SENATE BILL NO. 1068

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S1068aa..............................................by JUDICIARY AND RULES
MEDICAL CONSENT AND NATURAL DEATH ACT - Repeals and adds to existing law to
set forth the Medical Consent and Natural Death Act; to set forth purposes;
to provide for application; to state who may consent to their own care; to
state who may give consent to care for others; to provide for blood
testing; to set forth provisions applicable to sufficiency of consent and
the form of consent; to set forth responsibility for consent and
documentation; to provide a statement of legislative policy; to define
terms; to provide a living will and durable power of attorney for health
care; to provide for revocation; to provide for execution; to provide
immunity; and to set forth general provisions.
                                                                        
01/31    Senate intro - 1st rdg - to printing
02/01    Rpt prt - to Jud
02/21    Rpt out - to 14th Ord
02/23    Rpt out amen - to engros
02/24    Rpt engros - 1st rdg - to 2nd rdg as amen
02/25    2nd rdg - to 3rd rdg as amen
03/01    3rd rdg as amen - PASSED - 31-0-4
      AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
      Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
      Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst,
      Little, Lodge, Malepeai, Marley, McGee, McKenzie, Noble, Schroeder,
      Stegner, Werk, Williams
      NAYS -- None
      Absent and excused -- Pearce, Richardson, Stennett, Sweet
    Floor Sponsor - Davis
    Title apvd - to House
03/02    House intro - 1st rdg - to Jud
03/10    Rpt out - rec d/p - to 2nd rdg
03/11    2nd rdg - to 3rd rdg
03/15    3rd rdg - PASSED - 69-0-1
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon,
      Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Garrett, Hart(Jacobson), Harwood,
      Henbest, Henderson, Jaquet, Jones, Kemp, Lake, LeFavour, Loertscher,
      Martinez, Mathews, McGeachin, McKague, Miller, Mitchell, Moyle,
      Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo,
      Roberts, Rusche, Rydalch, Sali, Sayler, Schaefer, Shepherd(2),
      Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie,
      Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker
      NAYS -- None
      Absent and excused -- Crow
    Floor Sponsors - Smith(24) & LaFavour
    Title apvd - to Senate
03/16    To enrol
03/17    Rpt enrol - Pres signed
03/18    Sp signed
03/21    To Governor
03/23    Governor signed
         Session Law Chapter 120
         Effective: 07/01/05

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1068
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE NATURAL DEATH AND MEDICAL CONSENT ACT; REPEALING  CHAPTERS  43
  3        AND  45, TITLE 39, IDAHO CODE; AMENDING TITLE 39, IDAHO CODE, BY THE ADDI-
  4        TION OF A NEW CHAPTER 45, TITLE 39, IDAHO CODE, TO SET FORTH PURPOSES,  TO
  5        PROVIDE  FOR  CHAPTER  APPLICATION,  TO PROVIDE A STATEMENT OF LEGISLATIVE
  6        POLICY, TO DEFINE TERMS, TO PROVIDE FOR A LIVING WILL AND DURABLE POWER OF
  7        ATTORNEY FOR HEALTH CARE, TO PROVIDE FOR REVOCATION, TO PROVIDE FOR EXECU-
  8        TION, TO PROVIDE IMMUNITY, TO SET FORTH GENERAL PROVISIONS, TO  STATE  WHO
  9        MAY  CONSENT  TO THEIR OWN CARE, TO STATE WHO MAY GIVE CONSENT TO CARE FOR
 10        OTHERS, TO PROVIDE FOR BLOOD TESTING, TO SET FORTH  PROVISIONS  APPLICABLE
 11        TO  THE  FORM  OF  CONSENT AND TO SET FORTH RESPONSIBILITY FOR CONSENT AND
 12        DOCUMENTATION; AMENDING SECTION 5-332, IDAHO CODE, TO  PROVIDE  A  CORRECT
 13        CODE REFERENCE; AMENDING SECTION 31-3910, IDAHO CODE, TO PROVIDE A CORRECT
 14        CODE REFERENCE; AMENDING SECTION 39-3902, IDAHO CODE, TO PROVIDE A CORRECT
 15        CODE REFERENCE; AMENDING SECTION 39-4509, IDAHO CODE, TO PROVIDE A CORRECT
 16        CODE REFERENCE; AMENDING SECTION 54-1142, IDAHO CODE, TO PROVIDE A CORRECT
 17        CODE REFERENCE; AMENDING SECTION 56-1015, IDAHO CODE, TO PROVIDE A CORRECT
 18        CODE REFERENCE; AND AMENDING SECTION 66-405, IDAHO CODE, TO PROVIDE A COR-
 19        RECT CODE REFERENCE.
                                                                        
 20    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 21        SECTION  1.  That  Chapters  43  and 45, Title 39, Idaho Code, be, and the
 22    same are hereby repealed.
                                                                        
 23        SECTION 2.  That Title 39, Idaho Code, be, and the same is hereby  amended
 24    by  the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
 25    ter 45, Title 39, Idaho Code, and to read as follows:
                                                                        
 26                                      CHAPTER 45
 27                      THE NATURAL DEATH AND MEDICAL CONSENT ACT
                                                                        
 28        39-4501.  PURPOSES -- APPLICATION. (1)  The primary purposes of this chap-
 29    ter are:
 30        (a)  To provide and codify Idaho law concerning consent for the furnishing
 31        of hospital, medical, dental or surgical care,  treatment  or  procedures,
 32        and  concerning what constitutes an informed consent for such care, treat-
 33        ment or procedures; and
 34        (b)  To provide certainty and clarity in the law of medical consent in the
 35        furtherance of high standards of health care and its ready availability in
 36        proper cases.
 37        (2)  Nothing in this chapter shall be deemed to amend or repeal the provi-
 38    sions of chapter 3, title 66, Idaho Code, as those provisions pertain to medi-
 39    cal attendance upon or hospitalization of the mentally ill, nor the provisions
 40    of chapter 6, title 18, Idaho Code, pertaining to provision  of  examinations,
 41    prescriptions,  devices  and  informational  materials regarding prevention of
                                                                        
                                           2
                                                                        
  1    pregnancy or pertaining to therapeutic abortions and consent  to  the  perfor-
  2    mance thereof.
  3        (3)  Nothing  in  this chapter shall be construed to permit or require the
  4    provision of health care for a  patient  in  contravention  of  the  patient's
  5    stated  or implied objection thereto upon religious grounds nor shall anything
  6    in this chapter be construed to require the granting of permission for  or  on
  7    behalf of any patient who is not able to act for himself by his parent, spouse
  8    or  guardian  in  violation  of  the  religious  beliefs of the patient or the
  9    patient's parent or spouse.
                                                                        
 10        39-4502.  STATEMENT OF POLICY. (1) The legislature finds that  adult  per-
 11    sons  have the fundamental right to control the decisions relating to the ren-
 12    dering of their medical care, including the decision to have  life  sustaining
 13    procedures  withheld  or  withdrawn. The legislature further finds that modern
 14    medical technology has made possible the artificial prolongation of human life
 15    beyond natural limits. The legislature further finds that patients  are  some-
 16    times  unable  to express their desire to withhold or withdraw such artificial
 17    life prolongation procedures which provide nothing medically necessary or ben-
 18    eficial to the patient because of the patient's inability to communicate  with
 19    the physician.
 20        (2)  In recognition of the dignity and privacy which patients have a right
 21    to  expect,  the legislature hereby declares that the laws of this state shall
 22    recognize the right of a competent person  to  have  his  wishes  for  medical
 23    treatment and for the withdrawal of artificial life sustaining procedures car-
 24    ried  out  even  though  that person is no longer able to communicate with the
 25    physician.
 26        (3)  It is the intent of the legislature to establish an  effective  means
 27    for  such communication. It is not the intent of the legislature that the pro-
 28    cedures described in this chapter are the only effective means of such  commu-
 29    nication,  and  nothing  in  this  chapter shall impair or supersede any legal
 30    right or legal responsibility which a person may have to effect the  withhold-
 31    ing  or  withdrawal  of  life  sustaining procedures in any lawful manner. Any
 32    authentic expression of a person's wishes with respect to health  care  should
 33    be honored.
                                                                        
 34        39-4503.  DEFINITIONS. As used in this chapter:
 35        (1)  "Artificial life-sustaining procedure" means any medical procedure or
 36    intervention  that  utilizes  mechanical  means to sustain or supplant a vital
 37    function which when applied to a qualified patient, would serve only to  arti-
 38    ficially prolong life. "Artificial life-sustaining procedure" does not include
 39    the  administration  of medication or the performance of any medical procedure
 40    deemed necessary to alleviate pain.
 41        (2)  "Artificial nutrition and hydration" means supplying food  and  water
 42    through  a conduit, such as a tube or intravenous line, where the recipient is
 43    not required to chew or swallow voluntarily, but  does  not  include  assisted
 44    feeding, such as spoon feeding or bottle feeding.
 45        (3)  "Attending physician" means the physician licensed by the state board
 46    of  medicine  who is selected by, or assigned to, the patient and who has pri-
 47    mary responsibility for the treatment and care of the patient.
 48        (4)  "Competent person" means any emancipated minor or any person eighteen
 49    (18) or more years of age who is of sound mind.
 50        (5)  "Consent to care" includes refusal to consent to  care  and/or  with-
 51    drawal of care.
                                                                        
 52        39-4504.  LIVING  WILL  AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. Any
                                                                        
                                           3
                                                                        
  1    competent person may execute a document known as a "Living  Will  and  Durable
  2    Power  of  Attorney  for Health Care." Such document shall be in substantially
  3    the following form, or in another form that contains the elements set forth in
  4    this chapter. A "Living Will and Durable Power of Attorney  for  Health  Care"
  5    executed prior to the effective date of this act, but which was in the "Living
  6    Will"  and/or  "Durable  Power  of  Attorney for Health Care" form pursuant to
  7    prior Idaho law at the time of execution, or in another  form  that  contained
  8    the  elements  set  forth  in  this chapter at the time of execution, shall be
  9    deemed to be in compliance with this chapter. A "Living Will and Durable Power
 10    of Attorney for Health Care" or similar document(s) executed in another  state
 11    which  substantially  complies with this chapter shall be deemed to be in com-
 12    pliance with this chapter. In this chapter, a "Living Will and  Durable  Power
 13    of Attorney for Health Care" may be referred to as a "directive." Any portions
 14    of  the  "Living Will and Durable Power of Attorney for Health Care" which are
 15    left blank by the person executing the document shall be deemed to  be  inten-
 16    tional and shall not invalidate the document.
                                                                        
 17              LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 18    Date of Directive:....................
                                                                        
 19    Name of person executing Directive:...........................................
 20    Address of person executing Directive:........................................
                                                                        
 21                                    A LIVING WILL
 22                   A Directive to Withhold or to Provide Treatment
                                                                        
 23    1.  Being of sound mind, I willfully and voluntarily make known my desire that
 24    my  life shall not be prolonged artificially under the circumstances set forth
 25    below. This Directive shall only be effective if I am unable to communicate my
 26    instructions and:
 27        a.  I have an incurable injury, disease, illness or condition and two  (2)
 28        medical doctors who have examined me have certified:
 29             1.  That such injury, disease, illness or condition is terminal; and
 30             2.  That  the  application  of  artificial life-sustaining procedures
 31             would serve only to prolong artificially my life; and
 32             3.  That my death  is  imminent,  whether  or  not  artificial  life-
 33             sustaining procedures are utilized; or
 34        b.  I have been diagnosed as being in a persistent vegetative state.
                                                                        
 35    In  such  event, I direct that the following marked expression of my intent be
 36    followed, and that I receive  any  medical  treatment  or  care  that  may  be
 37    required to keep me free of pain or distress.
                                                                        
 38    Check one box and initial the line after such box:
                                                                        
 39        ........  I  direct that all medical treatment, care and procedures neces-
 40    sary to restore my health, sustain my life, and to abolish or  alleviate  pain
 41    or  distress be provided to me. Nutrition and hydration, whether artificial or
 42    nonartificial, shall not be withheld or withdrawn from me if  I  would  likely
 43    die  primarily  from  malnutrition  or dehydration rather than from my injury,
 44    disease, illness or condition.
                                                                        
 45    OR
                                                                        
                                           4
                                                                        
  1        ........  I direct  that  all  medical  treatment,  care  and  procedures,
  2    including  artificial  life-sustaining  procedures,  be withheld or withdrawn,
  3    except that nutrition and hydration, whether artificial or nonartificial shall
  4    not be withheld or withdrawn from me if, as a result, I would likely die  pri-
  5    marily  from  malnutrition or dehydration rather than from my injury, disease,
  6    illness or condition, as follows: (If none of the following boxes are  checked
  7    and initialed, then both nutrition and hydration, of any nature, whether arti-
  8    ficial or nonartificial, shall be administered.)
                                                                        
  9    Check one box and initial the line after such box:
                                                                        
 10        A.        ........  Only  hydration  of  any nature, whether artificial or
 11                       nonartificial, shall be administered;
 12        B.        ........  Only nutrition, of any nature, whether  artificial  or
 13                       nonartificial, shall be administered;
 14        C.        ........  Both  nutrition  and hydration, of any nature, whether
 15                       artificial or nonartificial shall be administered.
                                                                        
 16    OR
                                                                        
 17        ........  I direct that all medical  treatment,  care  and  procedures  be
 18    withheld  or  withdrawn, including withdrawal of the administration of artifi-
 19    cial nutrition and hydration.
                                                                        
 20    2.  This Directive shall be the final expression of my legal right  to  refuse
 21    or  accept  medical  and  surgical treatment, and I accept the consequences of
 22    such refusal or acceptance.
                                                                        
 23    3.  If I have been diagnosed as pregnant, this Directive shall have  no  force
 24    during the course of my pregnancy.
                                                                        
 25    4.  I  understand the full importance of this Directive and am mentally compe-
 26    tent to make this Directive. No participant in the making of this Directive or
 27    in its being carried into effect shall be held responsible in any way for com-
 28    plying with my directions.
                                                                        
 29                     A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 30    1.  DESIGNATION OF HEALTH CARE AGENT. None of the following may be  designated
 31    as  your  agent:  (1)  your  treating  health care provider; (2) a nonrelative
 32    employee of your treating health care provider; (3) an operator of a community
 33    care facility; or (4) a nonrelative employee of an  operator  of  a  community
 34    care facility. If the agent or an alternate agent designated in this Directive
 35    is my spouse, and our marriage is thereafter dissolved, such designation shall
 36    be thereupon revoked.
                                                                        
 37    I  do  hereby designate and appoint the following individual as my attorney in
 38    fact (agent) to make health care decisions for me as authorized in this Direc-
 39    tive. (Insert name, address and telephone number of  one  individual  only  as
 40    your agent to make health care decisions for you.)
                                                                        
 41    Name of Health Care Agent:....................................................
 42    Address of Health Care Agent:.................................................
 43    Telephone Number of Health Care Agent:........................................
                                                                        
                                           5
                                                                        
  1    For  the  purposes  of  this  Directive, "health care decision" means consent,
  2    refusal of consent, or withdrawal of consent to any care,  treatment,  service
  3    or  procedure  to  maintain, diagnose or treat an individual's physical condi-
  4    tion.
                                                                        
  5    2.  CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion  of
  6    this  Directive,  I  create  a durable power of attorney for health care. This
  7    power of attorney shall not be affected  by  my  subsequent  incapacity.  This
  8    power shall be effective only when I am unable to communicate rationally.
                                                                        
  9    3.  GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
 10    Directive,  including  as set forth in paragraph 2 immediately above, I hereby
 11    grant to my agent full power and authority to make health care  decisions  for
 12    me to the same extent that I could make such decisions for myself if I had the
 13    capacity  to  do  so. In exercising this authority, my agent shall make health
 14    care decisions that are consistent with my desires as stated in this Directive
 15    or otherwise made known to my agent including, but not limited to, my  desires
 16    concerning  obtaining  or refusing or withdrawing life-prolonging care, treat-
 17    ment, services and procedures, including such desires set forth  in  a  living
 18    will  or  similar  document  executed by me, if any. (If you want to limit the
 19    authority of your agent to make health care decisions for you, you  can  state
 20    the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and
 21    Limitations") below. You can indicate your desires by including a statement of
 22    your desires in the same paragraph.)
                                                                        
 23    4.  STATEMENT  OF  DESIRES,  SPECIAL  PROVISIONS, AND LIMITATIONS. (Your agent
 24    must make health care decisions that are consistent with your  known  desires.
 25    You  can,  but  are  not required to, state your desires in the space provided
 26    below. You should consider whether you want to include  a  statement  of  your
 27    desires  concerning  life-prolonging care, treatment, services and procedures.
 28    You can also include a statement of  your  desires  concerning  other  matters
 29    relating to your health care, including a list of one or more persons whom you
 30    designate  to  be  able  to receive medical information about you and/or to be
 31    allowed to visit you in a medical institution. You can also make your  desires
 32    known  to  your  agent  by  discussing your desires with your agent or by some
 33    other means. If there are any types of treatment that you do not  want  to  be
 34    used,  you  should  state them in the space below. If you want to limit in any
 35    other way the authority given your agent by this Directive, you  should  state
 36    the limits in the space below. If you do not state any limits, your agent will
 37    have  broad powers to make health care decisions for you, except to the extent
 38    that there are limits provided by law.) In exercising the authority under this
 39    durable power of attorney for health care, my  agent  shall  act  consistently
 40    with  my  desires as stated below and is subject to the special provisions and
 41    limitations stated in a living will or similar document  executed  by  me,  if
 42    any. Additional statement of desires, special provisions, and limitations:....
 43    ..............................................................................
 44    (You  may  attach additional pages or documents if you need more space to com-
 45    plete your statement.)
                                                                        
 46    5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR  MENTAL
 47    HEALTH.
                                                                        
 48    A.  General  Grant  of Power and Authority. Subject to any limitations in this
 49    Directive, my agent has the power and authority to do all  of  the  following:
 50    (1)  Request, review and receive any information, verbal or written, regarding
                                                                        
                                           6
                                                                        
  1    my physical or mental health including, but not limited to, medical and hospi-
  2    tal records; (2) Execute on my behalf any releases or other documents that may
  3    be required in order to obtain this information; (3) Consent to the disclosure
  4    of this information; and (4) Consent to the donation of any of my  organs  for
  5    medical purposes. (If you want to limit the authority of your agent to receive
  6    and  disclose  information relating to your health, you must state the limita-
  7    tions in paragraph 4 ("Statement of Desires, Special Provisions,  and  Limita-
  8    tions") above.)
                                                                        
