2007 Oregon Code - Chapter 127 :: Chapter 127 - Powers of Attorney - Advance Directives for Health Care - Declarations for Mental Heal h Treatment - Death with Dignity
Chapter 127 —
Powers of Attorney; Advance Directives for Health Care; Declarations for Mental
Heal h Treatment; Death with Dignity
2007 EDITION
POWERS OF ATTORNEY; HEALTH CARE DIRECTIVES
PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY;
TRUSTS
POWERS OF ATTORNEY
127.005Â Â Â Â When
power of attorney in effect; accounting to conservator
127.015Â Â Â Â Power
of attorney not revoked until death known
127.025Â Â Â Â Authority
under power of attorney recognizable regardless of date of execution
127.035Â Â Â Â Limitations
on liability of person reasonably relying on power of attorney
127.045Â Â Â Â Duty
of attorney-in-fact or agent under power of attorney
ADVANCE DIRECTIVES FOR HEALTH CARE
(Definitions)
127.505Â Â Â Â Definitions
for ORS 127.505 to 127.660
(Health Care Decisions Generally)
127.507Â Â Â Â Capable
adults may make own health care decisions
(Formalities of Executing Advance Directive)
127.510Â Â Â Â Designation
of attorney-in-fact; execution of health care instruction; duration
127.515Â Â Â Â Manner
of executing advance directive; forms; witnesses; directives executed out of
state
127.520Â Â Â Â Persons
not eligible to serve as attorney-in-fact; manner of disqualifying persons for
service as attorney-in-fact
127.525Â Â Â Â Acceptance
of appointment; withdrawal
(Form of Advance Directive)
127.531Â Â Â Â Form
of advance directive
(Effect of Executing Advance Directive)
127.535Â Â Â Â Authority
of health care representative; duties; objection by principal
127.540Â Â Â Â Limitations
on authority of health care representative
(Provisions Generally Applicable to Advance
Directives and Health Care Decisions)
127.545Â Â Â Â Revocation
of advance directive or health care decision; when revocation effective; effect
of executing power of attorney for health care
127.550Â Â Â Â Petition
for judicial review of advance directives; scope of review; authority to file
petition
127.555Â Â Â Â Designation
of attending physician; liability of health care representative and health care
provider
127.560Â Â Â Â Provisions
not exclusive; effect of provisions on civil and criminal liability of health
care representative and provider
127.565Â Â Â Â Independent
medical judgment of provider; effect of advance directive on insurance
127.570Â Â Â Â Mercy
killing; suicide
127.575Â Â Â Â Instrument
presumed valid
127.580Â Â Â Â Presumption
of consent to artificially administered nutrition and hydration; exceptions
127.625Â Â Â Â Providers
under no duty to participate in withdrawal or withholding of certain health
care; duty of provider who is unwilling to participate
127.635Â Â Â Â Withdrawal
of life-sustaining procedures; conditions; selection of health care
representative in certain cases; required consultation
127.640Â Â Â Â Physician
to determine that conditions met before withdrawing or withholding certain
health care
127.642Â Â Â Â 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)
127.646Â Â Â Â Definitions
for ORS 127.646 to 127.654
127.649Â Â Â Â Health
care organizations required to have written policies and procedures on
providing information on patientÂ’s right to make health care decisions
127.652Â Â Â Â Time
of providing information
127.654Â Â Â Â Scope
of requirement; limitation on liability for failure to comply
(Previously Executed Advance Directives)
127.658Â Â Â Â Effect
of ORS 127.505 to 127.660 on previously executed advance directives
(Short Title)
127.660Â Â Â Â Short
title
DECLARATIONS FOR MENTAL HEALTH TREATMENT
127.700Â Â Â Â Definitions
for ORS 127.700 to 127.737
127.702Â Â Â Â Persons
who may make declaration for mental health treatment; period of validity
127.703Â Â Â Â Required
policies regarding mental health treatment rights information; declarations for
mental health treatment
127.705Â Â Â Â Designation
of attorney-in-fact for decisions about mental health treatment
127.707Â Â Â Â Execution
of declaration; witnesses
127.710Â Â Â Â Operation
of declaration; physician or provider to act in accordance with declaration
127.712Â Â Â Â Scope
of authority of attorney-in-fact; powers and duties; limitation on liability
127.715Â Â Â Â Prohibitions
against requiring person to execute or refrain from executing declaration
127.717Â Â Â Â Declaration
to be made part of medical record; physician or provider to comply with
declaration; withdrawal of physician or provider
127.720Â Â Â Â Circumstances
in which physician or provider may disregard declaration
127.722Â Â Â Â Revocation
of declaration
127.725Â Â Â Â Limitations
on liability of physician or provider
127.727Â Â Â Â Persons
prohibited from serving as attorney-in-fact
127.730Â Â Â Â Persons
prohibited from serving as witnesses to declaration
127.732Â Â Â Â Withdrawal
of attorney-in-fact; rescission of withdrawal
127.736Â Â Â Â Form
of declaration
127.737Â Â Â Â Certain
other laws applicable to declaration
THE
(General Provisions)
127.800Â Â Â Â Definitions
(Written Request for Medication to End OneÂ’s
Life in a Humane and Dignified Manner)
127.805Â Â Â Â Who
