US Laws, Codes, Statutes & Cases

Chapter 127 — Powers of Attorney; Advance Directives for Health Care; Declarations for Mental Health Treatment; Death with Dignity

 

2005 EDITION

 

 

POWERS OF ATTORNEY; HEALTH CARE DIRECTIVES

 

PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY; TRUSTS

 

POWERS OF ATTORNEY

 

127.005     When power of attorney in effect; accounting to conservator

 

127.015     Power of attorney not revoked until death known

 

127.025     Authority under power of attorney recognizable regardless of date of execution

 

127.035     Limitations on liability of person reasonably relying on power of attorney

 

127.045     Duty of attorney-in-fact or agent under power of attorney

 

ADVANCE DIRECTIVES FOR HEALTH CARE

 

(Definitions)

 

127.505     Definitions for ORS 127.505 to 127.660

 

(Health Care Decisions Generally)

 

127.507     Capable adults may make own health care decisions

 

(Formalities of Executing Advance Directive)

 

127.510     Designation of attorney-in-fact; execution of health care instruction; duration

 

127.515     Manner of executing advance directive; forms; witnesses; directives executed out of state

 

127.520     Persons not eligible to serve as attorney-in-fact; manner of disqualifying persons for service as attorney-in-fact

 

127.525     Acceptance of appointment; withdrawal

 

(Form of Advance Directive)

 

127.531     Form of advance directive

 

(Effect of Executing Advance Directive)

 

127.535     Authority of health care representative; duties; objection by principal

 

127.540     Limitations on authority of health care representative

 

(Provisions Generally Applicable to Advance Directives and Health Care Decisions)

 

127.545     Revocation of advance directive or health care decision; when revocation effective; effect of executing power of attorney for health care

 

127.550     Petition for judicial review of advance directives; scope of review; authority to file petition

 

127.555     Designation of attending physician; liability of health care representative and health care provider

 

127.560     Provisions not exclusive; effect of provisions on civil and criminal liability of health care representative and provider

 

127.565     Independent medical judgment of provider; effect of advance directive on insurance

 

127.570     Mercy killing; suicide

 

127.575     Instrument presumed valid

 

127.580     Presumption of consent to artificially administered nutrition and hydration; exceptions

 

127.625     Providers under no duty to participate in withdrawal or withholding of certain health care; duty of provider who is unwilling to participate

 

127.635     Withdrawal of life-sustaining procedures; conditions; selection of health care representative in certain cases; required consultation

 

127.640     Physician to determine that conditions met before withdrawing or withholding certain health care

 

127.642     Principal to be provided with certain care to insure comfort and cleanliness

 

(Requirements Imposed on Health Care Organizations Relating to Rights of Individuals to Make Health Care Decisions)

 

127.646     Definitions for ORS 127.646 to 127.654

 

127.649     Health care organizations required to have written policies and procedures on providing information on patient’s right to make health care decisions

 

127.652     Time of providing information

 

127.654     Scope of requirement; limitation on liability for failure to comply

 

(Previously Executed Advance Directives)

 

127.658     Effect of ORS 127.505 to 127.660 on previously executed advance directives

 

(Short Title)

 

127.660     Short title

 

DECLARATIONS FOR MENTAL HEALTH TREATMENT

 

127.700     Definitions for ORS 127.700 to 127.737

 

127.702     Persons who may make declaration for mental health treatment; period of validity

 

127.703     Required policies regarding mental health treatment rights information; declarations for mental health treatment

127.705     Designation of attorney-in-fact for decisions about mental health treatment

 

127.707     Execution of declaration; witnesses

 

127.710     Operation of declaration; physician or provider to act in accordance with declaration

 

127.712     Scope of authority of attorney-in-fact; powers and duties; limitation on liability

 

127.715     Prohibitions against requiring person to execute or refrain from executing declaration

 

127.717     Declaration to be made part of medical record; physician or provider to comply with declaration; withdrawal of physician or provider

 

127.720     Circumstances in which physician or provider may disregard declaration

 

127.722     Revocation of declaration

 

127.725     Limitations on liability of physician or provider

 

127.727     Persons prohibited from serving as attorney-in-fact

 

127.730     Persons prohibited from serving as witnesses to declaration

 

127.732     Withdrawal of attorney-in-fact; rescission of withdrawal

 

127.736     Form of declaration

 

127.737     Certain other laws applicable to declaration

 

THE OREGON DEATH WITH DIGNITY ACT

 

(General Provisions)

 

127.800     Definitions

 

(Written Request for Medication to End One’s Life in a Humane and Dignified Manner)

 

127.805     Who may initiate a written request for medication

 

127.810     Form of the written request

 

(Safeguards)

 

127.815     Attending physician responsibilities

 

127.820     Consulting physician confirmation

 

127.825     Counseling referral

 

127.830     Informed decision

 

127.835     Family notification

 

127.840     Written and oral requests

 