  9    B.  HIPAA  Release  Authority.  My  agent  shall be treated as I would be with
 10    respect to my rights regarding the use and disclosure of my individually iden-
 11    tifiable health information or other medical records. This  release  authority
 12    applies  to  any  information governed by the Health Insurance Portability and
 13    Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and  45  CFR  160  through
 14    164.  I  authorize  any  physician,  health care professional, dentist, health
 15    plan, hospital, clinic, laboratory, pharmacy, or  other  covered  health  care
 16    provider,  any  insurance company, and the Medical Information Bureau, Inc. or
 17    other health care clearinghouse that has provided treatment or services to me,
 18    or that has paid for or is seeking payment from me for such services, to give,
 19    disclose and release to my agent, without restriction, all of my  individually
 20    identifiable  health information and medical records regarding any past, pres-
 21    ent or future medical or mental health condition,  including  all  information
 22    relating  to  the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
 23    illness, and drug or alcohol abuse. The authority given my agent shall  super-
 24    sede any other agreement that I may have made with my health care providers to
 25    restrict access to or disclosure of my individually identifiable health infor-
 26    mation.  The  authority given my agent has no expiration date and shall expire
 27    only in the event that I revoke the authority in writing and deliver it to  my
 28    health care provider.
                                                                        
 29    6.  SIGNING  DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the
 30    health care decisions that my agent is authorized by this Directive  to  make,
 31    my  agent  has the power and authority to execute on my behalf all of the fol-
 32    lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
 33    ment" and/or a "Leaving Hospital Against Medical Advice"; and (b)  Any  neces-
 34    sary waiver or release from liability required by a hospital or physician.
                                                                        
 35    7.  DESIGNATION  OF  ALTERNATE  AGENTS. (You are not required to designate any
 36    alternate agents but you may do so. Any alternate agent you designate will  be
 37    able  to  make  the  same health care decisions as the agent you designated in
 38    paragraph 1 above, in the event that agent is unable or ineligible to  act  as
 39    your  agent.  If  an  alternate  agent you designate is your spouse, he or she
 40    becomes ineligible to act as your agent if your marriage  is  thereafter  dis-
 41    solved.)  If the person designated as my agent in paragraph 1 is not available
 42    or becomes ineligible to act as my agent to make a health care decision for me
 43    or loses the mental capacity to make health care decisions for  me,  or  if  I
 44    revoke  that  person's  appointment  or  authority  to act as my agent to make
 45    health care decisions for me, then I designate and appoint the following  per-
 46    sons  to  serve as my agent to make health care decisions for me as authorized
 47    in this Directive, such persons to serve in the order listed below:
                                                                        
 48    A.  First Alternate Agent:
 49    Name..........................................................................
 50    Address.......................................................................
 51    Telephone Number..............................................................
                                                                        
                                           7
                                                                        
  1    B.  Second Alternate Agent:
  2    Name..........................................................................
  3    Address.......................................................................
  4    Telephone Number..............................................................
                                                                        
  5    C.  Third Alternate Agent:
  6    Name..........................................................................
  7    Address.......................................................................
  8    Telephone Number..............................................................
                                                                        
  9    8.  PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power  of  attorney
 10    for health care.
                                                                        
 11    DATE  AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and
 12    Durable Power of Attorney for Health Care.)
                                                                        
 13    I sign my name to this Statutory Form Living Will and Durable Power of  Attor-
 14    ney  for  Health  Care  on the date set forth at the beginning of this Form at
 15    ............... (City, State)....................
                                                                        
 16    ..............................
 17    Signature
                                                                        
 18        39-4505.  REVOCATION. (1)  A "Living Will and Durable  Power  of  Attorney
 19    for  Health  Care"  may  be  revoked at any time by the maker thereof, without
 20    regard to his mental state or competence, by any of the following methods:
 21        (a)  By being canceled, defaced, obliterated or burned, torn, or otherwise
 22        destroyed by the maker thereof, or by some person in his presence  and  by
 23        his direction;
 24        (b)  By  a  written, signed revocation of the maker thereof expressing his
 25        intent to revoke; or
 26        (c)  By an oral expression by the maker thereof expressing his  intent  to
 27        revoke.
 28        (2)  There shall be no criminal or civil liability on the part of any per-
 29    son  for  the  failure  to act upon a revocation of a "Living Will and Durable
 30    Power of Attorney for Health Care" made pursuant to this section  unless  that
 31    person has actual knowledge of the revocation.
                                                                        
 32        39-4506.  EXECUTION  OF  LIVING  WILL  AND  DURABLE  POWER OF ATTORNEY FOR
 33    HEALTH CARE. A "Living Will and Durable Power of  Attorney  for  Health  Care"
 34    shall  be effective from the date of execution unless otherwise revoked. Noth-
 35    ing in this chapter shall be construed to  prevent  a  competent  person  from
 36    reexecuting  a  "Living Will and Durable Power of Attorney for Health Care" at
 37    any time.
                                                                        
 38        39-4507.  IMMUNITY. (1) No medical personnel or health care facility shall
 39    be civilly or criminally liable for acts or omissions carried out or performed
 40    pursuant to the directives in a facially valid living will or by the holder of
 41    a facially valid durable power of attorney or directive for health care if the
 42    medical personnel or health care facility acts in good faith.
 43        (2)  Any physician or other health care provider who for ethical  or  pro-
 44    fessional  reasons  is incapable or unwilling to conform to the desires of the
 45    patient as expressed  by the procedures set forth in this chapter may withdraw
 46    without incurring any civil or criminal liability provided  the  physician  or
 47    other  health care provider makes a good faith effort to assist the patient in
                                                                        
                                           8
                                                                        
  1    obtaining the services of another physician  or  other  health  care  provider
  2    before withdrawal.
  3        (3)  No  person  who  exercises the responsibilities of a durable power of
  4    attorney for health care in good faith shall be subject to civil  or  criminal
  5    liability as a result.
                                                                        
  6        39-4508.  GENERAL PROVISIONS. (1)  This chapter shall have no effect or be
  7    in  any  manner construed to apply to persons not executing a "Living Will and
  8    Durable Power of Attorney for Health Care" pursuant to this chapter nor  shall
  9    it in any manner affect the rights of any such persons or of others acting for
 10    or  on  behalf  of  such persons to give or refuse to give consent or withhold
 11    consent for any medical care, neither  shall  this  chapter  be  construed  to
 12    affect chapter 3, title 66, Idaho Code, in any manner.
 13        (2)  The making of a "Living Will and Durable Power of Attorney for Health
 14    Care"  pursuant  to  this chapter shall not restrict, inhibit or impair in any
 15    manner the sale, procurement or issuance of any policy of life insurance,  nor
 16    shall  it  be  deemed to modify the terms of an existing policy of life insur-
 17    ance. No policy of life insurance shall be legally impaired or invalidated  in
 18    any manner by the withholding or withdrawal of artificial life-sustaining pro-
 19    cedures from an insured patient, notwithstanding any term of the policy to the
 20    contrary.
 21        (3)  No  physician,  health  facility or other health care provider and no
 22    health care service plan, insurer issuing disability  insurance,  self-insured
 23    employee  plan,  welfare benefit plan or nonprofit hospital service plan shall
 24    require any person to execute a "Living Will and Durable Power of Attorney for
 25    Health Care" as a condition for being insured for, or receiving,  health  care
 26    services.
                                                                        
 27        39-4509.  PERSONS  WHO  MAY CONSENT TO THEIR OWN CARE. Any adult person of
 28    ordinary intelligence and awareness sufficient for him  or  her  generally  to
 29    comprehend  the  need  for, the nature of and the significant risks ordinarily
 30    inherent in, any contemplated hospital,  medical,  dental  or  surgical  care,
 31    treatment  or  procedure  is  competent  to  consent thereto on his or her own
 32    behalf. Any physician, dentist, hospital or other duly authorized  person  may
 33    provide  such  health care and services in reliance upon such a consent if the
 34    physician or dentist to whom it is given or by whom it  is  secured  has  made
 35    such  disclosures and given such advice respecting pertinent facts and consid-
 36    erations as would ordinarily be made and given under the same or similar  cir-
 37    cumstances  by  a like physician or dentist of good standing practicing in the
 38    same community. As used in this section, the  term  "in  the  same  community"
 39    refers  to  that  geographical  area ordinarily served by the licensed general
 40    hospital at or nearest to which such consent is given.
                                                                        
 41        39-4510.  PERSONS WHO MAY GIVE CONSENT TO CARE FOR OTHERS.  (1)  The  fol-
 42    lowing  persons may give consent to care for another person if such other per-
 43    son is not then capable of giving such consent, including by reason of  minor-
 44    ity,  in the order of priority set forth below, if the physician or dentist to
 45    whom it is given or by whom it is secured has made such disclosures and  given
 46    such  advice respecting pertinent facts and considerations as would ordinarily
 47    be made and given under the same or similar circumstances by a like  physician
 48    or  dentist of good standing practicing in the same community. As used in this
 49    section, the term "in the same community" refers  to  that  geographical  area
 50    ordinarily served by the licensed general hospital at or nearest to which such
 51    consent is given:
 52        (a)  The legal guardian of such person;
                                                                        
                                           9
                                                                        
  1        (b)  The  person named in a "Living Will and Durable Power of Attorney for
  2        Health Care" pursuant to section 39-4504, Idaho Code, or a  similar  docu-
  3        ment authorized by this chapter;
  4        (c)  If married, the spouse of such person;
  5        (d)  The parent(s) of such person;
  6        (e)  Any  relative  representing  himself or herself to be an appropriate,
  7        responsible person to act under the circumstances;
  8        (f)  Any other competent individual representing himself or herself to  be
  9        responsible for the health care of such person; or
 10        (g)  If the subject person presents a medical emergency or there is a sub-
 11        stantial  likelihood  of  his or her life or health being seriously endan-
 12        gered by withholding or delay in the rendering of such hospital,  medical,
 13        dental  or  surgical care to such patient, the attending physician or den-
 14        tist may, in his or her discretion, authorize and/or  provide  such  care,
 15        treatment  or  procedure  as he or she deems appropriate, and all persons,
 16        agencies and institutions thereafter furnishing the same,  including  such
 17        physician  or  dentist, may proceed as if informed, valid consent therefor
 18        had been otherwise duly given.
 19        (2)  No person who, in good faith, gives consent or authorization for  the
 20    provision  of  hospital, medical, dental or surgical care, treatment or proce-
 21    dures to another as provided by this chapter shall be subject to civil liabil-
 22    ity therefor.
                                                                        
 23        39-4511.  BLOOD TESTING. (1)  A physician may consent to ordering tests of
 24    a patient's or a deceased person's blood or other body fluids for the presence
 25    of blood-transmitted or body fluid-transmitted viruses or diseases without the
 26    prior consent of the patient if:
 27        (a)  There has been or is likely to  be  a  significant  exposure  to  the
 28        patient's  or a deceased person's blood or body fluids by a person provid-
 29        ing emergency or medical services to such patient which may result in  the
 30        transmittal of a virus or disease; and
 31        (b)  The  patient  is  unconscious or incapable of giving informed consent
 32        and the physician is unable to obtain consent pursuant to section 39-4509,
 33        Idaho Code.
 34        (2)  The department of health and welfare shall promulgate rules identify-
 35    ing  the blood-transmitted or body fluid-transmitted viruses or  diseases  for
 36    which  blood  tests  or body fluid tests can be ordered under this section and
 37    defining the term "significant exposure" as provided in this section.
 38        (3)  Results of tests conducted under this section which confirm the pres-
 39    ence of a blood-transmitted or body fluid-transmitted virus or  disease  shall
 40    be  reported  to  the  director of the department of health and welfare in the
 41    name of the patient or deceased person. The department records containing such
 42    test results shall be used only by public health officials  who  must  conduct
 43    investigations.  The  exposed  person shall only be informed of the results of
 44    the test and shall not be informed of the name of the patient or deceased per-
 45    son. Protocols shall be established by hospitals to  maintain  confidentiality
 46    while  disseminating  the necessary test result information to persons who may
 47    have a significant exposure to blood or other  body  fluids  and  to  maintain
 48    records of such tests to preserve the confidentiality of the test results.
 49        (4)  Any  person  who  willfully or maliciously discloses the results of a
 50    test conducted under this section, except pursuant to a written  authorization
 51    by  the person whose blood was tested or by such person's authorized represen-
 52    tative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
                                                                        
 53        39-4512.  FORM OF CONSENT. It is not essential to the validity of any con-
                                                                        
                                           10
                                                                        
  1    sent for the furnishing of hospital, medical, surgical or dental care,  treat-
  2    ment or procedures that the consent be in writing or any other form of expres-
  3    sion;  provided  however,  when the giving of such consent is recited or docu-
  4    mented in writing and expressly authorizes the care, treatment  or  procedures
  5    to  be furnished, and when such writing or form has been executed or initialed
  6    by a person competent to give such consent for himself or another, such  writ-
  7    ten  consent,  in  the  absence  of convincing proof that it was secured mali-
  8    ciously or by fraud, is presumed to be valid for the furnishing of such  care,
  9    treatment  or procedures, and the advice and disclosures of the attending phy-
 10    sician or dentist, as well as the level of informed awareness of the giver  of
 11    such consent, shall be presumed to be sufficient.
                                                                        
 12        39-4513.  RESPONSIBILITY  FOR CONSENT AND DOCUMENTATION. Obtaining consent
 13    for health care is the duty of  the  attending  physician  or  dentist  or  of
 14    another physician or dentist acting on his or her behalf or actually providing
 15    the  contemplated  care,  treatment or procedure; provided however, a licensed
 16    hospital and any medical or dental office lay or professional employee, acting
 17    with the approval of such an attending or other physician or dentist, may per-
 18    form the ministerial act of documenting such consent by securing  the  comple-
 19    tion  and  execution of a form or statement in which the giving of consent for
 20    such care is documented by or on behalf of the patient. In performing  such  a
 21    ministerial  act, the hospital or medical or dental office lay or professional
 22    employee shall not be deemed to have engaged in the practice  of  medicine  or
 23    dentistry.
                                                                        
 24        SECTION  3.  That  Section  5-332,  Idaho Code, be, and the same is hereby
 25    amended to read as follows:
                                                                        
 26        5-332.  CONSENT FOR EMERGENCY  MEDICAL  TREATMENT.  The  authorization  or
 27    refusal  of  consent  for  emergency medical treatment under sections 5-330 or
 28    5-331, Idaho Code, shall be governed by chapter 435, title 39, Idaho Code.
                                                                        
 29        SECTION 4.  That Section 31-3910, Idaho Code, be, and the same  is  hereby
 30    amended to read as follows:
                                                                        
 31        31-3910.  CONSENT  FOR  EMERGENCY  MEDICAL TREATMENT. The authorization or
 32    refusal of consent for emergency medical treatment under chapter 39, title 31,
 33    Idaho Code, shall be governed by chapter 435, title 39, Idaho Code.
                                                                        
 34        SECTION 5.  That Section 39-3902, Idaho Code, be, and the same  is  hereby
 35    amended to read as follows:
                                                                        
 36        39-3902.  DEFINITIONS.  For  purposes of this chapter, the following words
 37    and terms have the meaning hereinafter stated:
 38        (1)  "Emergency medical treatment" means  immediate  medical  intervention
 39    required,  according to the prevailing medical standards of judgment and prac-
 40    tice within the community, because of the medical condition of the person sub-
 41    ject to this chapter.
 42        (2)  "Evaluation committee" means an interdisciplinary team consisting  of
 43    at  least four (4) individuals qualified by education and training to evaluate
 44    an individual as required by the provisions of this chapter, and  an  advocate
 45    designated by the person subject to this chapter. Each committee must include:
 46    two (2) social workers, at least one (1) of whom must be a master's  level;  a
 47    clinical psychologist or a psychiatrist; and a physician.
 48        (3)  "Informed  assent"  means a process by which a person subject to this
                                                                        
                                           11
                                                                        
  1    chapter who lacks or is alleged to lack the capacity to consent to  steriliza-
  2    tion  is  given a fair opportunity to acknowledge the nature, risks and conse-
  3    quences of the procedures and, insofar  as he or she  is  able  to,  indicates
  4    willingness and choice to undergo sterilization.
  5        (4)  "Interested person" means an interested, responsible adult including,
  6    but  not  limited to, the legal guardian, spouse, parent, legal counsel, adult
  7    child, or next of kin of a person subject to this chapter, or if none of these
  8    are available, the department of health and welfare.
  9        (5)  "Medically necessary" means that, according to the prevailing medical
 10    standards of judgment and practice within the community, the procedure is rea-
 11    sonably calculated to prevent or treat conditions in  the  person  subject  to
 12    this chapter that endanger life, cause severe pain, or cause functionally sig-
 13    nificant  deformity  or  malfunction,  and  for  which there is not an equally
 14    effective alternative course of treatment available or suitable.
 15        (6)  "Person subject to this chapter" means all adults, except adults  who
 16    may  consent  to  their own treatment pursuant to chapter 435, title 39, Idaho
 17    Code. Adults who are alleged to lack this capacity are also persons subject to
 18    this chapter.
 19        (7)  "Physician" means a person duly licensed in the  state  of  Idaho  to
 20    practice  medicine  and  surgery  without  restriction pursuant to laws of the
 21    state of Idaho.
 22        (8)  "Records" includes, but is not limited to, all court files  of  judi-
 23    cial  proceedings  brought  under  this chapter, written clinical information,
 24    observations and reports, or fiscal documents relating to a person subject  to
 25    this  chapter who has undergone or is about to undergo sterilization and which
 26    are related to the sterilization.
 27        (9)  "Sterilization" means any medical or surgical operation or  procedure
 28    which  can  be expected to result in a patient's permanent inability to repro-
 29    duce.
                                                                        
 30        SECTION 6.  That Section 39-4509, Idaho Code, be, and the same  is  hereby
 31    amended to read as follows:
                                                                        
 32        39-4509.  GENERAL  PROVISIONS. (1) This chapter shall have no effect or be
 33    in any manner construed to apply to persons not executing a directive pursuant
 34    to this chapter nor shall it in any manner affect the rights of any such  per-
 35    sons or of others acting for or on behalf of such persons to give or refuse to
 36    give  consent  or  withhold  consent  for any medical care, neither shall this
 37    chapter be construed to affect chapter 435, title 39, nor chapter 3, title 66,
 38    Idaho Code, in any manner.
 39        (2)  The making  of  a  directive  pursuant  to  this  chapter  shall  not
 40    restrict,  inhibit  or impair in any manner the sale, procurement, or issuance
 41    of any policy of life insurance, nor shall it be deemed to modify the terms of
 42    existing policy of life insurance.  No  policy  of  life  insurance  shall  be
 43    legally impaired or invalidated in any manner by the withholding or withdrawal
 44    of  artificial  life-sustaining  procedures  from an insured patient, notwith-
 45    standing any term of the policy to the contrary.
 46        (3)  No physician, health facility or other health provider and no  health
 47    care   service   plan,  insurer  issuing  disability  insurance,  self-insured
 48    employee, welfare benefit plan, or  nonprofit  hospital  service  plan,  shall
 49    require  any  person  to  execute a directive as a condition for being insured
 50    for, or receiving, health care services.
                                                                        