may initiate a written request for medication
127.810Â Â Â Â Form
of the written request
(Safeguards)
127.815Â Â Â Â Attending
physician responsibilities
127.820Â Â Â Â Consulting
physician confirmation
127.825Â Â Â Â Counseling
referral
127.830Â Â Â Â Informed
decision
127.835Â Â Â Â Family
notification
127.840Â Â Â Â Written
and oral requests
127.845Â Â Â Â Right
to rescind request
127.850Â Â Â Â Waiting
periods
127.855Â Â Â Â Medical
record documentation requirements
127.860Â Â Â Â Residency
requirement
127.865Â Â Â Â Reporting
requirements
127.870Â Â Â Â Effect
on construction of wills, contracts and statutes
127.875Â Â Â Â Insurance
or annuity policies
127.880Â Â Â Â Construction
of Act
(Immunities and Liabilities)
127.885Â Â Â Â Immunities;
basis for prohibiting health care provider from participation; notification;
permissible sanctions
127.890Â Â Â Â Liabilities
127.892Â Â Â Â Claims
by governmental entity for costs incurred
(Severability)
127.895Â Â Â Â Severability
(Form of the Request)
127.897Â Â Â Â Form
of the request
PENALTIES
127.995Â Â Â Â 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 principalÂ’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 principalÂ’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 Oregon Medical Board.
     (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 principalÂ’s
medical record when a copy of that instrument is provided to the principalÂ’s
health care provider.
     (6) Notwithstanding subsections (3) and
(4) of this section, an anatomical gift, as defined in ORS 97.953, made on an
advance directive is effective. [1989 c.914 §2; 1993 c.767 §3; 1995 c.717 §13;
2007 c.681 §28]
     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 principalÂ’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 principalÂ’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 principalÂ’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 principalÂ’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
     (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 donÂ’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 representativeÂ’s address is ________ and telephone
number is ________.
     I appoint _______________ as my alternate
health care representative. My alternateÂ’s address is ________ and telephone
number is ________.
     I authorize my representative (or
alternate) to direct my health care when I canÂ’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 donÂ’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 donÂ’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:
___________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ___________
(Signature of                          (Printed
Name
Witness/Date)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â
of Witness)
___________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ___________
(Signature of                          (Printed
Name
Witness/Date)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â
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 personÂ’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
personÂ’s best interest. I understand that this document allows me to decide
about that personÂ’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 personÂ’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 principalÂ’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 principalÂ’s advance directive, or as
otherwise made known by the principal to the health care representative at any
time. If the principalÂ’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
patientÂ’s desires and interests.
     (7) A health care representative is a
personal representative for the purposes of ORS 192.518 to 192.529 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 principalÂ’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 principalÂ’s family and other
people, and there is no reasonable chance that the principalÂ’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 principalÂ’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
principalÂ’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
principalÂ’s direction except for a failure to follow a principalÂ’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;
     (b) The standard of care required of a
health care provider in the administration of health care;
     (c) Whether consent is required for health
care;
     (d) The elements of informed consent for
health care under ORS 677.097 or other law;
     (e) The provision of health care in an
emergency;
     (f) Any right a capable person may have to
consent or withhold consent to health care administered in good faith pursuant
to religious tenets of the individual requiring health care;
     (g) Delegation of authority by a health
care representative;
     (h) Any legal right or responsibility any
person may have to effect the withholding or withdrawal of life-sustaining
procedures including artificially administered nutrition and hydration in any
lawful manner;
     (i) Guardianship or conservatorship
proceedings; or
     (j) Any right persons may otherwise have
to make their own health care decisions, or to make health care decisions for
another.