127.845     Right to rescind request

 

127.850     Waiting periods

 

127.855     Medical record documentation requirements

 

127.860     Residency requirement

 

127.865     Reporting requirements

 

127.870     Effect on construction of wills, contracts and statutes

 

127.875     Insurance or annuity policies

 

127.880     Construction of Act

 

(Immunities and Liabilities)

 

127.885     Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions

 

127.890     Liabilities

 

127.892     Claims by governmental entity for costs incurred

 

(Severability)

 

127.895     Severability

 

(Form of the Request)

 

127.897     Form of the request

 

PENALTIES

 

127.995     Penalties

 

POWERS OF ATTORNEY

 

      127.005 When power of attorney in effect; accounting to conservator. (1) When a principal designates another an attorney-in-fact or agent by a power of attorney in writing and the writing does not contain words that otherwise limit the period of time of its effectiveness:

      (a) The power of attorney shall remain in effect until the power is revoked by the principal;

      (b) The powers of the attorney-in-fact or agent are unaffected by the passage of time; and

      (c) The powers of the attorney-in-fact or agent shall be exercisable by the attorney-in-fact or agent on behalf of the principal notwithstanding the later disability or incompetence of the principal at law.

      (2) All acts done by the attorney-in-fact or agent under the power of attorney during any period of disability or incompetence of the principal at law shall have the same effect and shall inure to the benefit of and bind the principal as though the principal were not disabled or incompetent.

      (3) If a conservator is appointed thereafter for the principal, the attorney-in-fact or agent, during the continuation of that appointment, shall account to the conservator rather than to the principal. The conservator has the same power that the principal would have, but for the disability or incompetence of the principal, to revoke, suspend or terminate all or any part of the power of attorney or agency.

      (4) This section does not apply to powers of attorney for health care executed under ORS 127.505 to 127.660 and 127.995. [Formerly 126.407; 1993 c.767 §25; 2001 c.395 §4]

 

      127.010 [Repealed by 1969 c.591 §305]

 

      127.015 Power of attorney not revoked until death known. (1) The death of any principal who has executed a power of attorney in writing does not revoke or terminate the agency as to the attorney-in-fact or agent who, without actual knowledge of the death of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and heirs, devisees and personal representatives of the principal.

      (2) An affidavit, executed by the attorney-in-fact or agent stating that the attorney-in-fact or agent did not have, at the time of doing an act under the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.

      (3) This section shall not be construed to alter or affect any provision for revocation or termination contained in the power of attorney. [Formerly 126.413]

 

      127.020 [Repealed by 1969 c.591 §305]

 

      127.025 Authority under power of attorney recognizable regardless of date of execution. A person may not refuse to recognize the authority of an attorney-in-fact or agent under a power of attorney based solely on the passage of time since the power of attorney was executed. [2001 c.395 §1]

 

      127.030 [Repealed by 1969 c.591 §305]

 

      127.035 Limitations on liability of person reasonably relying on power of attorney. Any person who reasonably relies in good faith on the authority of an attorney-in-fact or agent under a power of attorney is not liable to any other person based on that reliance, and is not required to ensure that assets of the principal that are paid or delivered to the attorney-in-fact or agent are properly applied. Any person who has not received actual notice of revocation of a power of attorney is not liable to any other person by reason of relying on a power of attorney that has been revoked. [2001 c.395 §2]

 

      127.040 [Repealed by 1969 c.591 §305]

 

      127.045 Duty of attorney-in-fact or agent under power of attorney. Unless otherwise provided in the power of attorney document, an attorney-in-fact or agent must use the property of the principal for the benefit of the principal. [2001 c.395 §3]

 

      127.050 [Repealed by 1969 c.591 §305]

 

      127.060 [Repealed by 1969 c.591 §305]

 

      127.070 [Repealed by 1969 c.591 §305]

 

      127.080 [Repealed by 1969 c.591 §305]

 

      127.090 [Repealed by 1969 c.591 §305]

 

      127.100 [Repealed by 1969 c.591 §305]

 

      127.110 [Repealed by 1969 c.591 §305]

 

      127.120 [Repealed by 1969 c.591 §305]

 

      127.130 [Repealed by 1969 c.591 §305]

 

      127.140 [Repealed by 1969 c.591 §305]

 

      127.150 [Repealed by 1969 c.591 §305]

 

      127.160 [Repealed by 1969 c.591 §305]

 

      127.170 [Repealed by 1969 c.591 §305]

 

      127.180 [Repealed by 1969 c.591 §305]

 

      127.190 [Repealed by 1969 c.591 §305]

 

      127.310 [Repealed by 1969 c.591 §305]

 

      127.320 [Repealed by 1969 c.591 §305]

 

      127.330 [Repealed by 1969 c.591 §305]

 

      127.340 [Repealed by 1969 c.591 §305]

 

      127.350 [Repealed by 1969 c.591 §305]

 

ADVANCE DIRECTIVES FOR HEALTH CARE

 

(Definitions)

 

      127.505 Definitions for ORS 127.505 to 127.660. As used in ORS 127.505 to 127.660 and 127.995:

      (1) “Adult” means an individual who is 18 years of age or older, who has been adjudicated an emancipated minor or who is married.

