of the conflict, measures
necessary to ensure the medical suitability of the body part may not be
withheld or withdrawn from the prospective donor if withholding or withdrawing
the measures is not contraindicated by appropriate end-of-life care.
(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.]
"Advance
health care directive" has the same meaning as defined 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"] "Health care decision" means any decision
regarding the health care of the prospective donor."
SECTION 9. Section 327K-1, Hawaii Revised Statutes, is amended as follows:
1. By amending the definition of "legally authorized representative" to read:
""Legally authorized
representative" means an agent, guardian, or surrogate, as those terms are
defined in section [327E-2,] -2, or agent
designated through a power of attorney for health care,
as defined in section [327E-2.] -2."
2. By amending the definition of "provider
orders for life-sustaining treatment form" to read:
""Provider
orders for life-sustaining treatment form" means a form signed by a
patient[,] or, if incapacitated, by the patient's legally
authorized representative and the patient's provider, that records the
patient's wishes and that directs a health care provider regarding the
provision of resuscitative and life-sustaining measures. A provider orders for life-sustaining
treatment form is not an advance [health-care] health care
directive."
SECTION 10. 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] health care directives, as provided for in [chapter
327E, and durable powers of attorney in relation to medical treatment.] chapter
."
SECTION 11. 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 12. 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 receiving care [may]
shall 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 defined in section -2."
SECTION 13. Section
560:5-316, Hawaii Revised Statutes, is amended by amending subsections (c) and
(d) to read as follows:
"(c) A guardian,
without authorization of the court, shall not:
(1) Revoke any health care
[directions] 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] health
care institution except in accordance with the ward's advance health
care directive or the State's procedure for involuntary civil
commitment."
SECTION 14. Section
671-3, Hawaii Revised Statutes, is amended by amending subsection (e) to read
as follows:
"(e) For the
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 15. Chapter 327E,
Hawaii Revised Statutes, is repealed.
SECTION 16. Chapter 327G, Hawaii Revised Statutes, is
repealed.
SECTION 17. 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 18. Statutory
material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 19. This Act shall take effect upon its approval.
Report Title:
Uniform Health Care Decisions Act (Modified); Advance Health Care Directives; Advance Mental Health Care Directives
Description:
Adopts the Uniform Health Care Decisions Act (2023), as modified, to replace existing chapters related to advance health care directives and advance mental health care directives. (CD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.