2010 Mississippi Code
TITLE 41 - PUBLIC HEALTH
Chapter 41 - Surgical or Medical Procedures; Consents.
41-41-205 - Individual instructions; power of attorney; decisions by primary physician; agents; guardians; validity.
§ 41-41-205. Individual instructions; power of attorney; decisions by primary physician; agents; guardians; validity.
(1) An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.
(2) An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions. Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of a residential long-term health-care institution at which the principal is receiving care. The power must be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one (1) of the following methods:
(a) Be signed by at least two (2) individuals each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgement of the signature or of the instrument, each witness making the following declaration in substance: "I declare under penalty of perjury pursuant to Section 97-9-61, Mississippi Code of 1972, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document, and that I am not a health-care provider, nor an employee of a health-care provider or facility." In addition, the declaration of at least one (1) of the witnesses must include the following: "I am not related to the principal by blood, marriage or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law." (b) Be acknowledged before a notary public at any place within this state, the notary public certifying to the substance of the following:
"State of ______________
County of ______________
On this ________ day of ________, in the year ________, before me, ________ (insert name of notary public) appeared ________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. I declare under the penalty of perjury that the person whose name is subscribed to this instrument appears to be of sound mind and under no duress, fraud or undue influence.
(Signature of Notary Public)"
(3) None of the following may be used as witness for a power of attorney for health care:
(a) A health-care provider;
(b) An employee of a health-care provider or facility; or
(c) The agent.
(4) At least one (1) of the individuals used as a witness for a power of attorney for health care shall be someone who is neither:
(a) A relative of the principal by blood, marriage or adoption; nor
(b) An individual who would be entitled to any portion of the estate of the principal upon his or her death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.
(5) Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.
(6) Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the primary physician.
(7) An agent shall make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.
(8) A health-care decision made by an agent for a principal is effective without judicial approval.
(9) A written advance health-care directive may include the individual's nomination of a guardian of the person.
(10) An advance health-care directive is valid for purposes of Sections 41-41-201 through 41-41-229 if it complies with Sections 41-41-201 through 41-41-229, regardless of when or where executed or communicated.
Sources: Laws, 1998, ch. 542, § 3, eff from and after July 1, 1998.
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