      (2) “Advance directive” means a document that contains a health care instruction or a power of attorney for health care.

      (3) “Appointment” means a power of attorney for health care, letters of guardianship or a court order appointing a health care representative.

      (4) “Artificially administered nutrition and hydration” means a medical intervention to provide food and water by tube, mechanical device or other medically assisted method. “Artificially administered nutrition and hydration” does not include the usual and typical provision of nutrition and hydration, such as the provision of nutrition and hydration by cup, hand, bottle, drinking straw or eating utensil.

      (5) “Attending physician” means the physician who has primary responsibility for the care and treatment of the principal.

      (6) “Attorney-in-fact” means an adult appointed to make health care decisions for a principal under a power of attorney for health care, and includes an alternative attorney-in-fact.

      (7) “Health care” means diagnosis, treatment or care of disease, injury and congenital or degenerative conditions, including the use, maintenance, withdrawal or withholding of life-sustaining procedures and the use, maintenance, withdrawal or withholding of artificially administered nutrition and hydration.

      (8) “Health care decision” means consent, refusal of consent or withholding or withdrawal of consent to health care, and includes decisions relating to admission to or discharge from a health care facility.

      (9) “Health care facility” means a health care facility as defined in ORS 442.015, a domiciliary care facility as defined in ORS 443.205, a residential facility as defined in ORS 443.400, an adult foster home as defined in ORS 443.705 or a hospice program as defined in ORS 443.850.

      (10) “Health care instruction” or “instruction” means a document executed by a principal to indicate the principal’s instructions regarding health care decisions.

      (11) “Health care provider” means a person licensed, certified or otherwise authorized or permitted by the law of this state to administer health care in the ordinary course of business or practice of a profession, and includes a health care facility.

      (12) “Health care representative” means:

      (a) An attorney-in-fact;

      (b) A person who has authority to make health care decisions for a principal under the provisions of ORS 127.635 (2) or (3); or

      (c) A guardian or other person, appointed by a court to make health care decisions for a principal.

      (13) “Incapable” means that in the opinion of the court in a proceeding to appoint or confirm authority of a health care representative, or in the opinion of the principal’s attending physician, a principal lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the principal’s manner of communicating if those persons are available. “Capable” means not incapable.

      (14) “Instrument” means an advance directive, acceptance, disqualification, withdrawal, court order, court appointment or other document governing health care decisions.

      (15) “Life support” means life-sustaining procedures.

      (16) “Life-sustaining procedure” means any medical procedure, pharmaceutical, medical device or medical intervention that maintains life by sustaining, restoring or supplanting a vital function. “Life-sustaining procedure” does not include routine care necessary to sustain patient cleanliness and comfort.

      (17) “Medically confirmed” means the medical opinion of the attending physician has been confirmed by a second physician who has examined the patient and who has clinical privileges or expertise with respect to the condition to be confirmed.

      (18) “Permanently unconscious” means completely lacking an awareness of self and external environment, with no reasonable possibility of a return to a conscious state, and that condition has been medically confirmed by a neurological specialist who is an expert in the examination of unresponsive individuals.

      (19) “Physician” means an individual licensed to practice medicine by the Board of Medical Examiners for the State of Oregon.

      (20) “Power of attorney for health care” means a power of attorney document that authorizes an attorney-in-fact to make health care decisions for the principal when the principal is incapable.

      (21) “Principal” means:

      (a) An adult who has executed an advance directive;

      (b) A person of any age who has a health care representative;

      (c) A person for whom a health care representative is sought; or

      (d) A person being evaluated for capability who will have a health care representative if the person is determined to be incapable.

      (22) “Terminal condition” means a health condition in which death is imminent irrespective of treatment, and where the application of life-sustaining procedures or the artificial administration of nutrition and hydration serves only to postpone the moment of death of the principal.

      (23) “Tube feeding” means artificially administered nutrition and hydration. [1989 c.914 §1; 1991 c.470 §11; 1993 c.767 §1]

 

(Health Care Decisions Generally)

 

      127.507 Capable adults may make own health care decisions. Capable adults may make their own health care decisions. [1993 c.767 §2]

 

(Formalities of Executing Advance Directive)

 

      127.510 Designation of attorney-in-fact; execution of health care instruction; duration. (1) A capable adult may designate in writing a competent adult to serve as attorney-in-fact for health care. A capable adult may also designate a competent adult to serve as alternative attorney-in-fact if the original designee is unavailable, unable or unwilling to serve as attorney-in-fact at any time after the power of attorney for health care is executed. The power of attorney for health care is effective when it is signed, witnessed and accepted as required by ORS 127.505 to 127.660 and 127.995. The attorney-in-fact so appointed shall make health care decisions on behalf of the principal if the principal becomes incapable.