     (2) The provisions of ORS 127.505 to
127.660 and 127.995 do not in themselves impose civil or criminal liability on
a health care representative or health care provider who withholds or withdraws
or directs the withholding or withdrawal of life-sustaining procedures or
artificially administered nutrition and hydration when a principal is in a
health condition other than those conditions described in ORS 127.540 (6)(b),
127.580 or 127.635 (1). The provisions of ORS 127.505 to 127.660 and 127.995 do
not abolish or limit the civil or criminal liability of a health care
representative under other statutory or common law if the health care
representative withholds or withdraws or directs the withholding or withdrawal
of life-sustaining procedures or artificially administered nutrition and
hydration when a principal is in a health condition other than those conditions
described in ORS 127.540 (6)(b), 127.580 or 127.635 (1). [1989 c.914 §11; 1993
c.767 §15]
     127.565
Independent medical judgment of provider; effect of advance directive on
insurance. (1) In following
a health care instruction or the decision of a health care representative, a
health care provider shall exercise the same independent medical judgment that
the health care provider would exercise in following the decisions of the
principal if the principal were capable.
     (2) No person shall be required either to
execute or to refrain from executing an advance directive as a criterion for
insurance. No health care provider shall condition the provision of health care
or otherwise discriminate against an individual based on whether or not the
individual has executed an advance directive.
     (3) No existing or future policy of
insurance shall be legally impaired or invalidated in any manner by actions
taken under ORS 127.505 to 127.660 and 127.995. No person shall be
discriminated against in premium or contract rates because of the existence or
absence of an advance directive or appointment of a health care representative.
     (4) Nothing in ORS 127.505 to 127.660 and
127.995 is intended to impair or supersede any conflicting federal statute. [1989
c.914 §12; 1993 c.767 §16]
     127.570
Mercy killing; suicide. (1)
Nothing in ORS 127.505 to 127.660 and 127.995 is intended to condone, authorize
or approve mercy killing, or to permit an affirmative or deliberate act or
omission to end life, other than to allow the natural process of dying. In
making a health care decision, a health care representative may not consider an
attempted suicide by the principal as any indication of the principalÂ’s wishes
with regard to health care.
     (2) The withholding or withdrawing of a
life-sustaining procedure or of artificially administered nutrition and
hydration in accordance with the provisions of ORS 127.505 to 127.660 and
127.995 does not, for any purpose, constitute a suicide, assisting a suicide,
mercy killing or assisted homicide. [1989 c.914 §14; 1993 c.767 §17]
     127.575
Instrument presumed valid. A
health care provider has no duty to give effect to any instrument unless the
provider has received a copy of the instrument. Health care providers are
entitled to assume the validity and enforceability of an advance directive if
the directive on its face is in compliance with ORS 127.505 to 127.660 and
127.995, and the provider has not been given notice of a suspension,
reinstatement, revocation, superseding document, disqualification, withdrawal,
dispute or other legal infirmity raising a question as to the validity or
enforceability of the directive. Health care providers are entitled to assume
the validity and enforceability of any other instrument if the provider has not
been given notice of a suspension, reinstatement, revocation, superseding
document, disqualification, withdrawal, dispute or other legal infirmity
raising a question as to the validity or enforceability of the instrument. [1989
c.914 §15; 1993 c.767 §18]
     127.580
Presumption of consent to artificially administered nutrition and hydration;
exceptions. (1) It shall be
presumed that every person who is temporarily or permanently incapable has
consented to artificially administered nutrition and hydration, other than
hyperalimentation, that are necessary to sustain life except in one or more of
the following circumstances:
     (a) The person while a capable adult
clearly and specifically stated that the person would have refused artificially
administered nutrition and hydration.
     (b) Administration of such nutrition and
hydration is not medically feasible or would itself cause severe, intractable
or long-lasting pain.