 51        SECTION 7.  That Section 54-1142, Idaho Code, be, and the same  is  hereby
 52    amended to read as follows:
                                                                        
                                           12
                                                                        
  1        54-1142.  AUTHORITY  IN  ABSENCE  OF  PREARRANGED FUNERAL PLAN. (1) If the
  2    decedent has not made a prearranged funeral  plan  as  set  forth  in  section
  3    54-1139,  Idaho Code, the right to control the disposition of the remains of a
  4    deceased person vests in, and devolves upon the following in the order named:
  5        (a)  The person designated in a written document executed by the  decedent
  6        and  acknowledged in the same manner as required for instruments conveying
  7        real property, and subject to such limitations,  restrictions,  or  direc-
  8        tions, as may be set forth in such document;
  9        (b)  The  person designated as agent under a durable power of attorney for
 10        health care executed by the decedent, unless such durable power of  attor-
 11        ney  for  health  care  contains  express  and clear language denying such
 12        right;
 13        (c)  The person designated in a durable power of attorney executed by  the
 14        decedent,  if  such  power of attorney contains express and clear language
 15        granting such right to the agent named in such power of attorney;
 16        (d)  The competent surviving spouse of the decedent;
 17        (e)  A majority of the competent surviving adult children of the decedent,
 18        provided that less than one-half (1/2) of the  competent  surviving  adult
 19        children  shall be vested with the right to control the disposition of the
 20        remains of the decedent if they have used reasonable efforts to notify all
 21        other competent surviving adult children of their instructions to  dispose
 22        of  the  decedent's  remains  and are not aware of any opposition to those
 23        instructions on the part of more than one-half (1/2) of all competent sur-
 24        viving adult children;
 25        (f)  The competent surviving parents or parent of the  decedent,  provided
 26        that  if one (1) of the competent surviving parents is absent, the remain-
 27        ing competent surviving parent shall be vested with the right  to  control
 28        the  disposition  of  the remains of the decedent after reasonable efforts
 29        have been made and are unsuccessful in locating the absent competent  sur-
 30        viving parent;
 31        (g)  The person appointed by a court of competent jurisdiction as the per-
 32        sonal representative or administrator of the estate of the decedent;
 33        (h)  The  person nominated as the personal representative of the estate of
 34        the decedent in the will of the decedent;
 35        (i)  The competent adult person or persons entitled to  inherit  from  the
 36        decedent  under  the  intestate  succession  laws  of  the state of Idaho,
 37        respectively in the next degrees of kinship, provided  that  if  there  is
 38        more  than  one (1) competent surviving adult person of the same degree of
 39        kinship, the majority of those persons, and  provided  further  that  less
 40        than  the majority of competent surviving adult persons of the same degree
 41        of kinship shall be vested with the right to control  the  disposition  of
 42        the  remains of the decedent if those persons have used reasonable efforts
 43        to notify all other competent surviving adult persons of the  same  degree
 44        of  kinship of their instructions to dispose of the decedent's remains and
 45        are not aware of any opposition to those instructions on the part of  one-
 46        half  (1/2)  or  more of all competent surviving adult persons of the same
 47        degree of kinship.
 48        (2)  If any person to whom the right of control has vested pursuant to the
 49    foregoing has been charged with first or second  degree  murder  or  voluntary
 50    manslaughter  in  connection  with the decedent's death, and those charges are
 51    known to the funeral director or cemetery authority, the right of  control  is
 52    relinquished and passed on to the next qualifying person as listed above as if
 53    the  charged  person  did  not  exist;  provided  however, that if the charges
 54    against such person are dropped,  or  if  such  person  is  acquitted  of  the
 55    charges, the right of control is returned to the person.
                                                                        
                                           13
                                                                        
  1        (3)  For purposes of this section:
  2        (a)  "Adult"  means  an  individual  who  is eighteen (18) years of age or
  3        older;
  4        (b)  "Child" means a natural or adopted child of the decedent;
  5        (c)  "Competent" means the individual has not been declared incompetent by
  6        a court of law, or who has been declared competent by a court of law after
  7        a prior declaration of incompetence;
  8        (d)  "Durable power of attorney" means a power of  attorney  described  in
  9        section  15-5-501,  Idaho  Code, or any similar document properly executed
 10        under the laws of another jurisdiction; and
 11        (e)  "Durable power of  attorney  for  health  care"  means  the  document
 12        described in section 39-4505 chapter 45, title 39, Idaho Code, or any sim-
 13        ilar document properly executed under the laws of another jurisdiction;
 14        (f)  "Will"  means  any testamentary device which is valid under the Idaho
 15        probate code, including, but not limited to, sections  15-2-503,  15-2-504
 16        and  15-2-506, Idaho Code, whether or not originally executed in, or under
 17        the laws of, the state of Idaho.
 18        (4) (a)  A cemetery authority or licensed funeral director or  a  licensed
 19        hospital or its authorized personnel may permit or assist in, and a physi-
 20        cian may perform, an autopsy of any remains of a decedent in its custody:
 21             (i)   If  the  decedent, prior to his death, authorizes an autopsy in
 22             his will or in another written instrument, including, but not limited
 23             to, a durable power of attorney for health care; or
 24             (ii)  Upon  the  receipt  of  a  written  authorization  signed   by,
 25             telegrammed  from, or received by facsimile transmission from, a per-
 26             son representing himself to be the person who is entitled under  this
 27             section to control the disposition of the remains of the decedent, or
 28             to be a coroner or any other duly authorized public officer; or
 29             (iii) Upon  the  receipt  of  an oral authorization obtained by tele-
 30             phone, and recorded on tape or other recording device, from a  person
 31             representing himself to be the person who is entitled under this sec-
 32             tion to control the disposition of the remains of the decedent, or to
 33             be a coroner or any other duly authorized public officer.
 34        (b)  A  cemetery  authority  or  a licensed funeral director of a licensed
 35        hospital or its authorized personnel  is  not  liable  for  permitting  or
 36        assisting, and a physician is not liable for performing, an autopsy pursu-
 37        ant  to  the  authorization  provided  in paragraph (a) of this subsection
 38        unless he has actual notice that such representation is untrue at the time
 39        the autopsy is performed. If such authorization is contained  in  a  will,
 40        the  autopsy  may  be  performed regardless of the validity of the will in
 41        other respects and regardless of whether the will may not be offered  for,
 42        or admitted to, probate until a later date.
 43        (c)  This subsection shall not authorize the obtaining of an oral authori-
 44        zation  by  telephone, recorded on tape or other recording device, for the
 45        autopsy of a deceased person if it is made known to the physician  who  is
 46        to  perform  the  autopsy that the deceased person was, at the time of his
 47        death, a member of a religion or group which opposes autopsies.
                                                                        
 48        SECTION 8.  That Section 56-1015, Idaho Code, be, and the same  is  hereby
 49    amended to read as follows:
                                                                        
 50        56-1015.  FAILURE  TO  OBTAIN  CONSENT. No person certified under sections
 51    56-1011 through 56-1018B, Idaho Code, or physician  or  hospital  licensed  in
 52    this  state  shall be subject to civil liability, based solely upon failure to
 53    obtain consent in rendering emergency medical, surgical,  hospital  or  health
                                                                        
                                           14
                                                                        
  1    services  to  any individual regardless of age where that individual is unable
  2    to give this consent for any reason and there is no  other  person  reasonably
  3    available  who is legally authorized to consent to the providing of such care,
  4    provided, however, that such person, physician, or hospital has acted in  good
  5    faith  and  without  knowledge  of  facts  negating  consent. The provision or
  6    refusal of consent under sections 56-1011 through 56-1018B, Idaho Code,  shall
  7    be governed by chapter 435, title 39, Idaho Code.
                                                                        
  8        SECTION  9.  That  Section  66-405, Idaho Code, be, and the same is hereby
  9    amended to read as follows:
                                                                        
 10        66-405.  ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the
 11    respondent is not developmentally disabled but appears in need  of  protective
 12    services,  the  court  may  cause the proceeding to be expanded or altered for
 13    consideration under the uniform probate code.
 14        (2)  If it is determined that the respondent is able to  manage  financial
 15    resources  and  meet essential requirements for physical health or safety, the
 16    court shall dismiss the petition.
 17        (3)  If it is determined that the respondent is  developmentally  disabled
 18    and  is  unable  to  manage  some  financial  resources or meet some essential
 19    requirements for physical health or safety, the court may  appoint  a  partial
 20    guardian  and/or  partial  conservator  on  behalf of the respondent. An order
 21    establishing partial guardianship or partial conservatorship shall define  the
 22    powers and duties of the partial guardian or partial conservator so as to per-
 23    mit  the  respondent  to  meet  essential  requirements for physical health or
 24    safety and to manage financial  resources commensurate with his ability to  do
 25    so,  and shall specify all legal restrictions to which he is subject. A person
 26    for whom  a partial guardianship or partial conservatorship has been appointed
 27    under this chapter retains all legal and civil rights except those which  have
 28    by  court  order  been  limited or which have been specifically granted to the
 29    partial guardian or partial conservator by the court.
 30        (4)  If it is determined that the respondent is  developmentally  disabled
 31    and is unable to manage financial resources or meet essential requirements for
 32    physical  health  or safety even with the appointment of a partial guardian or
 33    partial conservator, the court may appoint a total guardian and/or total  con-
 34    servator.
 35        (5)  In  the  event  that  more  than one (1) person seeks to be appointed
 36    guardian and/or conservator, the court shall appoint  the  person  or  persons
 37    most  capable of serving on behalf of the respondent; the court shall not cus-
 38    tomarily or ordinarily appoint the department or  any  other  organization  or
 39    individual,  public  or private, that is or is likely to be providing services
 40    to the respondent.
 41        (6)  Subject to the limitations of the provisions  of  subsection  (7)  of
 42    this  section, guardians or conservators may have any of the duties and powers
 43    as provided in sections 15-5-312(a)(1) through  (4),  15-5-424  and  15-5-425,
 44    Idaho  Code,  and as specified in the order. Any order appointing a partial or
 45    total guardian or partial or total conservator under the  provisions  of  this
 46    section  must  require a report to the court at least annually. In addition to
 47    such other requirements imposed by law or order, the report shall include:
 48        (a)  A description of the respondent's current mental, physical and social
 49        condition;
 50        (b)  The respondent's present address and living arrangement;
 51        (c)  A description of any significant  changes  in  the  capacity  of  the
 52        respondent to meet essential requirements for physical health or safety or
 53        to manage financial resources;
                                                                        
                                           15
                                                                        
  1        (d)  A description of services being provided the respondent;
  2        (e)  A description of significant actions taken by the guardian or conser-
  3        vator during the reporting period;
  4        (f)  Any significant problems relating to the guardianship or conservator-
  5        ship;
  6        (g)  A  complete  financial statement of the financial resources under the
  7        control or supervision of the guardian or conservator; and
  8        (h)  A description of the need for continued guardianship or  conservator-
  9        ship services.
 10        (7)  No  guardian appointed under this chapter shall have the authority to
 11    refuse or withhold consent for medically necessary treatment when  the  effect
 12    of  withholding such treatment would seriously endanger the life or health and
 13    well-being of the person with  a  developmental  disability.  To  withhold  or
 14    attempt  to withhold such treatment shall constitute neglect of the person and
 15    be cause for removal of the guardian. No physician or caregiver shall withhold
 16    or withdraw such treatment for a respondent whose condition is not terminal or
 17    whose death is not imminent. If the physician or caregiver cannot obtain valid
 18    consent for medically necessary treatment from the guardian, he shall  provide
 19    the   medically  necessary  treatment  as  authorized  by  section  39-4303(c)
 20    39-4510(1)(g), Idaho Code.
 21        (8)  A guardian appointed under this chapter may consent to withholding or
 22    withdrawal of artificial life-sustaining procedures, only if the respondent:
 23        (a)  Has an incurable injury, disease, illness or condition, certified  by
 24        the  respondent's attending physician and at least one (1) other physician
 25        to be terminal such that the  application  of  artificial  life-sustaining
 26        procedures  would not result in the possibility of saving or significantly
 27        prolonging the life of the respondent, and would only serve to prolong the
 28        moment of the respondent's death for a period of hours, days or weeks, and
 29        where both physicians certify that death is imminent, whether or  not  the
 30        life-sustaining procedures are used; or
 31        (b)  Has  been  diagnosed  by  the respondent's attending physician and at
 32        least one (1) other physician as being in a  persistent  vegetative  state
 33        which is irreversible and from which the respondent will never regain con-
 34        sciousness.
 35        (9)  Any person, who has information that medically necessary treatment of
 36    a  respondent  has  been withheld or withdrawn, may report such information to
 37    adult protective services or to the Idaho protection and advocacy  system  for
 38    people with developmental disabilities, who shall have the authority to inves-
 39    tigate  the  report  and  in appropriate cases to seek a court order to ensure
 40    that medically necessary treatment is provided.
 41        If adult protective services or the protection and advocacy system  deter-
 42    mines  that  withholding  of medical treatment violates the provisions of this
 43    section, they may petition the court for an ex parte order to provide or  con-
 44    tinue  the medical treatment in question. If the court finds, based on affida-
 45    vits or other evidence, that there is probable cause to believe that the with-
 46    holding of medical treatment in a particular case violates the  provisions  of
 47    this  section,  and  that  the  life  or  health  of the patient is endangered
 48    thereby, the court shall issue an ex parte order to continue or to provide the
 49    treatment until such time as the court can  hear  evidence  from  the  parties
 50    involved.  Petitions for court orders under this section shall be expedited by
 51    the courts and heard as soon as possible. No bond shall be required of a peti-
 52    tioner under this section.
 53        (10) No  partial  or  total  guardian  or  partial  or  total  conservator
 54    appointed under the provisions of this section may without  specific  approval
 55    of the court in a proceeding separate from that in which such guardian or con-
                                                                        
                                           16
                                                                        
  1    servator was appointed:
  2        (a)  Consent  to  medical or surgical treatment the effect of which perma-
  3        nently prohibits the conception of children by the respondent  unless  the
  4        treatment  or  procedures  are necessary to protect the physical health of
  5        the respondent and would be prescribed for a person who is not developmen-
  6        tally disabled;
  7        (b)  Consent to experimental surgery, procedures or medications; or
  8        (c)  Delegate the powers granted by the order.

Amendment


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                                                     Moved by    Davis               
                                                                        
                                                     Seconded by Darrington          
                                                                        
                                                                        
                                       IN THE SENATE
                             SENATE AMENDMENT TO S.B. NO. 1068
                                                                        
  1                                AMENDMENT TO THE BILL
  2        On page 1 of the printed bill, delete lines 21 through 41 and delete pages
  3    2 through 16 and insert:
                                                                        
  4        "SECTION 1.  That Chapters 43 and 45, Title 39, Idaho Code,  be,  and  the
  5    same are hereby repealed.
                                                                        
  6        SECTION  2.  That Title 39, Idaho Code, be, and the same is hereby amended
  7    by the addition thereto of a NEW CHAPTER, to be known and designated as  Chap-
  8    ter 45, Title 39, Idaho Code, and to read as follows:
                                                                        
  9                                      CHAPTER 45
 10                      THE MEDICAL CONSENT AND NATURAL DEATH ACT
                                                                        
 11        39-4501.  PURPOSES -- APPLICATION. (1)  The primary purposes of this chap-
 12    ter are:
 13        (a)  To provide and codify Idaho law concerning consent for the furnishing
 14        of  hospital,  medical,  dental or surgical care, treatment or procedures,
 15        and concerning what constitutes an informed consent for such care,  treat-
 16        ment or procedures; and
 17        (b)  To provide certainty and clarity in the law of medical consent in the
 18        furtherance of high standards of health care and its ready availability in
 19        proper cases.
 20        (2)  Nothing in this chapter shall be deemed to amend or repeal the provi-
 21    sions of chapter 3, title 66, Idaho Code, as those provisions pertain to medi-
 22    cal attendance upon or hospitalization of the mentally ill, nor the provisions
 23    of  chapter  6,  title 18, Idaho Code, pertaining to the provision of examina-
 24    tions, prescriptions, devices and informational materials regarding prevention
 25    of pregnancy or pertaining to therapeutic abortions and consent to the perfor-
 26    mance thereof.
 27        (3)  Nothing in this chapter shall be construed to permit or  require  the
 28    provision  of  health  care  for  a  patient in contravention of the patient's
 29    stated or implied objection thereto upon religious grounds nor shall  anything
 30    in  this  chapter be construed to require the granting of permission for or on
 31    behalf of any patient who is not able to act for himself by his parent, spouse
 32    or guardian in violation of the  religious  beliefs  of  the  patient  or  the
 33    patient's parent or spouse.
                                                                        
 34        39-4502.  PERSONS  WHO  MAY CONSENT TO THEIR OWN CARE. Any person of ordi-
 35    nary intelligence and awareness sufficient for him or her generally to compre-
 36    hend the need for, the nature of and the significant risks ordinarily inherent
 37    in, any contemplated hospital, medical, dental or surgical care, treatment  or
 38    procedure is competent to consent thereto on his or her own behalf. Any physi-
 39    cian,  dentist,  hospital  or  other  duly  authorized person may provide such
                                                                        
                                          2
                                                                        
  1    health care and services in reliance upon such a  consent  if  the  consenting
  2    person  appears  to  the  physician or dentist securing the consent to possess
  3    such requisite intelligence and awareness at the time of giving the consent.
                                                                        
  4        39-4503.  PERSONS WHO MAY GIVE CONSENT TO CARE  FOR  OTHERS.  (1)  Consent
  5    for the furnishing of hospital, medical, dental or surgical care, treatment or
  6    procedures  to  any  person  who is not then capable of giving such consent as
  7    provided in this chapter or who is a minor or incompetent person, may be given
  8    or refused in the order of priority set forth hereafter unless the patient  is
  9    a  competent person who has refused to give such consent, and provided further
 10    that this subsection shall not be deemed to authorize any person  to  override
 11    the express refusal by a competent patient to give such consent himself:
 12        (a)  The legal guardian of such person;
 13        (b)  The  person named in a "Living Will and Durable Power of Attorney for
 14        Health Care" pursuant to section 39-4510, Idaho Code, or a  similar  docu-
 15        ment authorized by this chapter;
 16        (c)  If married, the spouse of such person;
 17        (d)  A parent of such person;
 18        (e)  Any  relative  representing  himself or herself to be an appropriate,
 19        responsible person to act under the circumstances;
 20        (f)  Any other competent individual representing himself or herself to  be
 21        responsible for the health care of such person; or
 22        (g)  If the subject person presents a medical emergency or there is a sub-
 23        stantial  likelihood  of  his or her life or health being seriously endan-
 24        gered by withholding or delay in the rendering of such hospital,  medical,
 25        dental  or  surgical care to such patient, the attending physician or den-
 26        tist may, in his or her discretion, authorize and/or  provide  such  care,
 27        treatment  or  procedure  as he or she deems appropriate, and all persons,
 28        agencies and institutions thereafter furnishing the same,  including  such
 29        physician  or  dentist, may proceed as if informed, valid consent therefor
 30        had been otherwise duly given.
 31        (2)  No person who, in good faith, gives consent or authorization for  the
 32    provision  of  hospital, medical, dental or surgical care, treatment or proce-
 33    dures to another as provided by this chapter shall be subject to civil liabil-
 34    ity therefor.
 35        (3)  No physician, dentist, hospital or other duly authorized  person  who
 36    in good faith obtains consent from a person pursuant to either section 39-4502
 37    or 39-4503(1), Idaho Code, shall be subject to civil liability therefor.
                                                                        