      (2) A capable adult may execute a health care instruction. The instruction shall be effective when it is signed and witnessed as required by ORS 127.505 to 127.660 and 127.995.

      (3) Unless the period of time that an advance directive is to be effective is limited by the terms of the advance directive, the advance directive shall continue in effect until:

      (a) The principal dies; or

      (b) The advance directive is revoked, suspended or superseded pursuant to ORS 127.545.

      (4) Notwithstanding subsection (3) of this section, if the principal is incapable at the expiration of the term of the advance directive, the advance directive continues in effect until:

      (a) The principal is no longer incapable;

      (b) The principal dies; or

      (c) The advance directive is revoked, suspended or superseded pursuant to the provisions of ORS 127.545.

      (5) A health care provider shall make a copy of an advance directive and any other instrument a part of the principal’s medical record when a copy of that instrument is provided to the principal’s health care provider.

      (6) Notwithstanding subsections (3) and (4) of this section, an anatomical gift, as defined in ORS 97.950, made on an advance directive is effective. [1989 c.914 §2; 1993 c.767 §3; 1995 c.717 §13]

 

      127.515 Manner of executing advance directive; forms; witnesses; directives executed out of state. (1) An advance directive may be executed by a resident or nonresident adult of this state in the manner provided by ORS 127.505 to 127.660 and 127.995.

      (2) A power of attorney for health care must be in the form provided by Part B of the advance directive form set forth in ORS 127.531, or must be in the form provided by ORS 127.530 (1991 Edition).

      (3) A health care instruction must be in the form provided by Part C of the advance directive form set forth in ORS 127.531, or must be in the form provided by ORS 127.610 (1991 Edition).

      (4) An advance directive must reflect the date of the principal’s signature. To be valid, an advance directive must be witnessed by at least two adults as follows:

      (a) Each witness shall witness either the signing of the instrument by the principal or the principal’s acknowledgment of the signature of the principal.

      (b) Each witness shall make the written declaration as set forth in the form provided in ORS 127.531.

      (c) One of the witnesses shall be a person who is not:

      (A) A relative of the principal by blood, marriage or adoption;

      (B) A person who at the time the advance directive is signed would be entitled to any portion of the estate of the principal upon death under any will or by operation of law; or

      (C) An owner, operator or employee of a health care facility where the principal is a patient or resident.

      (d) The attorney-in-fact for health care or alternative attorney-in-fact may not be a witness. The principal’s attending physician at the time the advance directive is signed may not be a witness.

      (e) If the principal is a patient in a long term care facility at the time the advance directive is executed, one of the witnesses must be an individual designated by the facility and having any qualifications that may be specified by the Department of Human Services by rule.

      (5) Notwithstanding subsections (2) to (4) of this section, an advance directive executed by an adult who at the time of execution resided in another state, in compliance with the formalities of execution required by the laws of that state, the laws of the state where the principal was located at the time of execution or the laws of this state, is validly executed for the purposes of ORS 127.505 to 127.660 and 127.995 and may be given effect in accordance with its provisions, subject to the laws of this state. [1989 c.914 §3; 1993 c.767 §4]

 

      127.520 Persons not eligible to serve as attorney-in-fact; manner of disqualifying persons for service as attorney-in-fact. (1) Except as provided in ORS 127.635 or as may be allowed by court order, the following persons may not serve as health care representatives if unrelated to the principal by blood, marriage or adoption:

      (a) The attending physician or an employee of the attending physician.

      (b) An owner, operator or employee of a health care facility in which the principal is a patient or resident, unless the health care representative was appointed before the principal’s admission to the facility.

      (2) A capable adult may disqualify any other person from making health care decisions for the capable adult. The disqualification must be in writing and signed by the capable adult. The disqualification must specifically designate those persons who are disqualified.

      (3) A health care representative whose authority has been revoked by a court is disqualified.

      (4) A health care provider who has actual knowledge of a disqualification may not accept a health care decision from a disqualified individual.

      (5) A person who has been disqualified from making health care decisions for a principal, and who is aware of that disqualification, may not make health care decisions for the principal. [1989 c.914 §4; 1993 c.767 §5]

 

      127.525 Acceptance of appointment; withdrawal. For an appointment under a power of attorney for health care to be effective, the attorney-in-fact must accept the appointment in writing. Subject to the right of the attorney-in-fact to withdraw, the acceptance imposes a duty on the attorney-in-fact to make health care decisions on behalf of the principal at such time as the principal becomes incapable. Until the principal becomes incapable, the attorney-in-fact may withdraw by giving notice to the principal. After the principal becomes incapable, the attorney-in-fact may withdraw by giving notice to the health care provider. [1989 c.914 §5; 1993 c.767 §6]

 

(Form of Advance Directive)

 

      127.530 [1989 c.914 §6; repealed by 1993 c.767 §7 (127.531 enacted in lieu of 127.530)]

 

      127.531 Form of advance directive. (1) The form of an advance directive executed by an Oregon resident must be the same as the form set forth in this section to be valid. In any place in the form that requires the initials of the principal, any mark by the principal is effective to indicate the principal’s intent.

      (2) An advance directive shall be in the following form:

______________________________________________________________________________

ADVANCE DIRECTIVE

YOU DO NOT HAVE TO FILL OUT AND SIGN THIS FORM

PART A: IMPORTANT INFORMATION ABOUT THIS ADVANCE DIRECTIVE

      This is an important legal document. It can control critical decisions about your health care. Before signing, consider these important facts:

Facts About Part B

(Appointing a Health Care Representative)

      You have the right to name a person to direct your health care when you cannot do so. This person is called your “health care representative.” You can do this by using Part B of this form. Your representative must accept on Part E of this form.

      You can write in this document any restrictions you want on how your representative will make decisions for you. Your representative must follow your desires as stated in this document or otherwise made known. If your desires are unknown, your representative must try to act in your best interest. Your representative can resign at any time.

Facts About Part C

(Giving Health Care Instructions)

      You also have the right to give instructions for health care providers to follow if you become unable to direct your care. You can do this by using Part C of this form.

Facts About Completing This Form

      This form is valid only if you sign it voluntarily and when you are of sound mind. If you do not want an advance directive, you do not have to sign this form.

      Unless you have limited the duration of this advance directive, it will not expire. If you have set an expiration date, and you become unable to direct your health care before that date, this advance directive will not expire until you are able to make those decisions again.

      You may revoke this document at any time. To do so, notify your representative and your health care provider of the revocation.

      Despite this document, you have the right to decide your own health care as long as you are able to do so.

      If there is anything in this document that you do not understand, ask a lawyer to explain it to you.

      You may sign PART B, PART C, or both parts. You may cross out words that don’t express your wishes or add words that better express your wishes. Witnesses must sign PART D.

      Print your NAME, BIRTHDATE AND ADDRESS here:

 

___________________________

(Name)

 

_______________

(Birthdate)

 

___________________________

___________________________

(Address)

      Unless revoked or suspended, this advance directive will continue for:

 

INITIAL ONE:

            __        My entire life

            __        Other period (__Years)

PART B: APPOINTMENT OF HEALTH CARE REPRESENTATIVE

      I appoint _______________ as my health care representative. My representative’s address is ________ and telephone number is ________.

      I appoint _______________ as my alternate health care representative. My alternate’s address is ________ and telephone number is ________.

      I authorize my representative (or alternate) to direct my health care when I can’t do so.

 

      NOTE: You may not appoint your doctor, an employee of your doctor, or an owner, operator or employee of your health care facility, unless that person is related to you by blood, marriage or adoption or that person was appointed before your admission into the health care facility.

 

1.   Limits. Special Conditions or Instructions:

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

      INITIAL IF THIS APPLIES:

            __        I have executed a Health Care Instruction or Directive to Physicians. My representative is to honor it.

 

2.   Life Support. “Life support” refers to any medical means for maintaining life, including procedures, devices and medications. If you refuse life support, you will still get routine measures to keep you clean and comfortable.

 

      INITIAL IF THIS APPLIES:

            __        My representative MAY decide about life support for me. (If you don’t initial this space, then your representative MAY NOT decide about life support.)

 

3.   Tube Feeding. One sort of life support is food and water supplied artificially by medical device, known as tube feeding.

 

      INITIAL IF THIS APPLIES:

            __        My representative MAY decide about tube feeding for me. (If you don’t initial this space, then your representative MAY NOT decide about tube feeding.)

 

________

(Date)

      SIGN HERE TO APPOINT A HEALTH CARE REPRESENTATIVE

 

___________________________

(Signature of person making appointment)

 

PART C: HEALTH CARE INSTRUCTIONS

 

      NOTE: In filling out these instructions, keep the following in mind:

            •           The term “as my physician recommends” means that you want your physician to try life support if your physician believes it could be helpful and then discontinue it if it is not helping your health condition or symptoms.

 

            •           “Life support” and “tube feeding” are defined in Part B above.

 

            •           If you refuse tube feeding, you should understand that malnutrition, dehydration and death will probably result.

 

            •           You will get care for your comfort and cleanliness, no matter what choices you make.

 

            •           You may either give specific instructions by filling out Items 1 to 4 below, or you may use the general instruction provided by Item 5.