 38        39-4504.  BLOOD TESTING. (1)  A physician may consent to ordering tests of
 39    a patient's or a deceased person's blood or other body fluids for the presence
 40    of blood-transmitted or body fluid-transmitted viruses or diseases without the
 41    prior consent of the patient if:
 42        (a)  There  has  been  or  is  likely  to be a significant exposure to the
 43        patient's or a deceased person's blood or body fluids by a person  provid-
 44        ing  emergency or medical services to such patient which may result in the
 45        transmittal of a virus or disease; and
 46        (b)  The patient is unconscious or incapable of  giving  informed  consent
 47        and the physician is unable to obtain consent pursuant to section 39-4503,
 48        Idaho Code.
 49        (2)  The department of health and welfare shall promulgate rules identify-
 50    ing  the  blood-transmitted  or body fluid-transmitted viruses or diseases for
 51    which blood tests or body fluid tests can be ordered under  this  section  and
 52    defining the term "significant exposure" as provided in this section.
 53        (3)  Results of tests conducted under this section which confirm the pres-
                                                                        
                                          3
                                                                        
  1    ence  of  a blood-transmitted or body fluid-transmitted virus or disease shall
  2    be reported to the director of the department of health  and  welfare  in  the
  3    name of the patient or deceased person. The department records containing such
  4    test  results  shall  be used only by public health officials who must conduct
  5    investigations. The exposed person shall only be informed of  the  results  of
  6    the test and shall not be informed of the name of the patient or deceased per-
  7    son.  Protocols  shall be established by hospitals to maintain confidentiality
  8    while disseminating the  necessary test result information to persons who  may
  9    have  a  significant  exposure  to  blood or other body fluids and to maintain
 10    records of such tests to preserve the confidentiality of the test results.
 11        (4)  Any person who willfully or maliciously discloses the  results  of  a
 12    test  conducted under this section, except pursuant to a written authorization
 13    by the person whose blood was tested or by such person's authorized  represen-
 14    tative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
                                                                        
 15        39-4505.  SUFFICIENCY  OF CONSENT. Consent for the furnishing of hospital,
 16    medical, dental or surgical care, treatment or procedures shall  be  valid  in
 17    all  respects if the person giving the consent is sufficiently aware of perti-
 18    nent facts respecting the need for, the nature of, and the  significant  risks
 19    ordinarily  attendant  upon,  such a patient receiving such care, as to permit
 20    the giving or withholding of such consent to be a  reasonably  informed  deci-
 21    sion.  Any such consent shall be deemed valid and so informed if the physician
 22    or dentist to whom it is given or by whom it is secured has made such  disclo-
 23    sures  and  given such advice respecting pertinent facts and considerations as
 24    would ordinarily be made and given under the same or similar circumstances, by
 25    a like physician or dentist of good standing practicing in the same community.
 26    As used in this section, the term "in the same community" refers to that  geo-
 27    graphic  area ordinarily served by the licensed general hospital at or nearest
 28    to which such consent is given.
                                                                        
 29        39-4506.  FORM OF CONSENT. It is not essential to the validity of any con-
 30    sent for the furnishing of hospital, medical, dental or surgical care,  treat-
 31    ment or procedures that the consent be in writing or any other form of expres-
 32    sion;  provided  however,  when the giving of such consent is recited or docu-
 33    mented in writing and expressly authorizes the care, treatment  or  procedures
 34    to  be furnished, and when such writing or form has been executed or initialed
 35    by a person competent to give such consent for himself or another, such  writ-
 36    ten  consent,  in  the  absence  of convincing proof that it was secured mali-
 37    ciously or by fraud, is presumed to be valid for the furnishing of such  care,
 38    treatment  or procedures, and the advice and disclosures of the attending phy-
 39    sician or dentist, as well as the level of informed awareness of the giver  of
 40    such consent, shall be presumed to be sufficient.
                                                                        
 41        39-4507.  RESPONSIBILITY  FOR CONSENT AND DOCUMENTATION. Obtaining consent
 42    for health care is the duty of  the  attending  physician  or  dentist  or  of
 43    another physician or dentist acting on his or her behalf or actually providing
 44    the  contemplated  care,  treatment or procedure; provided however, a licensed
 45    hospital and any medical or dental office lay or professional employee, acting
 46    with the approval of such an attending or other physician or dentist, may per-
 47    form the ministerial act of documenting such consent by securing  the  comple-
 48    tion  and  execution of a form or statement in which the giving of consent for
 49    such care is documented by or on behalf of the patient. In performing  such  a
 50    ministerial  act, the hospital or medical or dental office lay or professional
 51    employee shall not be deemed to have engaged in the practice  of  medicine  or
 52    dentistry.
                                                                        
                                          4
                                                                        
  1        39-4508.  STATEMENT  OF  POLICY.  For purposes of sections 39-4508 through
  2    39-4514, Idaho Code:
  3        (1)  The legislature finds that adult persons have the  fundamental  right
  4    to  control  the  decisions  relating  to the rendering of their medical care,
  5    including the decision to have life-sustaining procedures  withheld  or  with-
  6    drawn.  The  legislature further finds that modern medical technology has made
  7    possible the artificial prolongation of human life beyond natural limits.  The
  8    legislature  further finds that patients are sometimes unable to express their
  9    desire to withhold or withdraw such artificial  life  prolongation  procedures
 10    which provide nothing medically necessary or beneficial to the patient because
 11    of the patient's inability to communicate with the physician.
 12        (2)  In recognition of the dignity and privacy which patients have a right
 13    to  expect,  the legislature hereby declares that the laws of this state shall
 14    recognize the right of a competent person  to  have  his  wishes  for  medical
 15    treatment and for the withdrawal of artificial life-sustaining procedures car-
 16    ried  out  even  though  that person is no longer able to communicate with the
 17    physician.
 18        (3)  It is the intent of the legislature to establish an  effective  means
 19    for  such communication. It is not the intent of the legislature that the pro-
 20    cedures described in this chapter are the only effective means of such  commu-
 21    nication,  and  nothing  in  this  chapter shall impair or supersede any legal
 22    right or legal responsibility which a person may have to effect the  withhold-
 23    ing  or  withdrawal  of  life-sustaining  procedures in any lawful manner. Any
 24    authentic expression of a person's wishes with respect to health  care  should
 25    be honored.
                                                                        
 26        39-4509.  DEFINITIONS.  As used in sections 39-4508 through 39-4514, Idaho
 27    Code:
 28        (1)  "Artificial life-sustaining procedure" means any medical procedure or
 29    intervention that utilizes mechanical means to sustain  or  supplant  a  vital
 30    function  which when applied to a qualified patient, would serve only to arti-
 31    ficially prolong life. "Artificial life-sustaining procedure" does not include
 32    the administration of medication or the performance of any  medical  procedure
 33    deemed necessary to alleviate pain.
 34        (2)  "Artificial  nutrition  and hydration" means supplying food and water
 35    through a conduit, such as a tube or intravenous line, where the recipient  is
 36    not  required  to  chew  or swallow voluntarily, but does not include assisted
 37    feeding, such as spoon feeding or bottle feeding.
 38        (3)  "Attending physician" means the physician licensed by the state board
 39    of medicine who is selected by, or assigned to, the patient and who  has  pri-
 40    mary responsibility for the treatment and care of the patient.
 41        (4)  "Competent person" means any emancipated minor or any person eighteen
 42    (18) or more years of age who is of sound mind.
 43        (5)  "Consent  to  care"  includes refusal to consent to care and/or with-
 44    drawal of care.
                                                                        
 45        39-4510.  LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH  CARE.  Any
 46    competent  person  may  execute a document known as a "Living Will and Durable
 47    Power of Attorney for Health Care." Such document shall  be  in  substantially
 48    the following form, or in another form that contains the elements set forth in
 49    this  chapter.  A  "Living Will and Durable Power of Attorney for Health Care"
 50    executed prior to the effective date of this act, but which was in the "Living
 51    Will" and/or "Durable Power of Attorney for  Health  Care"  form  pursuant  to
 52    prior  Idaho  law  at the time of execution, or in another form that contained
 53    the elements set forth in this chapter at the  time  of  execution,  shall  be
                                                                        
                                          5
                                                                        
  1    deemed to be in compliance with this chapter. A "Living Will and Durable Power
  2    of  Attorney for Health Care" or similar document(s) executed in another state
  3    which substantially complies with this chapter shall be deemed to be  in  com-
  4    pliance  with  this chapter. In this chapter, a "Living Will and Durable Power
  5    of Attorney for Health Care"  may be referred to as a  "directive."  Any  por-
  6    tions of the "Living Will and Durable Power of Attorney for Health Care" which
  7    are  left  blank  by  the  person executing the document shall be deemed to be
  8    intentional and shall not invalidate the document.
                                                                        
  9              LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 10    Date of Directive:....................
                                                                        
 11    Name of person executing Directive:...........................................
 12    Address of person executing Directive:........................................
                                                                        
 13                                    A LIVING WILL
 14                   A Directive to Withhold or to Provide Treatment
                                                                        
 15    1.  Being of sound mind, I willfully and voluntarily make known my desire that
 16    my life shall not be prolonged artificially under the circumstances set  forth
 17    below. This Directive shall only be effective if I am unable to communicate my
 18    instructions and:
 19        a.  I  have an incurable injury, disease, illness or condition and two (2)
 20        medical doctors who have examined me have certified:
 21             1.  That such injury, disease, illness or condition is terminal; and
 22             2.  That the application  of  artificial  life-sustaining  procedures
 23             would serve only to prolong artificially my life; and
 24             3.  That  my  death  is  imminent,  whether  or  not artificial life-
 25             sustaining procedures are utilized; or
 26        b.  I have been diagnosed as being in a persistent vegetative state.
                                                                        
 27    In such event, I direct that the following marked expression of my  intent  be
 28    followed,  and  that  I  receive  any  medical  treatment  or care that may be
 29    required to keep me free of pain or distress.
                                                                        
 30    Check one box and initial the line after such box:
                                                                        
 31        ........  I direct that all medical treatment, care and procedures  neces-
 32    sary  to  restore my health, sustain my life, and to abolish or alleviate pain
 33    or distress be provided to me. Nutrition and hydration, whether artificial  or
 34    nonartificial,  shall  not  be withheld or withdrawn from me if I would likely
 35    die primarily from malnutrition or dehydration rather  than  from  my  injury,
 36    disease, illness or condition.
                                                                        
 37    OR
                                                                        
 38        ........  I  direct  that  all  medical  treatment,  care  and procedures,
 39    including artificial life-sustaining procedures,  be  withheld  or  withdrawn,
 40    except that nutrition and hydration, whether artificial or nonartificial shall
 41    not  be withheld or withdrawn from me if, as a result, I would likely die pri-
 42    marily from malnutrition or dehydration rather than from my  injury,  disease,
 43    illness  or condition, as follows: (If none of the following boxes are checked
 44    and initialed, then both nutrition and hydration, of any nature, whether arti-
 45    ficial or nonartificial, shall be administered.)
                                                                        
                                          6
                                                                        
  1    Check one box and initial the line after such box:
                                                                        
  2        A.        ........  Only hydration of any nature,  whether  artificial  or
  3                       nonartificial, shall be administered;
  4        B.        ........  Only  nutrition,  of any nature, whether artificial or
  5                       nonartificial, shall be administered;
  6        C.        ........  Both nutrition and hydration, of any  nature,  whether
  7                       artificial or nonartificial shall be administered.
                                                                        
  8    OR
                                                                        
  9        ........  I  direct  that  all  medical  treatment, care and procedures be
 10    withheld or withdrawn, including withdrawal of the administration  of  artifi-
 11    cial nutrition and hydration.
                                                                        
 12    2.  This  Directive  shall be the final expression of my legal right to refuse
 13    or accept medical and surgical treatment, and I  accept  the  consequences  of
 14    such refusal or acceptance.
                                                                        
 15    3.  If  I  have been diagnosed as pregnant, this Directive shall have no force
 16    during the course of my pregnancy.
                                                                        
 17    4.  I understand the full importance of this Directive and am mentally  compe-
 18    tent to make this Directive. No participant in the making of this Directive or
 19    in its being carried into effect shall be held responsible in any way for com-
 20    plying with my directions.
                                                                        
 21                     A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 22    1.  DESIGNATION  OF HEALTH CARE AGENT. None of the following may be designated
 23    as your agent: (1) your treating  health  care  provider;  (2)  a  nonrelative
 24    employee of your treating health care provider; (3) an operator of a community
 25    care  facility;  or  (4)  a nonrelative employee of an operator of a community
 26    care facility. If the agent or an alternate agent designated in this Directive
 27    is my spouse, and our marriage is thereafter dissolved, such designation shall
 28    be thereupon revoked.
                                                                        
 29    I do hereby designate and appoint the following individual as my  attorney  in
 30    fact (agent) to make health care decisions for me as authorized in this Direc-
 31    tive.  (Insert  name,  address  and telephone number of one individual only as
 32    your agent to make health care decisions for you.)
                                                                        
 33    Name of Health Care Agent:....................................................
 34    Address of Health Care Agent:.................................................
 35    Telephone Number of Health Care Agent:........................................
                                                                        
 36    For the purposes of this Directive,  "health  care  decision"  means  consent,
 37    refusal  of  consent, or withdrawal of consent to any care, treatment, service
 38    or procedure to maintain,  diagnose or treat an individual's  physical  condi-
 39    tion.
                                                                        
 40    2.  CREATION  OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of
 41    this Directive, I create a durable power of attorney  for  health  care.  This
 42    power  of  attorney  shall  not  be affected by my subsequent incapacity. This
 43    power shall be effective only when I am unable to communicate rationally.
                                                                        
                                          7
                                                                        
  1    3.  GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
  2    Directive, including as set forth in paragraph 2 immediately above,  I  hereby
  3    grant  to  my agent full power and authority to make health care decisions for
  4    me to the same extent that I could make such decisions for myself if I had the
  5    capacity to do so. In exercising this authority, my agent  shall  make  health
  6    care decisions that are consistent with my desires as stated in this Directive
  7    or  otherwise made known to my agent including, but not limited to, my desires
  8    concerning obtaining or refusing or withdrawing life-prolonging  care,  treat-
  9    ment,  services  and  procedures, including such desires set forth in a living
 10    will or similar document executed by me, if any. (If you  want  to  limit  the
 11    authority  of  your agent to make health care decisions for you, you can state
 12    the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and
 13    Limitations") below. You can indicate your desires by including a statement of
 14    your desires in the same paragraph.)
                                                                        
 15    4.  STATEMENT OF DESIRES, SPECIAL PROVISIONS,  AND  LIMITATIONS.  (Your  agent
 16    must  make  health care decisions that are consistent with your known desires.
 17    You can, but are not required to, state your desires  in  the  space  provided
 18    below.  You  should  consider  whether you want to include a statement of your
 19    desires concerning life-prolonging care, treatment, services  and  procedures.
 20    You  can  also  include  a  statement of your desires concerning other matters
 21    relating to your health care, including a list of one or more persons whom you
 22    designate to be able to receive medical information about  you  and/or  to  be
 23    allowed  to visit you in a medical institution. You can also make your desires
 24    known to your agent by discussing your desires with  your  agent  or  by  some
 25    other  means.  If  there are any types of treatment that you do not want to be
 26    used, you should state them in the space below. If you want to  limit  in  any
 27    other  way  the authority given your agent by this Directive, you should state
 28    the limits in the space below. If you do not state any limits, your agent will
 29    have broad powers to make health care decisions for you, except to the  extent
 30    that there are limits provided by law.) In exercising the authority under this
 31    durable  power  of  attorney  for health care, my agent shall act consistently
 32    with my desires as stated below and is subject to the special  provisions  and
 33    limitations  stated  in  a  living will or similar document executed by me, if
 34    any. Additional statement of desires, special provisions, and limitations:....
 35    ..............................................................................
 36    (You may attach additional pages or documents if you need more space  to  com-
 37    plete your statement.)
                                                                        
 38    5.  INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL
 39    HEALTH.
                                                                        
 40    A.  General Grant of Power and Authority. Subject to any limitations  in  this
 41    Directive,  my  agent  has the power and authority to do all of the following:
 42    (1) Request, review  and receive any information, verbal or written, regarding
 43    my physical or mental health including, but not limited to, medical and hospi-
 44    tal records; (2) Execute on my behalf any releases or other documents that may
 45    be required in order to obtain this information; (3) Consent to the disclosure
 46    of this information; and (4) Consent to the donation of any of my  organs  for
 47    medical purposes. (If you want to limit the authority of your agent to receive
 48    and  disclose  information relating to your health, you must state the limita-
 49    tions in paragraph 4 ("Statement of Desires, Special Provisions,  and  Limita-
 50    tions") above.)
                                                                        
 51    B.  HIPAA  Release  Authority.  My  agent  shall be treated as I would be with
                                                                        
                                          8
                                                                        
  1    respect to my rights regarding the use and disclosure of my individually iden-
  2    tifiable health information or other medical records. This  release  authority
  3    applies  to  any  information governed by the Health Insurance Portability and
  4    Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and  45  CFR  160  through
  5    164.  I  authorize  any  physician,  health care professional, dentist, health
  6    plan, hospital, clinic, laboratory, pharmacy, or  other  covered  health  care
  7    provider,  any  insurance company, and the Medical Information Bureau, Inc. or
  8    other health care clearinghouse that has provided treatment or services to me,
  9    or that has paid for or is seeking payment from me for such services, to give,
 10    disclose and release to my agent, without restriction, all of my  individually
 11    identifiable  health information and medical records regarding any past, pres-
 12    ent or future medical or mental health condition,  including  all  information
 13    relating  to  the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
 14    illness, and drug or alcohol abuse. The authority given my agent shall  super-
 15    sede any other agreement that I may have made with my health care providers to
 16    restrict access to or disclosure of my individually identifiable health infor-
 17    mation.  The  authority given my agent has no expiration date and shall expire
 18    only in the event that I revoke the authority in writing and deliver it to  my
 19    health care provider.
                                                                        
 20    6.  SIGNING  DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the
 21    health care decisions that my agent is authorized by this Directive  to  make,
 22    my  agent  has the power and authority to execute on my behalf all of the fol-
 23    lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
 24    ment" and/or a "Leaving Hospital Against Medical Advice"; and (b)  Any  neces-
 25    sary waiver or release from liability required by a hospital or physician.
                                                                        
 26    7.  DESIGNATION  OF  ALTERNATE  AGENTS. (You are not required to designate any
 27    alternate agents but you may do so. Any alternate agent you designate will  be
 28    able  to  make  the  same health care decisions as the agent you designated in
 29    paragraph 1 above, in the event that agent is unable or ineligible to  act  as
 30    your  agent.  If  an  alternate  agent you designate is your spouse, he or she
 31    becomes ineligible to act as your agent if your marriage  is  thereafter  dis-
 32    solved.)  If the person designated as my agent in paragraph 1 is not available
 33    or becomes ineligible to act as my agent to make a health care decision for me
 34    or loses the mental capacity to make health care decisions for  me,  or  if  I
 35    revoke  that  person's  appointment  or  authority  to act as my agent to make
 36    health care decisions for me, then I designate and appoint the following  per-
 37    sons  to  serve as my agent to make health care decisions for me as authorized
 38    in this Directive, such persons to serve in the order listed below:
                                                                        