 

      Here are my desires about my health care if my doctor and another knowledgeable doctor confirm that I am in a medical condition described below:

      1.   Close to Death. If I am close to death and life support would only postpone the moment of my death:

 

      A.  INITIAL ONE:

            __        I want to receive tube feeding.

            __        I want tube feeding only as my physician recommends.

            __        I DO NOT WANT tube feeding.

 

      B.  INITIAL ONE:

            __        I want any other life support that may apply.

            __        I want life support only as my physician recommends.

            __        I want NO life support.

      2.   Permanently Unconscious. If I am unconscious and it is very unlikely that I will ever become conscious again:

 

      A.  INITIAL ONE:

            __        I want to receive tube feeding.

            __        I want tube feeding only as my physician recommends.

            __        I DO NOT WANT tube feeding.

 

      B.  INITIAL ONE:

            __        I want any other life support that may apply.

            __        I want life support only as my physician recommends.

            __        I want NO life support.

 

      3.   Advanced Progressive Illness. If I have a progressive illness that will be fatal and is in an advanced stage, and I am consistently and permanently unable to communicate by any means, swallow food and water safely, care for myself and recognize my family and other people, and it is very unlikely that my condition will substantially improve:

 

      A.  INITIAL ONE:

            __        I want to receive tube feeding.

            __        I want tube feeding only as my physician recommends.

            __        I DO NOT WANT tube feeding.

 

      B.  INITIAL ONE:

            __        I want any other life support that may apply.

            __        I want life support only as my physician recommends.

            __        I want NO life support.

 

      4.   Extraordinary Suffering. If life support would not help my medical condition and would make me suffer permanent and severe pain:

 

      A.  INITIAL ONE:

            __        I want to receive tube feeding.

            __        I want tube feeding only as my physician recommends.

            __        I DO NOT WANT tube feeding.

 

      B.  INITIAL ONE:

            __        I want any other life support that may apply.

            __        I want life support only as my physician recommends.

            __        I want NO life support.

 

      5.   General Instruction.

      INITIAL IF THIS APPLIES:

            __        I do not want my life to be prolonged by life support. I also do not want tube feeding as life support. I want my doctors to allow me to die naturally if my doctor and another knowledgeable doctor confirm I am in any of the medical conditions listed in Items 1 to 4 above.

 

      6.   Additional Conditions or Instructions.

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

(Insert description of what you want done.)

 

      7.   Other Documents. A “health care power of attorney” is any document you may have signed to appoint a representative to make health care decisions for you.

 

      INITIAL ONE:

            __        I have previously signed a health care power of attorney. I want it to remain in effect unless I appointed a health care representative after signing the health care power of attorney.

            __        I have a health care power of attorney, and I REVOKE IT.

            __        I DO NOT have a health care power of attorney.

 

_______________

(Date)

      SIGN HERE TO GIVE INSTRUCTIONS

 

___________________________

(Signature)

______________________________________________________________________________PART D: DECLARATION OF WITNESSES

      We declare that the person signing this advance directive:

      (a) Is personally known to us or has provided proof of identity;

      (b) Signed or acknowledged that person’s signature on this advance directive in our presence;

      (c) Appears to be of sound mind and not under duress, fraud or undue influence;

      (d) Has not appointed either of us as health care representative or alternative representative; and

      (e) Is not a patient for whom either of us is attending physician.

Witnessed By:

 

 

___________              ___________ 

(Signature of               (Printed Name

Witness/Date)            of Witness)

 

___________              ___________ 

(Signature of               (Printed Name

Witness/Date              of Witness)

 

      NOTE: One witness must not be a relative (by blood, marriage or adoption) of the person signing this advance directive. That witness must also not be entitled to any portion of the person’s estate upon death. That witness must also not own, operate or be employed at a health care facility where the person is a patient or resident.

______________________________________________________________________________

PART E: ACCEPTANCE BY HEALTH CARE REPRESENTATIVE

      I accept this appointment and agree to serve as health care representative. I understand I must act consistently with the desires of the person I represent, as expressed in this advance directive or otherwise made known to me. If I do not know the desires of the person I represent, I have a duty to act in what I believe in good faith to be that person’s best interest. I understand that this document allows me to decide about that person’s health care only while that person cannot do so. I understand that the person who appointed me may revoke this appointment. If I learn that this document has been suspended or revoked, I will inform the person’s current health care provider if known to me.

 

___________________________

(Signature of Health Care Representative/Date)

 

___________________________

(Printed name)

 

___________________________

(Signature of Alternate Health Care Representative/Date)

 

___________________________

(Printed name)

______________________________________________________________________________ [1993 c.767 §8 (enacted in lieu of 127.530)]

 

(Effect of Executing Advance Directive)

 

      127.535 Authority of health care representative; duties; objection by principal. (1) The health care representative has all the authority over the principal’s health care that the principal would have if not incapable, subject to the limitations of the appointment and ORS 127.540 and 127.580. A health care representative who is known to the health care provider to be available to make health care decisions has priority over any person other than the principal to act for the principal in all health care decisions. A health care representative has authority to make a health care decision for a principal only when the principal is incapable.