 39    A.  First Alternate Agent:
 40    Name..........................................................................
 41    Address.......................................................................
 42    Telephone Number..............................................................
                                                                        
 43    B.  Second Alternate Agent:
 44    Name..........................................................................
 45    Address.......................................................................
 46    Telephone Number..............................................................
                                                                        
 47    C.  Third Alternate Agent:
 48    Name..........................................................................
 49    Address.......................................................................
 50    Telephone Number..............................................................
                                                                        
                                          9
                                                                        
  1    8.  PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power  of  attorney
  2    for health care.
                                                                        
  3    DATE  AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and
  4    Durable Power of Attorney for Health Care.)
                                                                        
  5    I sign my name to this Statutory Form Living Will and Durable Power of  Attor-
  6    ney  for  Health  Care  on the date set forth at the beginning of this Form at
  7    ............... (City, State)....................
                                                                        
  8    ..............................
  9    Signature
                                                                        
 10        39-4511.  REVOCATION. (1)  A "Living Will and Durable  Power  of  Attorney
 11    for  Health  Care"  may  be  revoked at any time by the maker thereof, without
 12    regard to his mental state or competence, by any of the following methods:
 13        (a)  By being canceled, defaced, obliterated or burned, torn, or otherwise
 14        destroyed by the maker thereof, or by some person in his presence  and  by
 15        his direction;
 16        (b)  By  a  written, signed revocation of the maker thereof expressing his
 17        intent to revoke; or
 18        (c)  By an oral expression by the maker thereof expressing his  intent  to
 19        revoke.
 20        (2)  There shall be no criminal or civil liability on the part of any per-
 21    son  for  the  failure  to act upon a revocation of a "Living Will and Durable
 22    Power of Attorney for Health Care" made pursuant to this section  unless  that
 23    person has actual knowledge of the revocation.
                                                                        
 24        39-4512.  EXECUTION  OF  LIVING  WILL  AND  DURABLE  POWER OF ATTORNEY FOR
 25    HEALTH CARE. A "Living Will and Durable Power of  Attorney  for  Health  Care"
 26    shall  be effective from the date of execution unless otherwise revoked. Noth-
 27    ing in this chapter shall be construed to  prevent  a  competent  person  from
 28    reexecuting  a  "Living Will and Durable Power of Attorney for Health Care" at
 29    any time.
                                                                        
 30        39-4513.  IMMUNITY. (1) No medical personnel or health care facility shall
 31    be civilly or criminally  liable for acts or omissions  carried  out  or  per-
 32    formed  pursuant  to  the directives in a facially valid living will or by the
 33    holder of a facially valid durable power of attorney or directive  for  health
 34    care if the medical personnel or health care facility acts in good faith.
 35        (2)  Any  physician  or other health care provider who for ethical or pro-
 36    fessional reasons is incapable or unwilling to conform to the desires  of  the
 37    patient  as expressed by the procedures set forth in this chapter may withdraw
 38    without incurring any civil or criminal liability provided  the  physician  or
 39    other  health care provider makes a good faith effort to assist the patient in
 40    obtaining the services of another physician  or  other  health  care  provider
 41    before withdrawal.
 42        (3)  No  person  who  exercises the responsibilities of a durable power of
 43    attorney for health care in good faith shall be subject to civil  or  criminal
 44    liability as a result.
                                                                        
 45        39-4514.  GENERAL PROVISIONS. (1)  This chapter shall have no effect or be
 46    in  any  manner construed to apply to persons not executing a "Living Will and
 47    Durable Power of Attorney for Health Care" pursuant to this chapter nor  shall
 48    it in any manner affect the rights of any such persons or of others acting for
                                                                        
                                          10
                                                                        
  1    or  on  behalf  of  such persons to give or refuse to give consent or withhold
  2    consent for any medical care, neither  shall  this  chapter  be  construed  to
  3    affect chapter 3, title 66, Idaho Code, in any manner.
  4        (2)  The making of a "Living Will and Durable Power of Attorney for Health
  5    Care"  pursuant  to  this chapter shall not restrict, inhibit or impair in any
  6    manner the sale, procurement or issuance of any policy of life insurance,  nor
  7    shall  it  be  deemed to modify the terms of an existing policy of life insur-
  8    ance. No policy of life insurance shall be legally impaired or invalidated  in
  9    any manner by the withholding or withdrawal of artificial life-sustaining pro-
 10    cedures from an insured patient, notwithstanding any term of the policy to the
 11    contrary.
 12        (3)  No  physician,  health  facility or other health care provider and no
 13    health care service plan, insurer issuing disability  insurance,  self-insured
 14    employee  plan,  welfare benefit plan or nonprofit hospital service plan shall
 15    require any person to execute a "Living Will and Durable Power of Attorney for
 16    Health Care" as a condition for being insured for, or receiving,  health  care
 17    services.
                                                                        
 18        SECTION  3.  That  Section  5-332,  Idaho Code, be, and the same is hereby
 19    amended to read as follows:
                                                                        
 20        5-332.  CONSENT FOR EMERGENCY  MEDICAL  TREATMENT.  The  authorization  or
 21    refusal  of  consent  for  emergency medical treatment under sections 5-330 or
 22    5-331, Idaho Code, shall be governed by chapter 435, title 39, Idaho Code.
                                                                        
 23        SECTION 4.  That Section 31-3910, Idaho Code, be, and the same  is  hereby
 24    amended to read as follows:
                                                                        
 25        31-3910.  CONSENT  FOR  EMERGENCY  MEDICAL TREATMENT. The authorization or
 26    refusal of consent for emergency medical treatment under chapter 39, title 31,
 27    Idaho Code, shall be governed by chapter 435, title 39, Idaho Code.
                                                                        
 28        SECTION 5.  That Section 39-3902, Idaho Code, be, and the same  is  hereby
 29    amended to read as follows:
                                                                        
 30        39-3902.  DEFINITIONS.  For  purposes of this chapter, the following words
 31    and terms have the meanings hereinafter stated:
 32        (1)  "Emergency medical treatment" means  immediate  medical  intervention
 33    required,  according to the prevailing medical standards of judgment and prac-
 34    tice within the community, because of the medical condition of the person sub-
 35    ject to this chapter.
 36        (2)  "Evaluation committee" means an interdisciplinary team consisting  of
 37    at  least four (4) individuals qualified by education and training to evaluate
 38    an individual as required by the provisions of this chapter, and  an  advocate
 39    designated by the person subject to this chapter. Each committee must include:
 40    two (2) social workers, at least one (1) of whom must be a master's  level;  a
 41    clinical psychologist or a psychiatrist; and a physician.
 42        (3)  "Informed  assent"  means a process by which a person subject to this
 43    chapter who lacks or is alleged to lack the capacity to consent to  steriliza-
 44    tion  is  given a fair opportunity to acknowledge the nature, risks and conse-
 45    quences of the procedures and, insofar as he or  she  is  able  to,  indicates
 46    willingness and choice to undergo sterilization.
 47        (4)  "Interested person" means an interested, responsible adult including,
 48    but  not  limited to, the legal guardian, spouse, parent, legal counsel, adult
 49    child, or next of kin of a person subject to this chapter, or if none of these
                                                                        
                                          11
                                                                        
  1    are available, the department of health and welfare.
  2        (5)  "Medically necessary" means that, according to the prevailing medical
  3    standards of judgment and practice within the community, the procedure is rea-
  4    sonably calculated to prevent or treat conditions in  the  person  subject  to
  5    this chapter that endanger life, cause severe pain, or cause functionally sig-
  6    nificant  deformity  or  malfunction,  and  for  which there is not an equally
  7    effective alternative course of treatment available or suitable.
  8        (6)  "Person subject to this chapter" means all adults, except adults  who
  9    may  consent  to  their own treatment pursuant to chapter 435, title 39, Idaho
 10    Code. Adults who are alleged to lack this capacity are also persons subject to
 11    this chapter.
 12        (7)  "Physician" means a person duly licensed in the  state  of  Idaho  to
 13    practice  medicine  and  surgery  without  restriction pursuant to laws of the
 14    state of Idaho.
 15        (8)  "Records" includes, but is not limited to, all court files  of  judi-
 16    cial  proceedings  brought  under  this chapter, written clinical information,
 17    observations and reports, or fiscal documents relating to a person subject  to
 18    this  chapter who has undergone or is about to undergo sterilization and which
 19    are related to the sterilization.
 20        (9)  "Sterilization" means any medical or surgical operation or  procedure
 21    which  can  be expected to result in a patient's permanent inability to repro-
 22    duce.
                                                                        
 23        SECTION 6.  That Section 54-1142, Idaho Code, be, and the same  is  hereby
 24    amended to read as follows:
                                                                        
 25        54-1142.  AUTHORITY  IN  ABSENCE  OF  PREARRANGED FUNERAL PLAN. (1) If the
 26    decedent has not made a prearranged funeral  plan  as  set  forth  in  section
 27    54-1139,  Idaho Code, the right to control the disposition of the remains of a
 28    deceased person vests in, and devolves upon the following in the order named:
 29        (a)  The person designated in a written document executed by the  decedent
 30        and  acknowledged in the same manner as required for instruments conveying
 31        real property, and subject to such limitations,  restrictions,  or  direc-
 32        tions, as may be set forth in such document;
 33        (b)  The  person designated as agent under a durable power of attorney for
 34        health care executed by the decedent, unless such durable power of  attor-
 35        ney  for  health  care  contains  express  and clear language denying such
 36        right;
 37        (c)  The person designated in a durable power of attorney executed by  the
 38        decedent,  if  such  power of attorney contains express and clear language
 39        granting such right to the agent named in such power of attorney;
 40        (d)  The competent surviving spouse of the decedent;
 41        (e)  A majority of the competent surviving adult children of the decedent,
 42        provided that less than one-half (1/2) of the  competent  surviving  adult
 43        children  shall be vested with the right to control the disposition of the
 44        remains of the decedent if they have used reasonable efforts to notify all
 45        other competent surviving adult children of their instructions to  dispose
 46        of  the  decedent's  remains  and are not aware of any opposition to those
 47        instructions on the part of more than one-half (1/2) of all competent sur-
 48        viving adult children;
 49        (f)  The competent surviving parents or parent of the  decedent,  provided
 50        that  if one (1) of the competent surviving parents is absent, the remain-
 51        ing competent surviving parent shall be vested with the right  to  control
 52        the  disposition  of  the remains of the decedent after reasonable efforts
 53        have been made and are unsuccessful in locating the absent competent  sur-
                                                                        
                                          12
                                                                        
  1        viving parent;
  2        (g)  The person appointed by a court of competent jurisdiction as the per-
  3        sonal representative or administrator of the estate of the decedent;
  4        (h)  The  person nominated as the personal representative of the estate of
  5        the decedent in the will of the decedent;
  6        (i)  The competent adult person or persons entitled to  inherit  from  the
  7        decedent  under  the  intestate  succession  laws  of  the state of Idaho,
  8        respectively in the next degrees of kinship, provided  that  if  there  is
  9        more  than  one (1) competent surviving adult person of the same degree of
 10        kinship, the majority of those persons, and  provided  further  that  less
 11        than  the majority of competent surviving adult persons of the same degree
 12        of kinship shall be vested with the right to control  the  disposition  of
 13        the  remains of the decedent if those persons have used reasonable efforts
 14        to notify all other competent surviving adult persons of the  same  degree
 15        of  kinship of their instructions to dispose of the decedent's remains and
 16        are not aware of any opposition to those instructions on the part of  one-
 17        half  (1/2)  or  more of all competent surviving adult persons of the same
 18        degree of kinship.
 19        (2)  If any person to whom the right of control has vested pursuant to the
 20    foregoing has been charged with first or second  degree  murder  or  voluntary
 21    manslaughter  in  connection  with the decedent's death, and those charges are
 22    known to the funeral director or cemetery authority, the right of  control  is
 23    relinquished and passed on to the next qualifying person as listed above as if
 24    the  charged  person  did  not  exist;  provided  however, that if the charges
 25    against such person are dropped,  or  if  such  person  is  acquitted  of  the
 26    charges, the right of control is returned to the person.
 27        (3)  For purposes of this section:
 28        (a)  "Adult"  means  an  individual  who  is eighteen (18) years of age or
 29        older;
 30        (b)  "Child" means a natural or adopted child of the decedent;
 31        (c)  "Competent" means the individual has not been declared incompetent by
 32        a court of law, or who has been declared competent by a court of law after
 33        a prior declaration of incompetence;
 34        (d)  "Durable power of attorney" means a power of  attorney  described  in
 35        section  15-5-501,  Idaho  Code, or any similar document properly executed
 36        under the laws of another jurisdiction; and
 37        (e)  "Durable power of  attorney  for  health  care"  means  the  document
 38        described in section 39-4505 chapter 45, title 39, Idaho Code, or any sim-
 39        ilar document properly executed under the laws of another jurisdiction;
 40        (f)  "Will"  means  any testamentary device which is valid under the Idaho
 41        probate code, including, but not limited to, sections  15-2-503,  15-2-504
 42        and  15-2-506, Idaho Code, whether or not originally executed in, or under
 43        the laws of, the state of Idaho.
 44        (4) (a)  A cemetery authority or licensed funeral director or  a  licensed
 45        hospital or its authorized personnel may permit or assist in, and a physi-
 46        cian may perform, an autopsy of any remains of a decedent in its custody:
 47             (i)   If  the  decedent, prior to his death, authorizes an autopsy in
 48             his will or in another written instrument, including, but not limited
 49             to, a durable power of attorney for health care; or
 50             (ii)  Upon  the  receipt  of  a  written  authorization  signed   by,
 51             telegrammed  from, or received by facsimile transmission from, a per-
 52             son representing himself to be the person who is entitled under  this
 53             section to control the disposition of the remains of the decedent, or
 54             to be a coroner or any other duly authorized public officer; or
 55             (iii) Upon  the  receipt  of  an oral authorization obtained by tele-
                                                                        
                                          13
                                                                        
  1             phone, and recorded on tape or other recording device, from a  person
  2             representing himself to be the person who is entitled under this sec-
  3             tion to control the disposition of the remains of the decedent, or to
  4             be a coroner or any other duly authorized public officer.
  5        (b)  A  cemetery  authority  or  a licensed funeral director of a licensed
  6        hospital or its authorized personnel  is  not  liable  for  permitting  or
  7        assisting, and a physician is not liable for performing, an autopsy pursu-
  8        ant  to  the  authorization  provided  in paragraph (a) of this subsection
  9        unless he has actual notice that such representation is untrue at the time
 10        the autopsy is performed. If such authorization is contained  in  a  will,
 11        the  autopsy  may  be  performed regardless of the validity of the will in
 12        other respects and regardless of whether the will may not be offered  for,
 13        or admitted to, probate until a later date.
 14        (c)  This subsection shall not authorize the obtaining of an oral authori-
 15        zation  by  telephone, recorded on tape or other recording device, for the
 16        autopsy of a deceased person if it is made known to the physician  who  is
 17        to  perform  the  autopsy that the deceased person was, at the time of his
 18        death, a member of a religion or group which opposes autopsies.
                                                                        
 19        SECTION 7.  That Section 56-1015, Idaho Code, be, and the same  is  hereby
 20    amended to read as follows:
                                                                        
 21        56-1015.  FAILURE  TO  OBTAIN  CONSENT. No person certified under sections
 22    56-1011 through 56-1018B, Idaho Code, or physician  or  hospital  licensed  in
 23    this  state  shall be subject to civil liability, based solely upon failure to
 24    obtain consent in rendering emergency medical, surgical,  hospital  or  health
 25    services  to  any individual regardless of age where that individual is unable
 26    to give this consent for any reason and there is no  other  person  reasonably
 27    available  who is legally authorized to consent to the providing of such care,
 28    provided,  however, that such person, physician, or hospital has acted in good
 29    faith and without knowledge  of  facts  negating  consent.  The  provision  or
 30    refusal  of consent under sections 56-1011 through 56-1018B, Idaho Code, shall
 31    be governed by chapter 435, title 39, Idaho Code.
                                                                        
 32        SECTION 8.  That Section 66-405, Idaho Code, be, and the  same  is  hereby
 33    amended to read as follows:
                                                                        
 34        66-405.  ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the
 35    respondent  is  not developmentally disabled but appears in need of protective
 36    services, the court may cause the proceeding to be  expanded  or  altered  for
 37    consideration under the uniform probate code.
 38        (2)  If  it  is determined that the respondent is able to manage financial
 39    resources and meet essential requirements for physical health or  safety,  the
 40    court shall dismiss the petition.
 41        (3)  If  it  is determined that the respondent is developmentally disabled
 42    and is unable to manage  some  financial  resources  or  meet  some  essential
 43    requirements  for  physical  health or safety, the court may appoint a partial
 44    guardian and/or partial conservator on behalf  of  the  respondent.  An  order
 45    establishing  partial guardianship or partial conservatorship shall define the
 46    powers and duties of the partial guardian or partial conservator so as to per-
 47    mit the respondent to meet  essential  requirements  for  physical  health  or
 48    safety  and  to manage financial resources commensurate with his ability to do
 49    so, and shall specify all legal restrictions to which he is subject. A  person
 50    for whom  a partial guardianship or partial conservatorship has been appointed
 51    under  this chapter retains all legal and civil rights except those which have
                                                                        
                                          14
                                                                        
  1    by court order been limited or which have been  specifically  granted  to  the
  2    partial guardian or partial conservator by the court.
  3        (4)  If  it  is determined that the respondent is developmentally disabled
  4    and is unable to manage financial resources or meet essential requirements for
  5    physical health or safety even with the appointment of a partial  guardian  or
  6    partial  conservator, the court may appoint a total guardian and/or total con-
  7    servator.
  8        (5)  In the event that more than one (1)  person  seeks  to  be  appointed
  9    guardian  and/or  conservator,  the  court shall appoint the person or persons
 10    most capable of serving on behalf of the respondent; the court shall not  cus-
 11    tomarily  or  ordinarily  appoint  the department or any other organization or
 12    individual, public or private, that is or is likely to be  providing  services
 13    to the respondent.
 14        (6)  Subject  to  the  limitations  of the provisions of subsection (7) of
 15    this section, guardians or conservators may have any of the duties and  powers
 16    as  provided  in  sections  15-5-312(a)(1) through (4), 15-5-424 and 15-5-425,
 17    Idaho Code, and as specified in the order. Any order appointing a  partial  or
 18    total  guardian  or  partial or total conservator under the provisions of this
 19    section must require a report to the court at least annually. In  addition  to
 20    such other requirements imposed by law or order, the report shall include:
 21        (a)  A description of the respondent's current mental, physical and social
 22        condition;
 23        (b)  The respondent's present address and living arrangement;
 24        (c)  A  description  of  any  significant  changes  in the capacity of the
 25        respondent to meet essential requirements for physical health or safety or
 26        to manage financial resources;
 27        (d)  A description of services being provided the respondent;
 28        (e)  A description of significant actions taken by the guardian or conser-
 29        vator during the reporting period;
 30        (f)  Any significant problems relating to the guardianship or conservator-
 31        ship;
 32        (g)  A complete financial statement of the financial resources  under  the
 33        control or supervision of the guardian or conservator; and
 34        (h)  A  description of the need for continued guardianship or conservator-
 35        ship services.
 36        (7)  No guardian appointed under this chapter shall have the authority  to
 37    refuse  or  withhold consent for medically necessary treatment when the effect
 38    of withholding such treatment would seriously endanger the life or health  and
 39    well-being  of  the  person  with  a  developmental disability. To withhold or
 40    attempt to withhold such treatment shall constitute neglect of the person  and
 41    be cause for removal of the guardian. No physician or caregiver shall withhold
 42    or withdraw such treatment for a respondent whose condition is not terminal or
 43    whose death is not imminent. If the physician or caregiver cannot obtain valid
 44    consent  for medically necessary treatment from the guardian, he shall provide
 45    the  medically  necessary  treatment  as  authorized  by  section   39-4303(c)
 46    39-4503(1)(g), Idaho Code.
 47        (8)  A guardian appointed under this chapter may consent to withholding or
 48    withdrawal of artificial life-sustaining procedures, only if the respondent:
 49        (a)  Has  an incurable injury, disease, illness or condition, certified by
 50        the respondent's attending physician and at least one (1) other  physician
 51        to  be  terminal  such  that the application of artificial life-sustaining
 52        procedures would not result in the possibility of saving or  significantly
 53        prolonging the life of the respondent, and would only serve to prolong the
 54        moment of the respondent's death for a period of hours, days or weeks, and
 55        where  both  physicians certify that death is imminent, whether or not the
                                                                        
                                          15
                                                                        
  1        life-sustaining procedures are used; or
  2        (b)  Has been diagnosed by the respondent's  attending  physician  and  at
  3        least  one  (1)  other physician as being in a persistent vegetative state
  4        which is irreversible and from which the respondent will never regain con-
  5        sciousness.
  6        (9)  Any person, who has information that medically necessary treatment of
  7    a respondent has been withheld or withdrawn, may report  such  information  to
  8    adult  protective  services or to the Idaho protection and advocacy system for
  9    people with developmental disabilities, who shall have the authority to inves-
 10    tigate the report and in appropriate cases to seek a  court  order  to  ensure
 11    that medically necessary treatment is provided.
 12        If  adult protective services or the protection and advocacy system deter-
 13    mines that withholding of medical treatment violates the  provisions  of  this
 14    section,  they may petition the court for an ex parte order to provide or con-
 15    tinue the medical treatment in question. If the court finds, based on  affida-
 16    vits or other evidence, that there is probable cause to believe that the with-
 17    holding  of  medical treatment in a particular case violates the provisions of
 18    this section, and that the  life  or  health  of  the  patient  is  endangered
 19    thereby, the court shall issue an ex parte order to continue or to provide the
 20    treatment  until  such  time  as  the court can hear evidence from the parties
 21    involved. Petitions for court orders under this section shall be expedited  by
 22    the courts and heard as soon as possible. No bond shall be required of a peti-
 23    tioner under this section.
 24        (10) No  partial  or  total  guardian  or  partial  or  total  conservator
 25    appointed  under  the provisions of this section may without specific approval
 26    of the court in a proceeding separate from that in which such guardian or con-
 27    servator was appointed:
 28        (a)  Consent to medical or surgical treatment the effect of  which  perma-
 29        nently  prohibits  the conception of children by the respondent unless the
 30        treatment or procedures  are necessary to protect the physical  health  of
 31        the respondent and would be prescribed for a person who is not developmen-
 32        tally disabled;
 33        (b)  Consent to experimental surgery, procedures or medications; or
 34        (c)  Delegate the powers granted by the order.".
                                                                        
 35                                 CORRECTION TO TITLE
 36        On page 1, delete lines 2 through 19 and insert:
 37    "RELATING  TO THE MEDICAL CONSENT AND NATURAL DEATH ACT; REPEALING CHAPTERS 43
 38        AND 45, TITLE 39, IDAHO CODE; AMENDING TITLE 39, IDAHO CODE, BY THE  ADDI-
 39        TION  OF A NEW CHAPTER 45, TITLE 39, IDAHO CODE, TO SET FORTH PURPOSES, TO
 40        PROVIDE FOR CHAPTER APPLICATION, TO STATE WHO MAY  CONSENT  TO  THEIR  OWN
 41        CARE,  TO  STATE  WHO  MAY GIVE CONSENT TO CARE FOR OTHERS, TO PROVIDE FOR
 42        BLOOD TESTING, TO SET FORTH PROVISIONS APPLICABLE TO SUFFICIENCY  OF  CON-
 43        SENT  AND THE FORM OF CONSENT, TO SET FORTH RESPONSIBILITY FOR CONSENT AND
 44        DOCUMENTATION, TO PROVIDE A STATEMENT OF  LEGISLATIVE  POLICY,  TO  DEFINE
 45        TERMS,  TO  PROVIDE  FOR  A  LIVING WILL AND DURABLE POWER OF ATTORNEY FOR
 46        HEALTH CARE, TO PROVIDE FOR REVOCATION, TO PROVIDE FOR EXECUTION, TO  PRO-
 47        VIDE IMMUNITY AND TO SET FORTH GENERAL PROVISIONS; AMENDING SECTION 5-332,
 48        IDAHO  CODE,  TO  PROVIDE A CORRECT CODE REFERENCE AND TO MAKE A TECHNICAL
 49        CORRECTION; AMENDING SECTION 31-3910, IDAHO CODE,  TO  PROVIDE  A  CORRECT
 50        CODE REFERENCE; AMENDING SECTION 39-3902, IDAHO CODE, TO PROVIDE A CORRECT
 51        CODE  REFERENCE  AND  TO  MAKE  A  TECHNICAL  CORRECTION; AMENDING SECTION
 52        54-1142, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE  AND  TO  MAKE  A
 53        TECHNICAL  CORRECTION;  AMENDING SECTION 56-1015, IDAHO CODE, TO PROVIDE A
 54        CORRECT CODE REFERENCE; AND AMENDING SECTION 66-405, IDAHO CODE,  TO  PRO-
                                                                        
                                          16
                                                                        
  1        VIDE A CORRECT CODE REFERENCE.".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                              SENATE BILL NO. 1068, As Amended
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE MEDICAL CONSENT AND NATURAL DEATH ACT; REPEALING  CHAPTERS  43
  3        AND  45, TITLE 39, IDAHO CODE; AMENDING TITLE 39, IDAHO CODE, BY THE ADDI-
  4        TION OF A NEW CHAPTER 45, TITLE 39, IDAHO CODE, TO SET FORTH PURPOSES,  TO
  5        PROVIDE  FOR  CHAPTER  APPLICATION,  TO STATE WHO MAY CONSENT TO THEIR OWN
  6        CARE, TO STATE WHO MAY GIVE CONSENT TO CARE FOR  OTHERS,  TO  PROVIDE  FOR
  7        BLOOD  TESTING,  TO SET FORTH PROVISIONS APPLICABLE TO SUFFICIENCY OF CON-
  8        SENT AND THE FORM OF CONSENT, TO SET FORTH RESPONSIBILITY FOR CONSENT  AND
  9        DOCUMENTATION,  TO  PROVIDE  A  STATEMENT OF LEGISLATIVE POLICY, TO DEFINE
 10        TERMS, TO PROVIDE FOR A LIVING WILL AND  DURABLE  POWER  OF  ATTORNEY  FOR
 11        HEALTH  CARE, TO PROVIDE FOR REVOCATION, TO PROVIDE FOR EXECUTION, TO PRO-
 12        VIDE IMMUNITY AND TO SET FORTH GENERAL PROVISIONS; AMENDING SECTION 5-332,
 13        IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO  MAKE  A  TECHNICAL
 14        CORRECTION;  AMENDING  SECTION  31-3910,  IDAHO CODE, TO PROVIDE A CORRECT
 15        CODE REFERENCE; AMENDING SECTION 39-3902, IDAHO CODE, TO PROVIDE A CORRECT
 16        CODE REFERENCE AND  TO  MAKE  A  TECHNICAL  CORRECTION;  AMENDING  SECTION
 17        54-1142,  IDAHO  CODE,  TO  PROVIDE A CORRECT CODE REFERENCE AND TO MAKE A
 18        TECHNICAL CORRECTION; AMENDING SECTION 56-1015, IDAHO CODE, TO  PROVIDE  A
 19        CORRECT  CODE  REFERENCE; AND AMENDING SECTION 66-405, IDAHO CODE, TO PRO-
 20        VIDE A CORRECT CODE REFERENCE.
                                                                        
 21    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 22        SECTION 1.  That Chapters 43 and 45, Title 39, Idaho  Code,  be,  and  the
 23    same are hereby repealed.
                                                                        
 24        SECTION  2.  That Title 39, Idaho Code, be, and the same is hereby amended
 25    by the addition thereto of a NEW CHAPTER, to be known and designated as  Chap-
 26    ter 45, Title 39, Idaho Code, and to read as follows:
                                                                        
 27                                      CHAPTER 45
 28                      THE MEDICAL CONSENT AND NATURAL DEATH ACT
                                                                        
 29        39-4501.  PURPOSES -- APPLICATION. (1)  The primary purposes of this chap-
 30    ter are:
 31        (a)  To provide and codify Idaho law concerning consent for the furnishing
 32        of  hospital,  medical,  dental or surgical care, treatment or procedures,
 33        and concerning what constitutes an informed consent for such care,  treat-
 34        ment or procedures; and
 35        (b)  To provide certainty and clarity in the law of medical consent in the
 36        furtherance of high standards of health care and its ready availability in
 37        proper cases.
 38        (2)  Nothing in this chapter shall be deemed to amend or repeal the provi-
 39    sions of chapter 3, title 66, Idaho Code, as those provisions pertain to medi-
 40    cal attendance upon or hospitalization of the mentally ill, nor the provisions
 41    of  chapter  6,  title 18, Idaho Code, pertaining to the provision of examina-
                                                                        
                                           2
                                                                        
  1    tions, prescriptions, devices and informational materials regarding prevention
  2    of pregnancy or pertaining to therapeutic abortions and consent to the perfor-
  3    mance thereof.
  4        (3)  Nothing in this chapter shall be construed to permit or  require  the
  5    provision  of  health  care  for  a  patient in contravention of the patient's
  6    stated or implied objection thereto upon religious grounds nor shall  anything
  7    in  this  chapter be construed to require the granting of permission for or on
  8    behalf of any patient who is not able to act for himself by his parent, spouse
  9    or guardian in violation of the  religious  beliefs  of  the  patient  or  the
 10    patient's parent or spouse.
                                                                        
 11        39-4502.  PERSONS  WHO  MAY CONSENT TO THEIR OWN CARE. Any person of ordi-
 12    nary intelligence and awareness sufficient for him or her generally to compre-
 13    hend the need for, the nature of and the significant risks ordinarily inherent
 14    in, any contemplated hospital, medical, dental or surgical care, treatment  or
 15    procedure is competent to consent thereto on his or her own behalf. Any physi-
 16    cian,  dentist,  hospital  or  other  duly  authorized person may provide such
 17    health care and services in reliance upon such a  consent  if  the  consenting
 18    person  appears  to  the  physician or dentist securing the consent to possess
 19    such requisite intelligence and awareness at the time of giving the consent.
                                                                        
 20        39-4503.  PERSONS WHO MAY GIVE CONSENT TO CARE  FOR  OTHERS.  (1)  Consent
 21    for the furnishing of hospital, medical, dental or surgical care, treatment or
 22    procedures  to  any  person  who is not then capable of giving such consent as
 23    provided in this chapter or who is a minor or incompetent person, may be given
 24    or refused in the order of priority set forth hereafter unless the patient  is
 25    a  competent person who has refused to give such consent, and provided further
 26    that this subsection shall not be deemed to authorize any person  to  override
 27    the express refusal by a competent patient to give such consent himself:
 28        (a)  The legal guardian of such person;
 29        (b)  The  person named in a "Living Will and Durable Power of Attorney for
 30        Health Care" pursuant to section 39-4510, Idaho Code, or a  similar  docu-
 31        ment authorized by this chapter;
 32        (c)  If married, the spouse of such person;
 33        (d)  A parent of such person;
 34        (e)  Any  relative  representing  himself or herself to be an appropriate,
 35        responsible person to act under the circumstances;
 36        (f)  Any other competent individual representing himself or herself to  be
 37        responsible for the health care of such person; or
 38        (g)  If the subject person presents a medical emergency or there is a sub-
 39        stantial  likelihood  of  his or her life or health being seriously endan-
 40        gered by withholding or delay in the rendering of such hospital,  medical,
 41        dental  or  surgical care to such patient, the attending physician or den-
 42        tist may, in his or her discretion, authorize and/or  provide  such  care,
 43        treatment  or  procedure  as he or she deems appropriate, and all persons,
 44        agencies and institutions thereafter furnishing the same,  including  such
 45        physician  or  dentist, may proceed as if informed, valid consent therefor
 46        had been otherwise duly given.
 47        (2)  No person who, in good faith, gives consent or authorization for  the
 48    provision  of  hospital, medical, dental or surgical care, treatment or proce-
 49    dures to another as provided by this chapter shall be subject to civil liabil-
 50    ity therefor.
 51        (3)  No physician, dentist, hospital or other duly authorized  person  who
 52    in good faith obtains consent from a person pursuant to either section 39-4502
 53    or 39-4503(1), Idaho Code, shall be subject to civil liability therefor.
                                                                        
                                           3
                                                                        
  1        39-4504.  BLOOD TESTING. (1)  A physician may consent to ordering tests of
  2    a patient's or a deceased person's blood or other body fluids for the presence
  3    of blood-transmitted or body fluid-transmitted viruses or diseases without the
  4    prior consent of the patient if:
  5        (a)  There  has  been  or  is  likely  to be a significant exposure to the
  6        patient's or a deceased person's blood or body fluids by a person  provid-
  7        ing  emergency or medical services to such patient which may result in the
  8        transmittal of a virus or disease; and
  9        (b)  The patient is unconscious or incapable of  giving  informed  consent
 10        and the physician is unable to obtain consent pursuant to section 39-4503,
 11        Idaho Code.
 12        (2)  The department of health and welfare shall promulgate rules identify-
 13    ing  the  blood-transmitted  or body fluid-transmitted viruses or diseases for
 14    which blood tests or body fluid tests can be ordered under  this  section  and
 15    defining the term "significant exposure" as provided in this section.
 16        (3)  Results of tests conducted under this section which confirm the pres-
 17    ence  of  a blood-transmitted or body fluid-transmitted virus or disease shall
 18    be reported to the director of the department of health  and  welfare  in  the
 19    name of the patient or deceased person. The department records containing such
 20    test  results  shall  be used only by public health officials who must conduct
 21    investigations. The exposed person shall only be informed of  the  results  of
 22    the test and shall not be informed of the name of the patient or deceased per-
 23    son.  Protocols  shall be established by hospitals to maintain confidentiality
 24    while disseminating the  necessary test result information to persons who  may
 25    have  a  significant  exposure  to  blood or other body fluids and to maintain
 26    records of such tests to preserve the confidentiality of the test results.
 27        (4)  Any person who willfully or maliciously discloses the  results  of  a
 28    test  conducted under this section, except pursuant to a written authorization
 29    by the person whose blood was tested or by such person's authorized  represen-
 30    tative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
                                                                        
 31        39-4505.  SUFFICIENCY  OF CONSENT. Consent for the furnishing of hospital,
 32    medical, dental or surgical care, treatment or procedures shall  be  valid  in
 33    all  respects if the person giving the consent is sufficiently aware of perti-
 34    nent facts respecting the need for, the nature of, and the  significant  risks
 35    ordinarily  attendant  upon,  such a patient receiving such care, as to permit
 36    the giving or withholding of such consent to be a  reasonably  informed  deci-
 37    sion.  Any such consent shall be deemed valid and so informed if the physician
 38    or dentist to whom it is given or by whom it is secured has made such  disclo-
 39    sures  and  given such advice respecting pertinent facts and considerations as
 40    would ordinarily be made and given under the same or similar circumstances, by
 41    a like physician or dentist of good standing practicing in the same community.
 42    As used in this section, the term "in the same community" refers to that  geo-
 43    graphic  area ordinarily served by the licensed general hospital at or nearest
 44    to which such consent is given.
                                                                        
 45        39-4506.  FORM OF CONSENT. It is not essential to the validity of any con-
 46    sent for the furnishing of hospital, medical, dental or surgical care,  treat-
 47    ment or procedures that the consent be in writing or any other form of expres-
 48    sion;  provided  however,  when the giving of such consent is recited or docu-
 49    mented in writing and expressly authorizes the care, treatment  or  procedures
 50    to  be furnished, and when such writing or form has been executed or initialed
 51    by a person competent to give such consent for himself or another, such  writ-
 52    ten  consent,  in  the  absence  of convincing proof that it was secured mali-
 53    ciously or by fraud, is presumed to be valid for the furnishing of such  care,
                                                                        
                                           4
                                                                        
  1    treatment  or procedures, and the advice and disclosures of the attending phy-
  2    sician or dentist, as well as the level of informed awareness of the giver  of
  3    such consent, shall be presumed to be sufficient.
                                                                        
  4        39-4507.  RESPONSIBILITY  FOR CONSENT AND DOCUMENTATION. Obtaining consent
  5    for health care is the duty of  the  attending  physician  or  dentist  or  of
  6    another physician or dentist acting on his or her behalf or actually providing
  7    the  contemplated  care,  treatment or procedure; provided however, a licensed
  8    hospital and any medical or dental office lay or professional employee, acting
  9    with the approval of such an attending or other physician or dentist, may per-
 10    form the ministerial act of documenting such consent by securing  the  comple-
 11    tion  and  execution of a form or statement in which the giving of consent for
 12    such care is documented by or on behalf of the patient. In performing  such  a
 13    ministerial  act, the hospital or medical or dental office lay or professional
 14    employee shall not be deemed to have engaged in the practice  of  medicine  or
 15    dentistry.
                                                                        
 16        39-4508.  STATEMENT  OF  POLICY.  For purposes of sections 39-4508 through
 17    39-4514, Idaho Code:
 18        (1)  The legislature finds that adult persons have the  fundamental  right
 19    to  control  the  decisions  relating  to the rendering of their medical care,
 20    including the decision to have life-sustaining procedures  withheld  or  with-
 21    drawn.  The  legislature further finds that modern medical technology has made
 22    possible the artificial prolongation of human life beyond natural limits.  The
 23    legislature  further finds that patients are sometimes unable to express their
 24    desire to withhold or withdraw such artificial  life  prolongation  procedures
 25    which provide nothing medically necessary or beneficial to the patient because
 26    of the patient's inability to communicate with the physician.
 27        (2)  In recognition of the dignity and privacy which patients have a right
 28    to  expect,  the legislature hereby declares that the laws of this state shall
 29    recognize the right of a competent person  to  have  his  wishes  for  medical
 30    treatment and for the withdrawal of artificial life-sustaining procedures car-
 31    ried  out  even  though  that person is no longer able to communicate with the
 32    physician.
 33        (3)  It is the intent of the legislature to establish an  effective  means
 34    for  such communication. It is not the intent of the legislature that the pro-
 35    cedures described in this chapter are the only effective means of such  commu-
 36    nication,  and  nothing  in  this  chapter shall impair or supersede any legal
 37    right or legal responsibility which a person may have to effect the  withhold-
 38    ing  or  withdrawal  of  life-sustaining  procedures in any lawful manner. Any
 39    authentic expression of a person's wishes with respect to health  care  should
 40    be honored.
                                                                        