      (2) A health care representative is not personally responsible for the cost of health care provided to the principal solely because the health care representative makes health care decisions for the principal.

      (3) Except to the extent the right is limited by the appointment or any federal law, a health care representative for an incapable principal has the same right as the principal to receive information regarding the proposed health care, to receive and review medical records and to consent to the disclosure of medical records. The right of the health care representative to receive this information is not a waiver of any evidentiary privilege or any right to assert confidentiality with respect to others.

      (4) In making health care decisions, the health care representative has a duty to act consistently with the desires of the principal as expressed in the principal’s advance directive, or as otherwise made known by the principal to the health care representative at any time. If the principal’s desires are unknown, the health care representative has a duty to act in what the health care representative in good faith believes to be the best interests of the principal.

      (5) ORS 127.505 to 127.660 do not authorize a health care representative or health care provider to withhold or withdraw life-sustaining procedures or artificially administered nutrition and hydration in any situation if the principal manifests an objection to the health care decision. If the principal objects to such a health care decision, the health care provider shall proceed as though the principal were capable for the purposes of the health care decision objected to.

      (6) An instrument that would be a valid advance directive except that the instrument is not a form described in ORS 127.515, has expired, is not properly witnessed or otherwise fails to meet the formal requirements of ORS 127.505 to 127.660 shall constitute evidence of the patient’s desires and interests.

      (7) A health care representative is a personal representative for the purposes of ORS 192.518 to 192.526 and the federal Health Insurance Portability and Accountability Act privacy regulations, 45 C.F.R. parts 160 and 164. [1989 c.914 §7; 1993 c.767 §9; 2005 c.53 §1]

 

      127.540 Limitations on authority of health care representative. ORS 127.505 to 127.660 and 127.995 do not authorize an appointed health care representative to make a health care decision with respect to any of the following on behalf of the principal:

      (1) Admission to or retention in a health care facility for care or treatment of mental illness.

      (2) Convulsive treatment.

      (3) Psychosurgery.

      (4) Sterilization.

      (5) Abortion.

      (6) Withholding or withdrawing of a life-sustaining procedure unless:

      (a) The appointed health care representative has been given authority to make decisions on withholding or withdrawing life-sustaining procedures; or

      (b) The principal has been medically confirmed to be in one of the following conditions:

      (A) A terminal condition.

      (B) Permanently unconscious.

      (C) A condition in which administration of life-sustaining procedures would not benefit the principal’s medical condition and would cause permanent and severe pain.

      (D) A progressive, debilitating illness that will be fatal and is in its advanced stages, and the principal is consistently and permanently unable to communicate, swallow food and water safely, care for the principal, and recognize the principal’s family and other people, and there is no reasonable chance that the principal’s underlying condition will improve.

      (7) Withholding or withdrawing artificially administered nutrition and hydration, other than hyperalimentation, necessary to sustain life except as provided in ORS 127.580. [1989 c.914 §8; 1993 c.442 §18; 1993 c.767 §10]

 

(Provisions Generally Applicable to Advance Directives and Health Care Decisions)

 

      127.545 Revocation of advance directive or health care decision; when revocation effective; effect of executing power of attorney for health care. (1) An advance directive or a health care decision by a health care representative may:

      (a) If it involves the decision to withhold or withdraw life-sustaining procedures or artificially administered nutrition and hydration, be revoked at any time and in any manner by which the principal is able to communicate the intent to revoke; or

      (b) Be revoked at any time and in any manner by a capable principal.

      (2) Revocation is effective upon communication by the principal to the attending physician or health care provider, or to the health care representative. If the communication is to the health care representative, and the principal is incapable and is under the care of a health care provider known to the representative, the health care representative must promptly inform the attending physician or health care provider of the revocation.

      (3) Upon learning of the revocation, the health care provider or attending physician shall cause the revocation to be made a part of the principal’s medical records.

      (4) Execution of a valid power of attorney for health care revokes any prior power of attorney for health care. Unless the health care instruction provides otherwise, execution of a valid health care instruction revokes any prior health care instruction.

      (5) Unless the advance directive provides otherwise, the directions as to health care decisions in a valid advance directive supersede:

      (a) Any directions contained in a previous court appointment or advance directive; and

      (b) Any prior inconsistent expression of desires with respect to health care decisions.

      (6) Unless the power of attorney for health care provides otherwise, valid appointment of an attorney-in-fact for health care supersedes:

      (a) Any power of a guardian or other person appointed by a court to make health care decisions for the protected person; and

      (b) Any other prior appointment or designation of a health care representative.

      (7) Unless the power of attorney for health care expressly provides otherwise, a power of attorney for health care is suspended:

      (a) If both the attorney-in-fact and the alternative attorney-in-fact have withdrawn; or

      (b) If the power of attorney names the principal’s spouse as attorney-in-fact, a petition for dissolution or annulment of marriage is filed and the principal does not reaffirm the appointment in writing after the filing of the petition.