 41        39-4509.  DEFINITIONS.  As used in sections 39-4508 through 39-4514, Idaho
 42    Code:
 43        (1)  "Artificial life-sustaining procedure" means any medical procedure or
 44    intervention that utilizes mechanical means to sustain  or  supplant  a  vital
 45    function  which when applied to a qualified patient, would serve only to arti-
 46    ficially prolong life. "Artificial life-sustaining procedure" does not include
 47    the administration of medication or the performance of any  medical  procedure
 48    deemed necessary to alleviate pain.
 49        (2)  "Artificial  nutrition  and hydration" means supplying food and water
 50    through a conduit, such as a tube or intravenous line, where the recipient  is
 51    not  required  to  chew  or swallow voluntarily, but does not include assisted
 52    feeding, such as spoon feeding or bottle feeding.
                                                                        
                                           5
                                                                        
  1        (3)  "Attending physician" means the physician licensed by the state board
  2    of medicine who is selected by, or assigned to, the patient and who  has  pri-
  3    mary responsibility for the treatment and care of the patient.
  4        (4)  "Competent person" means any emancipated minor or any person eighteen
  5    (18) or more years of age who is of sound mind.
  6        (5)  "Consent  to  care"  includes refusal to consent to care and/or with-
  7    drawal of care.
                                                                        
  8        39-4510.  LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH  CARE.  Any
  9    competent  person  may  execute a document known as a "Living Will and Durable
 10    Power of Attorney for Health Care." Such document shall  be  in  substantially
 11    the following form, or in another form that contains the elements set forth in
 12    this  chapter.  A  "Living Will and Durable Power of Attorney for Health Care"
 13    executed prior to the effective date of this act, but which was in the "Living
 14    Will" and/or "Durable Power of Attorney for  Health  Care"  form  pursuant  to
 15    prior  Idaho  law  at the time of execution, or in another form that contained
 16    the elements set forth in this chapter at the  time  of  execution,  shall  be
 17    deemed to be in compliance with this chapter. A "Living Will and Durable Power
 18    of  Attorney for Health Care" or similar document(s) executed in another state
 19    which substantially complies with this chapter shall be deemed to be  in  com-
 20    pliance  with  this chapter. In this chapter, a "Living Will and Durable Power
 21    of Attorney for Health Care"  may be referred to as a  "directive."  Any  por-
 22    tions of the "Living Will and Durable Power of Attorney for Health Care" which
 23    are  left  blank  by  the  person executing the document shall be deemed to be
 24    intentional and shall not invalidate the document.
                                                                        
 25              LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 26    Date of Directive:....................
                                                                        
 27    Name of person executing Directive:...........................................
 28    Address of person executing Directive:........................................
                                                                        
 29                                    A LIVING WILL
 30                   A Directive to Withhold or to Provide Treatment
                                                                        
 31    1.  Being of sound mind, I willfully and voluntarily make known my desire that
 32    my life shall not be prolonged artificially under the circumstances set  forth
 33    below. This Directive shall only be effective if I am unable to communicate my
 34    instructions and:
 35        a.  I  have an incurable injury, disease, illness or condition and two (2)
 36        medical doctors who have examined me have certified:
 37             1.  That such injury, disease, illness or condition is terminal; and
 38             2.  That the application  of  artificial  life-sustaining  procedures
 39             would serve only to prolong artificially my life; and
 40             3.  That  my  death  is  imminent,  whether  or  not artificial life-
 41             sustaining procedures are utilized; or
 42        b.  I have been diagnosed as being in a persistent vegetative state.
                                                                        
 43    In such event, I direct that the following marked expression of my  intent  be
 44    followed,  and  that  I  receive  any  medical  treatment  or care that may be
 45    required to keep me free of pain or distress.
                                                                        
 46    Check one box and initial the line after such box:
                                                                        
                                           6
                                                                        
  1        ........  I direct that all medical treatment, care and procedures  neces-
  2    sary  to  restore my health, sustain my life, and to abolish or alleviate pain
  3    or distress be provided to me. Nutrition and hydration, whether artificial  or
  4    nonartificial,  shall  not  be withheld or withdrawn from me if I would likely
  5    die primarily from malnutrition or dehydration rather  than  from  my  injury,
  6    disease, illness or condition.
                                                                        
  7    OR
                                                                        
  8        ........  I  direct  that  all  medical  treatment,  care  and procedures,
  9    including artificial life-sustaining procedures,  be  withheld  or  withdrawn,
 10    except that nutrition and hydration, whether artificial or nonartificial shall
 11    not  be withheld or withdrawn from me if, as a result, I would likely die pri-
 12    marily from malnutrition or dehydration rather than from my  injury,  disease,
 13    illness  or condition, as follows: (If none of the following boxes are checked
 14    and initialed, then both nutrition and hydration, of any nature, whether arti-
 15    ficial or nonartificial, shall be administered.)
                                                                        
 16    Check one box and initial the line after such box:
                                                                        
 17        A.        ........  Only hydration of any nature,  whether  artificial  or
 18                       nonartificial, shall be administered;
 19        B.        ........  Only  nutrition,  of any nature, whether artificial or
 20                       nonartificial, shall be administered;
 21        C.        ........  Both nutrition and hydration, of any  nature,  whether
 22                       artificial or nonartificial shall be administered.
                                                                        
 23    OR
                                                                        
 24        ........  I  direct  that  all  medical  treatment, care and procedures be
 25    withheld or withdrawn, including withdrawal of the administration  of  artifi-
 26    cial nutrition and hydration.
                                                                        
 27    2.  This  Directive  shall be the final expression of my legal right to refuse
 28    or accept medical and surgical treatment, and I  accept  the  consequences  of
 29    such refusal or acceptance.
                                                                        
 30    3.  If  I  have been diagnosed as pregnant, this Directive shall have no force
 31    during the course of my pregnancy.
                                                                        
 32    4.  I understand the full importance of this Directive and am mentally  compe-
 33    tent to make this Directive. No participant in the making of this Directive or
 34    in its being carried into effect shall be held responsible in any way for com-
 35    plying with my directions.
                                                                        
 36                     A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 37    1.  DESIGNATION  OF HEALTH CARE AGENT. None of the following may be designated
 38    as your agent: (1) your treating  health  care  provider;  (2)  a  nonrelative
 39    employee of your treating health care provider; (3) an operator of a community
 40    care  facility;  or  (4)  a nonrelative employee of an operator of a community
 41    care facility. If the agent or an alternate agent designated in this Directive
 42    is my spouse, and our marriage is thereafter dissolved, such designation shall
 43    be thereupon revoked.
                                                                        
                                           7
                                                                        
  1    I do hereby designate and appoint the following individual as my  attorney  in
  2    fact (agent) to make health care decisions for me as authorized in this Direc-
  3    tive.  (Insert  name,  address  and telephone number of one individual only as
  4    your agent to make health care decisions for you.)
                                                                        
  5    Name of Health Care Agent:....................................................
  6    Address of Health Care Agent:.................................................
  7    Telephone Number of Health Care Agent:........................................
                                                                        
  8    For the purposes of this Directive,  "health  care  decision"  means  consent,
  9    refusal  of  consent, or withdrawal of consent to any care, treatment, service
 10    or procedure to maintain,  diagnose or treat an individual's  physical  condi-
 11    tion.
                                                                        
 12    2.  CREATION  OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of
 13    this Directive, I create a durable power of attorney  for  health  care.  This
 14    power  of  attorney  shall  not  be affected by my subsequent incapacity. This
 15    power shall be effective only when I am unable to communicate rationally.
                                                                        
 16    3.  GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
 17    Directive, including as set forth in paragraph 2 immediately above,  I  hereby
 18    grant  to  my agent full power and authority to make health care decisions for
 19    me to the same extent that I could make such decisions for myself if I had the
 20    capacity to do so. In exercising this authority, my agent  shall  make  health
 21    care decisions that are consistent with my desires as stated in this Directive
 22    or  otherwise made known to my agent including, but not limited to, my desires
 23    concerning obtaining or refusing or withdrawing life-prolonging  care,  treat-
 24    ment,  services  and  procedures, including such desires set forth in a living
 25    will or similar document executed by me, if any. (If you  want  to  limit  the
 26    authority  of  your agent to make health care decisions for you, you can state
 27    the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and
 28    Limitations") below. You can indicate your desires by including a statement of
 29    your desires in the same paragraph.)
                                                                        
 30    4.  STATEMENT OF DESIRES, SPECIAL PROVISIONS,  AND  LIMITATIONS.  (Your  agent
 31    must  make  health care decisions that are consistent with your known desires.
 32    You can, but are not required to, state your desires  in  the  space  provided
 33    below.  You  should  consider  whether you want to include a statement of your
 34    desires concerning life-prolonging care, treatment, services  and  procedures.
 35    You  can  also  include  a  statement of your desires concerning other matters
 36    relating to your health care, including a list of one or more persons whom you
 37    designate to be able to receive medical information about  you  and/or  to  be
 38    allowed  to visit you in a medical institution. You can also make your desires
 39    known to your agent by discussing your desires with  your  agent  or  by  some
 40    other  means.  If  there are any types of treatment that you do not want to be
 41    used, you should state them in the space below. If you want to  limit  in  any
 42    other  way  the authority given your agent by this Directive, you should state
 43    the limits in the space below. If you do not state any limits, your agent will
 44    have broad powers to make health care decisions for you, except to the  extent
 45    that there are limits provided by law.) In exercising the authority under this
 46    durable  power  of  attorney  for health care, my agent shall act consistently
 47    with my desires as stated below and is subject to the special  provisions  and
 48    limitations  stated  in  a  living will or similar document executed by me, if
 49    any. Additional statement of desires, special provisions, and limitations:....
 50    ..............................................................................
                                                                        
                                           8
                                                                        
  1    (You may attach additional pages or documents if you need more space  to  com-
  2    plete your statement.)
                                                                        
  3    5.  INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL
  4    HEALTH.
                                                                        
  5    A.  General Grant of Power and Authority. Subject to any limitations  in  this
  6    Directive,  my  agent  has the power and authority to do all of the following:
  7    (1) Request, review  and receive any information, verbal or written, regarding
  8    my physical or mental health including, but not limited to, medical and hospi-
  9    tal records; (2) Execute on my behalf any releases or other documents that may
 10    be required in order to obtain this information; (3) Consent to the disclosure
 11    of this information; and (4) Consent to the donation of any of my  organs  for
 12    medical purposes. (If you want to limit the authority of your agent to receive
 13    and  disclose  information relating to your health, you must state the limita-
 14    tions in paragraph 4 ("Statement of Desires, Special Provisions,  and  Limita-
 15    tions") above.)
                                                                        
 16    B.  HIPAA  Release  Authority.  My  agent  shall be treated as I would be with
 17    respect to my rights regarding the use and disclosure of my individually iden-
 18    tifiable health information or other medical records. This  release  authority
 19    applies  to  any  information governed by the Health Insurance Portability and
 20    Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and  45  CFR  160  through
 21    164.  I  authorize  any  physician,  health care professional, dentist, health
 22    plan, hospital, clinic, laboratory, pharmacy, or  other  covered  health  care
 23    provider,  any  insurance company, and the Medical Information Bureau, Inc. or
 24    other health care clearinghouse that has provided treatment or services to me,
 25    or that has paid for or is seeking payment from me for such services, to give,
 26    disclose and release to my agent, without restriction, all of my  individually
 27    identifiable  health information and medical records regarding any past, pres-
 28    ent or future medical or mental health condition,  including  all  information
 29    relating  to  the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
 30    illness, and drug or alcohol abuse. The authority given my agent shall  super-
 31    sede any other agreement that I may have made with my health care providers to
 32    restrict access to or disclosure of my individually identifiable health infor-
 33    mation.  The  authority given my agent has no expiration date and shall expire
 34    only in the event that I revoke the authority in writing and deliver it to  my
 35    health care provider.
                                                                        
 36    6.  SIGNING  DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the
 37    health care decisions that my agent is authorized by this Directive  to  make,
 38    my  agent  has the power and authority to execute on my behalf all of the fol-
 39    lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
 40    ment" and/or a "Leaving Hospital Against Medical Advice"; and (b)  Any  neces-
 41    sary waiver or release from liability required by a hospital or physician.
                                                                        
 42    7.  DESIGNATION  OF  ALTERNATE  AGENTS. (You are not required to designate any
 43    alternate agents but you may do so. Any alternate agent you designate will  be
 44    able  to  make  the  same health care decisions as the agent you designated in
 45    paragraph 1 above, in the event that agent is unable or ineligible to  act  as
 46    your  agent.  If  an  alternate  agent you designate is your spouse, he or she
 47    becomes ineligible to act as your agent if your marriage  is  thereafter  dis-
 48    solved.)  If the person designated as my agent in paragraph 1 is not available
 49    or becomes ineligible to act as my agent to make a health care decision for me
 50    or loses the mental capacity to make health care decisions for  me,  or  if  I
                                                                        
                                           9
                                                                        
  1    revoke  that  person's  appointment  or  authority  to act as my agent to make
  2    health care decisions for me, then I designate and appoint the following  per-
  3    sons  to  serve as my agent to make health care decisions for me as authorized
  4    in this Directive, such persons to serve in the order listed below:
                                                                        
  5    A.  First Alternate Agent:
  6    Name..........................................................................
  7    Address.......................................................................
  8    Telephone Number..............................................................
                                                                        
  9    B.  Second Alternate Agent:
 10    Name..........................................................................
 11    Address.......................................................................
 12    Telephone Number..............................................................
                                                                        
 13    C.  Third Alternate Agent:
 14    Name..........................................................................
 15    Address.......................................................................
 16    Telephone Number..............................................................
                                                                        
 17    8.  PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power  of  attorney
 18    for health care.
                                                                        
 19    DATE  AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and
 20    Durable Power of Attorney for Health Care.)
                                                                        
 21    I sign my name to this Statutory Form Living Will and Durable Power of  Attor-
 22    ney  for  Health  Care  on the date set forth at the beginning of this Form at
 23    ............... (City, State)....................
                                                                        
 24    ..............................
 25    Signature
                                                                        
 26        39-4511.  REVOCATION. (1)  A "Living Will and Durable  Power  of  Attorney
 27    for  Health  Care"  may  be  revoked at any time by the maker thereof, without
 28    regard to his mental state or competence, by any of the following methods:
 29        (a)  By being canceled, defaced, obliterated or burned, torn, or otherwise
 30        destroyed by the maker thereof, or by some person in his presence  and  by
 31        his direction;
 32        (b)  By  a  written, signed revocation of the maker thereof expressing his
 33        intent to revoke; or
 34        (c)  By an oral expression by the maker thereof expressing his  intent  to
 35        revoke.
 36        (2)  There shall be no criminal or civil liability on the part of any per-
 37    son  for  the  failure  to act upon a revocation of a "Living Will and Durable
 38    Power of Attorney for Health Care" made pursuant to this section  unless  that
 39    person has actual knowledge of the revocation.
                                                                        
 40        39-4512.  EXECUTION  OF  LIVING  WILL  AND  DURABLE  POWER OF ATTORNEY FOR
 41    HEALTH CARE. A "Living Will and Durable Power of  Attorney  for  Health  Care"
 42    shall  be effective from the date of execution unless otherwise revoked. Noth-
 43    ing in this chapter shall be construed to  prevent  a  competent  person  from
 44    reexecuting  a  "Living Will and Durable Power of Attorney for Health Care" at
 45    any time.
                                                                        
                                           10
                                                                        
  1        39-4513.  IMMUNITY. (1) No medical personnel or health care facility shall
  2    be civilly or criminally  liable for acts or omissions  carried  out  or  per-
  3    formed  pursuant  to  the directives in a facially valid living will or by the
  4    holder of a facially valid durable power of attorney or directive  for  health
  5    care if the medical personnel or health care facility acts in good faith.
  6        (2)  Any  physician  or other health care provider who for ethical or pro-
  7    fessional reasons is incapable or unwilling to conform to the desires  of  the
  8    patient  as expressed by the procedures set forth in this chapter may withdraw
  9    without incurring any civil or criminal liability provided  the  physician  or
 10    other  health care provider makes a good faith effort to assist the patient in
 11    obtaining the services of another physician  or  other  health  care  provider
 12    before withdrawal.
 13        (3)  No  person  who  exercises the responsibilities of a durable power of
 14    attorney for health care in good faith shall be subject to civil  or  criminal
 15    liability as a result.
                                                                        
 16        39-4514.  GENERAL PROVISIONS. (1)  This chapter shall have no effect or be
 17    in  any  manner construed to apply to persons not executing a "Living Will and
 18    Durable Power of Attorney for Health Care" pursuant to this chapter nor  shall
 19    it in any manner affect the rights of any such persons or of others acting for
 20    or  on  behalf  of  such persons to give or refuse to give consent or withhold
 21    consent for any medical care, neither  shall  this  chapter  be  construed  to
 22    affect chapter 3, title 66, Idaho Code, in any manner.
 23        (2)  The making of a "Living Will and Durable Power of Attorney for Health
 24    Care"  pursuant  to  this chapter shall not restrict, inhibit or impair in any
 25    manner the sale, procurement or issuance of any policy of life insurance,  nor
 26    shall  it  be  deemed to modify the terms of an existing policy of life insur-
 27    ance. No policy of life insurance shall be legally impaired or invalidated  in
 28    any manner by the withholding or withdrawal of artificial life-sustaining pro-
 29    cedures from an insured patient, notwithstanding any term of the policy to the
 30    contrary.
 31        (3)  No  physician,  health  facility or other health care provider and no
 32    health care service plan, insurer issuing disability  insurance,  self-insured
 33    employee  plan,  welfare benefit plan or nonprofit hospital service plan shall
 34    require any person to execute a "Living Will and Durable Power of Attorney for
 35    Health Care" as a condition for being insured for, or receiving,  health  care
 36    services.
                                                                        
 37        SECTION  3.  That  Section  5-332,  Idaho Code, be, and the same is hereby
 38    amended to read as follows:
                                                                        
 39        5-332.  CONSENT FOR EMERGENCY  MEDICAL  TREATMENT.  The  authorization  or
 40    refusal  of  consent  for  emergency medical treatment under sections 5-330 or
 41    5-331, Idaho Code, shall be governed by chapter 435, title 39, Idaho Code.
                                                                        
 42        SECTION 4.  That Section 31-3910, Idaho Code, be, and the same  is  hereby
 43    amended to read as follows:
                                                                        
 44        31-3910.  CONSENT  FOR  EMERGENCY  MEDICAL TREATMENT. The authorization or
 45    refusal of consent for emergency medical treatment under chapter 39, title 31,
 46    Idaho Code, shall be governed by chapter 435, title 39, Idaho Code.
                                                                        
 47        SECTION 5.  That Section 39-3902, Idaho Code, be, and the same  is  hereby
 48    amended to read as follows:
                                                                        
                                           11
                                                                        
  1        39-3902.  DEFINITIONS.  For  purposes of this chapter, the following words
  2    and terms have the meanings hereinafter stated:
  3        (1)  "Emergency medical treatment" means  immediate  medical  intervention
  4    required,  according to the prevailing medical standards of judgment and prac-
  5    tice within the community, because of the medical condition of the person sub-
  6    ject to this chapter.
  7        (2)  "Evaluation committee" means an interdisciplinary team consisting  of
  8    at  least four (4) individuals qualified by education and training to evaluate
  9    an individual as required by the provisions of this chapter, and  an  advocate
 10    designated by the person subject to this chapter. Each committee must include:
 11    two (2) social workers, at least one (1) of whom must be a master's  level;  a
 12    clinical psychologist or a psychiatrist; and a physician.
 13        (3)  "Informed  assent"  means a process by which a person subject to this
 14    chapter who lacks or is alleged to lack the capacity to consent to  steriliza-
 15    tion  is  given a fair opportunity to acknowledge the nature, risks and conse-
 16    quences of the procedures and, insofar as he or  she  is  able  to,  indicates
 17    willingness and choice to undergo sterilization.
 18        (4)  "Interested person" means an interested, responsible adult including,
 19    but  not  limited to, the legal guardian, spouse, parent, legal counsel, adult
 20    child, or next of kin of a person subject to this chapter, or if none of these
 21    are available, the department of health and welfare.
 22        (5)  "Medically necessary" means that, according to the prevailing medical
 23    standards of judgment and practice within the community, the procedure is rea-
 24    sonably calculated to prevent or treat conditions in  the  person  subject  to
 25    this chapter that endanger life, cause severe pain, or cause functionally sig-
 26    nificant  deformity  or  malfunction,  and  for  which there is not an equally
 27    effective alternative course of treatment available or suitable.
 28        (6)  "Person subject to this chapter" means all adults, except adults  who
 29    may  consent  to  their own treatment pursuant to chapter 435, title 39, Idaho
 30    Code. Adults who are alleged to lack this capacity are also persons subject to
 31    this chapter.
 32        (7)  "Physician" means a person duly licensed in the  state  of  Idaho  to
 33    practice  medicine  and  surgery  without  restriction pursuant to laws of the
 34    state of Idaho.
 35        (8)  "Records" includes, but is not limited to, all court files  of  judi-
 36    cial  proceedings  brought  under  this chapter, written clinical information,
 37    observations and reports, or fiscal documents relating to a person subject  to
 38    this  chapter who has undergone or is about to undergo sterilization and which
 39    are related to the sterilization.
 40        (9)  "Sterilization" means any medical or surgical operation or  procedure
 41    which  can  be expected to result in a patient's permanent inability to repro-
 42    duce.
                                                                        
 43        SECTION 6.  That Section 54-1142, Idaho Code, be, and the same  is  hereby
 44    amended to read as follows:
                                                                        
 45        54-1142.  AUTHORITY  IN  ABSENCE  OF  PREARRANGED FUNERAL PLAN. (1) If the
 46    decedent has not made a prearranged funeral  plan  as  set  forth  in  section
 47    54-1139,  Idaho Code, the right to control the disposition of the remains of a
 48    deceased person vests in, and devolves upon the following in the order named:
 49        (a)  The person designated in a written document executed by the  decedent
 50        and  acknowledged in the same manner as required for instruments conveying
 51        real property, and subject to such limitations,  restrictions,  or  direc-
 52        tions, as may be set forth in such document;
 53        (b)  The  person designated as agent under a durable power of attorney for
                                                                        
                                           12
                                                                        
  1        health care executed by the decedent, unless such durable power of  attor-
  2        ney  for  health  care  contains  express  and clear language denying such
  3        right;
  4        (c)  The person designated in a durable power of attorney executed by  the
  5        decedent,  if  such  power of attorney contains express and clear language
  6        granting such right to the agent named in such power of attorney;
  7        (d)  The competent surviving spouse of the decedent;
  8        (e)  A majority of the competent surviving adult children of the decedent,
  9        provided that less than one-half (1/2) of the  competent  surviving  adult
 10        children  shall be vested with the right to control the disposition of the
 11        remains of the decedent if they have used reasonable efforts to notify all
 12        other competent surviving adult children of their instructions to  dispose
 13        of  the  decedent's  remains  and are not aware of any opposition to those
 14        instructions on the part of more than one-half (1/2) of all competent sur-
 15        viving adult children;
 16        (f)  The competent surviving parents or parent of the  decedent,  provided
 17        that  if one (1) of the competent surviving parents is absent, the remain-
 18        ing competent surviving parent shall be vested with the right  to  control
 19        the  disposition  of  the remains of the decedent after reasonable efforts
 20        have been made and are unsuccessful in locating the absent competent  sur-
 21        viving parent;
 22        (g)  The person appointed by a court of competent jurisdiction as the per-
 23        sonal representative or administrator of the estate of the decedent;
 24        (h)  The  person nominated as the personal representative of the estate of
 25        the decedent in the will of the decedent;
 26        (i)  The competent adult person or persons entitled to  inherit  from  the
 27        decedent  under  the  intestate  succession  laws  of  the state of Idaho,
 28        respectively in the next degrees of kinship, provided  that  if  there  is
 29        more  than  one (1) competent surviving adult person of the same degree of
 30        kinship, the majority of those persons, and  provided  further  that  less
 31        than  the majority of competent surviving adult persons of the same degree
 32        of kinship shall be vested with the right to control  the  disposition  of
 33        the  remains of the decedent if those persons have used reasonable efforts
 34        to notify all other competent surviving adult persons of the  same  degree
 35        of  kinship of their instructions to dispose of the decedent's remains and
 36        are not aware of any opposition to those instructions on the part of  one-
 37        half  (1/2)  or  more of all competent surviving adult persons of the same
 38        degree of kinship.
 39        (2)  If any person to whom the right of control has vested pursuant to the
 40    foregoing has been charged with first or second  degree  murder  or  voluntary
 41    manslaughter  in  connection  with the decedent's death, and those charges are
 42    known to the funeral director or cemetery authority, the right of  control  is
 43    relinquished and passed on to the next qualifying person as listed above as if
 44    the  charged  person  did  not  exist;  provided  however, that if the charges
 45    against such person are dropped,  or  if  such  person  is  acquitted  of  the
 46    charges, the right of control is returned to the person.
 47        (3)  For purposes of this section:
 48        (a)  "Adult"  means  an  individual  who  is eighteen (18) years of age or
 49        older;
 50        (b)  "Child" means a natural or adopted child of the decedent;
 51        (c)  "Competent" means the individual has not been declared incompetent by
 52        a court of law, or who has been declared competent by a court of law after
 53        a prior declaration of incompetence;
 54        (d)  "Durable power of attorney" means a power of  attorney  described  in
 55        section  15-5-501,  Idaho  Code, or any similar document properly executed
                                                                        
                                           13
                                                                        
  1        under the laws of another jurisdiction; and
  2        (e)  "Durable power of  attorney  for  health  care"  means  the  document
  3        described in section 39-4505 chapter 45, title 39, Idaho Code, or any sim-
  4        ilar document properly executed under the laws of another jurisdiction;
  5        (f)  "Will"  means  any testamentary device which is valid under the Idaho
  6        probate code, including, but not limited to, sections  15-2-503,  15-2-504
  7        and  15-2-506, Idaho Code, whether or not originally executed in, or under
  8        the laws of, the state of Idaho.
  9        (4) (a)  A cemetery authority or licensed funeral director or  a  licensed
 10        hospital or its authorized personnel may permit or assist in, and a physi-
 11        cian may perform, an autopsy of any remains of a decedent in its custody:
 12             (i)   If  the  decedent, prior to his death, authorizes an autopsy in
 13             his will or in another written instrument, including, but not limited
 14             to, a durable power of attorney for health care; or
 15             (ii)  Upon  the  receipt  of  a  written  authorization  signed   by,
 16             telegrammed  from, or received by facsimile transmission from, a per-
 17             son representing himself to be the person who is entitled under  this
 18             section to control the disposition of the remains of the decedent, or
 19             to be a coroner or any other duly authorized public officer; or
 20             (iii) Upon  the  receipt  of  an oral authorization obtained by tele-
 21             phone, and recorded on tape or other recording device, from a  person
 22             representing himself to be the person who is entitled under this sec-
 23             tion to control the disposition of the remains of the decedent, or to
 24             be a coroner or any other duly authorized public officer.
 25        (b)  A  cemetery  authority  or  a licensed funeral director of a licensed
 26        hospital or its authorized personnel  is  not  liable  for  permitting  or
 27        assisting, and a physician is not liable for performing, an autopsy pursu-
 28        ant  to  the  authorization  provided  in paragraph (a) of this subsection
 29        unless he has actual notice that such representation is untrue at the time
 30        the autopsy is performed. If such authorization is contained  in  a  will,
 31        the  autopsy  may  be  performed regardless of the validity of the will in
 32        other respects and regardless of whether the will may not be offered  for,
 33        or admitted to, probate until a later date.
 34        (c)  This subsection shall not authorize the obtaining of an oral authori-
 35        zation  by  telephone, recorded on tape or other recording device, for the
 36        autopsy of a deceased person if it is made known to the physician  who  is
 37        to  perform  the  autopsy that the deceased person was, at the time of his
 38        death, a member of a religion or group which opposes autopsies.
                                                                        
 39        SECTION 7.  That Section 56-1015, Idaho Code, be, and the same  is  hereby
 40    amended to read as follows:
                                                                        
 41        56-1015.  FAILURE  TO  OBTAIN  CONSENT. No person certified under sections
 42    56-1011 through 56-1018B, Idaho Code, or physician  or  hospital  licensed  in
 43    this  state  shall be subject to civil liability, based solely upon failure to
 44    obtain consent in rendering emergency medical, surgical,  hospital  or  health
 45    services  to  any individual regardless of age where that individual is unable
 46    to give this consent for any reason and there is no  other  person  reasonably
 47    available  who is legally authorized to consent to the providing of such care,
 48    provided,  however, that such person, physician, or hospital has acted in good
 49    faith and without knowledge  of  facts  negating  consent.  The  provision  or
 50    refusal  of consent under sections 56-1011 through 56-1018B, Idaho Code, shall
 51    be governed by chapter 435, title 39, Idaho Code.
                                                                        
 52        SECTION 8.  That Section 66-405, Idaho Code, be, and the  same  is  hereby
                                                                        
                                           14
                                                                        
  1    amended to read as follows:
                                                                        
  2        66-405.  ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the
  3    respondent  is  not developmentally disabled but appears in need of protective
  4    services, the court may cause the proceeding to be  expanded  or  altered  for
  5    consideration under the uniform probate code.
  6        (2)  If  it  is determined that the respondent is able to manage financial
  7    resources and meet essential requirements for physical health or  safety,  the
  8    court shall dismiss the petition.
  9        (3)  If  it  is determined that the respondent is developmentally disabled
 10    and is unable to manage  some  financial  resources  or  meet  some  essential
 11    requirements  for  physical  health or safety, the court may appoint a partial
 12    guardian and/or partial conservator on behalf  of  the  respondent.  An  order
 13    establishing  partial guardianship or partial conservatorship shall define the
 14    powers and duties of the partial guardian or partial conservator so as to per-
 15    mit the respondent to meet  essential  requirements  for  physical  health  or
 16    safety  and  to manage financial resources commensurate with his ability to do
 17    so, and shall specify all legal restrictions to which he is subject. A  person
 18    for whom  a partial guardianship or partial conservatorship has been appointed
 19    under  this chapter retains all legal and civil rights except those which have
 20    by court order been limited or which have been  specifically  granted  to  the
 21    partial guardian or partial conservator by the court.
 22        (4)  If  it  is determined that the respondent is developmentally disabled
 23    and is unable to manage financial resources or meet essential requirements for
 24    physical health or safety even with the appointment of a partial  guardian  or
 25    partial  conservator, the court may appoint a total guardian and/or total con-
 26    servator.
 27        (5)  In the event that more than one (1)  person  seeks  to  be  appointed
 28    guardian  and/or  conservator,  the  court shall appoint the person or persons
 29    most capable of serving on behalf of the respondent; the court shall not  cus-
 30    tomarily  or  ordinarily  appoint  the department or any other organization or
 31    individual, public or private, that is or is likely to be  providing  services
 32    to the respondent.
 33        (6)  Subject  to  the  limitations  of the provisions of subsection (7) of
 34    this section, guardians or conservators may have any of the duties and  powers
 35    as  provided  in  sections  15-5-312(a)(1) through (4), 15-5-424 and 15-5-425,
 36    Idaho Code, and as specified in the order. Any order appointing a  partial  or
 37    total  guardian  or  partial or total conservator under the provisions of this
 38    section must require a report to the court at least annually. In  addition  to
 39    such other requirements imposed by law or order, the report shall include:
 40        (a)  A description of the respondent's current mental, physical and social
 41        condition;
 42        (b)  The respondent's present address and living arrangement;
 43        (c)  A  description  of  any  significant  changes  in the capacity of the
 44        respondent to meet essential requirements for physical health or safety or
 45        to manage financial resources;
 46        (d)  A description of services being provided the respondent;
 47        (e)  A description of significant actions taken by the guardian or conser-
 48        vator during the reporting period;
 49        (f)  Any significant problems relating to the guardianship or conservator-
 50        ship;
 51        (g)  A complete financial statement of the financial resources  under  the
 52        control or supervision of the guardian or conservator; and
 53        (h)  A  description of the need for continued guardianship or conservator-
 54        ship services.
                                                                        
                                           15
                                                                        
  1        (7)  No guardian appointed under this chapter shall have the authority  to
  2    refuse  or  withhold consent for medically necessary treatment when the effect
  3    of withholding such treatment would seriously endanger the life or health  and
  4    well-being  of  the  person  with  a  developmental disability. To withhold or
  5    attempt to withhold such treatment shall constitute neglect of the person  and
  6    be cause for removal of the guardian. No physician or caregiver shall withhold
  7    or withdraw such treatment for a respondent whose condition is not terminal or
  8    whose death is not imminent. If the physician or caregiver cannot obtain valid
  9    consent  for medically necessary treatment from the guardian, he shall provide
 10    the  medically  necessary  treatment  as  authorized  by  section   39-4303(c)
 11    39-4503(1)(g), Idaho Code.
 12        (8)  A guardian appointed under this chapter may consent to withholding or
 13    withdrawal of artificial life-sustaining procedures, only if the respondent:
 14        (a)  Has  an incurable injury, disease, illness or condition, certified by
 15        the respondent's attending physician and at least one (1) other  physician
 16        to  be  terminal  such  that the application of artificial life-sustaining
 17        procedures would not result in the possibility of saving or  significantly
 18        prolonging the life of the respondent, and would only serve to prolong the
 19        moment of the respondent's death for a period of hours, days or weeks, and
 20        where  both  physicians certify that death is imminent, whether or not the
 21        life-sustaining procedures are used; or
 22        (b)  Has been diagnosed by the respondent's  attending  physician  and  at
 23        least  one  (1)  other physician as being in a persistent vegetative state
 24        which is irreversible and from which the respondent will never regain con-
 25        sciousness.
 26        (9)  Any person, who has information that medically necessary treatment of
 27    a respondent has been withheld or withdrawn, may report  such  information  to
 28    adult  protective  services or to the Idaho protection and advocacy system for
 29    people with developmental disabilities, who shall have the authority to inves-
 30    tigate the report and in appropriate cases to seek a  court  order  to  ensure
 31    that medically necessary treatment is provided.
 32        If  adult protective services or the protection and advocacy system deter-
 33    mines that withholding of medical treatment violates the  provisions  of  this
 34    section,  they may petition the court for an ex parte order to provide or con-
 35    tinue the medical treatment in question. If the court finds, based on  affida-
 36    vits or other evidence, that there is probable cause to believe that the with-
 37    holding  of  medical treatment in a particular case violates the provisions of
 38    this section, and that the  life  or  health  of  the  patient  is  endangered
 39    thereby, the court shall issue an ex parte order to continue or to provide the
 40    treatment  until  such  time  as  the court can hear evidence from the parties
 41    involved. Petitions for court orders under this section shall be expedited  by
 42    the courts and heard as soon as possible. No bond shall be required of a peti-
 43    tioner under this section.
 44        (10) No  partial  or  total  guardian  or  partial  or  total  conservator
 45    appointed  under  the provisions of this section may without specific approval
 46    of the court in a proceeding separate from that in which such guardian or con-
 47    servator was appointed:
 48        (a)  Consent to medical or surgical treatment the effect of  which  perma-
 49        nently  prohibits  the conception of children by the respondent unless the
 50        treatment or procedures are necessary to protect the  physical  health  of
 51        the respondent and would be prescribed for a person who is not developmen-
 52        tally disabled;
 53        (b)  Consent to experimental surgery, procedures or medications; or
 54        (c)  Delegate the powers granted by the order.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE

                            RS 14704

Section One: Currently there are two acts in the Idaho Code that
deal with medical consents: Chapter 43 of Title 39; and, Chapter
45 of Title 39.  This Act creates a single unified Act. 
Therefore, the existing Medical Consent Act, Chapter 43 of Title
39, is repealed in its entirety, and appropriate sections of that
Act included in the new combined Act.

Section Two:  Similarly, the existing terms of the Natural Death
Act, Chapter 45 of Title 39, Idaho Code, are repealed, and
replaced by the new unified Act.  The methods and purposes of the
Medical Consent Act and the Natural Death Act are retained, but
are clarified and simplified, with overlapping or conflicting
sections brought together and unified.  The Living Will and
Durable Power of Attorney For Health Care, formerly spread into
two documents, are combined in a single document, although the
person executing the form can choose to fill out either or both
of such subparts.  The existing signature method of the Living
Will is used for the combined form.


                          FISCAL NOTE

This bill will have no fiscal impact.



CONTACT:
Name:     Robert L. Aldridge
          1209 North Eighth Street
          Boise, Idaho 83702-4297
          Telephone: office: (208) 336-9880  home: (208) 888-4668
          Fax: (208) 336-9882
          e-mail: rlaldridge@hotmail.com

          William A. Von tagen
          Deputy Attorney General
          Telephone: 334-4140      Fax: 334-3446
          e-mail: bvontagen@ag.state.id.us

          Peter C. Sisson
          Sisson & Sisson
          605 East Highland View Drive
          Boise, Idaho 83702
          Telephone: (208) 387-0729    Fax: (208) 331-5009
          e-mail: sissonlaw@cableone.net


STATEMENT OF PURPOSE/FISCAL NOTE                       S 1068