      (8) If the principal has both a valid health care instruction and a valid power of attorney for health care, and the directions reflected in those documents are inconsistent, the document last executed governs to the extent of the inconsistency.

      (9) Any reinstatement of an advance directive must be in writing. [1989 c.914 §9; 1993 c.571 §26a; 1993 c.767 §12]

 

      127.550 Petition for judicial review of advance directives; scope of review; authority to file petition. (1) A health care decision made by an individual who is authorized to make the decision under ORS 127.505 to 127.660 and 127.995 is effective immediately and does not require judicial approval.

      (2) A petition may be filed under ORS 127.505 to 127.660 and 127.995 for any one or more of the following purposes:

      (a) Determining whether a principal is incapable.

      (b) Determining whether an appointment of the health care representative or a health care instruction is valid or has been suspended, reinstated, revoked or terminated.

      (c) Determining whether the acts or proposed acts of the health care representative breach any duty of the representative and whether those acts should be enjoined.

      (d) Declaring that an individual is authorized to act as a health care representative.

      (e) Disqualifying the health care representative upon a determination of the court that the health care representative has violated, failed to perform or is unable to perform the duties under ORS 127.535 (4).

      (f) Approving any health care decision that by law requires court approval.

      (g) Determining whether the acts or proposed acts of the health care representative are clearly inconsistent with the desires of the principal as made known to the health care representative, or where the desires of the principal are unknown or unclear, whether the acts or proposed acts of the health care representative are clearly contrary to the best interests of the principal.

      (h) Declaring that a power of attorney for health care is revoked upon a determination by the court that the attorney-in-fact has made a health care decision for the principal that authorized anything illegal. A suspension or revocation of a power of attorney under this paragraph shall be in the discretion of the court.

      (i) Considering any other matter that the court determines needs to be decided for the protection of the principal.

      (3) A petition may be filed by any of the following:

      (a) The principal.

      (b) The health care representative.

      (c) The spouse, parent, sibling or adult child of the principal.

      (d) An adult relative or adult friend of the principal who is familiar with the desires of the principal.

      (e) The guardian of the principal.

      (f) The conservator of the principal.

      (g) The attending physician or health care provider of the principal.

      (4) A petition under this section shall be filed in the circuit court in the county in which the principal resides or is located.

      (5) Any of the determinations described in this section may be made by the court as a part of a protective proceeding under ORS chapter 125 if a guardian or temporary guardian has been appointed for the principal, or if the petition seeks the appointment of a guardian or a temporary guardian for the principal. [1989 c.914 §9a; 1993 c.767 §13; 2001 c.396 §2]

 

      127.555 Designation of attending physician; liability of health care representative and health care provider. (1) If there is more than one physician caring for a principal, the principal shall designate one physician as the attending physician. If the principal is incapable, the health care representative for the principal shall designate the attending physician.

      (2) Health care representatives, and persons who are acting under a reasonable belief that they are health care representatives, shall not be guilty of any criminal offense, or subject to civil liability, or in violation of any professional oath, affirmation or standard of care for any action taken in good faith as a health care representative.

      (3) A health care provider acting or declining to act in reliance on the health care decision made in an advance directive, made by an attending physician under ORS 127.635 (3), or made by a person who the provider believes is the health care representative for an incapable principal, is not subject to criminal prosecution, civil liability or professional disciplinary action on the grounds that the health care decision is unauthorized unless the provider:

      (a) Fails to satisfy a duty that ORS 127.505 to 127.660 and 127.995 place on the provider;

      (b) Acts without medical confirmation as required under ORS 127.505 to 127.660 and 127.995;

      (c) Knows or has reason to know that the requirements of ORS 127.505 to 127.660 and 127.995 have not been satisfied; or

      (d) Acts after receiving notice that:

      (A) The authority or decision on which the provider relied is revoked, suspended, superseded or subject to other legal infirmity;

      (B) A court challenge to the health care decision or the authority relied on in making the health care decision is pending; or

      (C) The health care representative has withdrawn or has been disqualified.

      (4) The immunities provided by this section do not apply to:

      (a) The manner of administering health care pursuant to a health care decision made by the health care representative or by a health care instruction; or

      (b) The manner of determining the health condition or incapacity of the principal.

      (5) A health care provider who determines that a principal is incapable is not subject to criminal prosecution, civil liability or professional disciplinary action for failing to follow that principal’s direction except for a failure to follow a principal’s manifestation of an objection to a health care decision under ORS 127.535 (5). [1989 c.914 §10; 1993 c.767 §14]

 

      127.560 Provisions not exclusive; effect of provisions on civil and criminal liability of health care representative and provider. (1) Except as otherwise specifically provided, ORS 127.505 to 127.660 and 127.995 do not impair or supersede the laws of this state relating to:

      (a) Any requirement of notice to others of proposed health care;