     (c) The person has an appointed health
care representative who has been given authority to make decisions on the use,
maintenance, withholding or withdrawing of artificially administered nutrition
and hydration.
     (d) The person does not have an appointed
health care representative or an advance directive that clearly states that the
person did not want artificially administered nutrition and hydration, and the person
is permanently unconscious.
     (e) The person does not have an appointed
health care representative or an advance directive that clearly states that the
person did not want artificially administered nutrition and hydration, the
person is incapable, and the person has a terminal condition.
     (f) The person has a progressive illness
that will be fatal and is in an advanced stage, the person is consistently and
permanently unable to communicate by any means, swallow food and water safely,
care for the personÂ’s self and recognize the personÂ’s family and other people,
and it is very unlikely that the personÂ’s condition will substantially improve.
     (2) If a person does not have an appointed
health care representative or an advance directive that clearly states that the
person did not want artificially administered nutrition and hydration, but the
presumption established by this section has been overcome under the provisions
of subsection (1)(a), (b), (d), (e) or (f) of this section, artificially
administered nutrition and hydration may be withheld or withdrawn under the
provisions of ORS 127.635 (2), (3) and (4).
     (3) The medical conditions specified in
subsection (1)(b), (d), (e) and (f) of this section must be medically confirmed
to overcome the presumption established by subsection (1) of this section. [1989
c.914 §16; 1993 c.767 §18a]
     127.585 [1989 c.914 §13; 1993 c.767 §19; renumbered
127.995 in 1993]
     127.605 [Formerly 97.050; 1991 c.470 §12; repealed
by 1993 c.767 §29]
     127.610 [Formerly 97.055; repealed by 1993 c.767 §29]
     127.615 [Formerly 97.060; repealed by 1993 c.767 §29]
     127.620 [Formerly 97.065; repealed by 1993 c.767 §29]
     127.625
Providers under no duty to participate in withdrawal or withholding of certain
health care; duty of provider who is unwilling to participate. (1) No health care provider shall be under
any duty, whether by contract, by statute or by any other legal requirement to
participate in the withdrawal or withholding of life-sustaining procedures or
of artificially administered nutrition or hydration.
     (2) If a health care provider is unable or
unwilling to carry out a health care instruction or the decisions of the health
care representative, the following provisions apply:
     (a) The health care provider shall
promptly notify the health care representative, if there is a health care
representative;
     (b) If the authority or decision of the
health care representative is in dispute, the health care representative or
provider may seek the guidance of the court in the manner provided in ORS
127.550;
     (c) If the representative’s authority or
decision is not in dispute, the representative shall make a reasonable effort
to transfer the principal to the care of another physician or health care
provider; and
     (d) If there is no health care
representative for an incapable patient, and the health care decisions are not
in dispute, the health care provider shall, without abandoning the patient,
either discharge the patient or make a reasonable effort to locate a different
health care provider and authorize the transfer of the patient to that
provider. [Formerly 97.070; 1993 c.767 §20]
     127.630 [Formerly 97.080; repealed by 1993 c.767 §29]
     127.635
Withdrawal of life-sustaining procedures; conditions; selection of health care
representative in certain cases; required consultation. (1) Life-sustaining procedures as defined in
ORS 127.505 which would otherwise be applied to an incapable principal who does
not have an appointed health care representative or applicable valid advance
directive may be withheld or withdrawn in accordance with subsections (2) and
(3) of this section if 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 principalÂ’s medical condition
and would cause permanent and severe pain; or
     (d) The person has a progressive illness
that will be fatal and is in an advanced stage, the person is consistently and
permanently unable to communicate by any means, swallow food and water safely,
care for the personÂ’s self and recognize the personÂ’s family and other people,
and it is very unlikely that the personÂ’s condition will substantially improve.
     (2) If a principal’s condition has been
determined to meet one of the conditions set forth in subsection (1) of this
section, and the principal does not have an appointed health care
representative or applicable advance directive, the principalÂ’s health care
representative shall be the first of the following, in the following order, who
can be located upon reasonable effort by the health care facility and who is
willing to serve as the health care representative:
     (a) A guardian of the principal who is
authorized to make health care decisions, if any;
     (b) The principal’s spouse;
     (c) An adult designated by the others
listed in this subsection who can be so located, if no person listed in this
subsection objects to the designation;
     (d) A majority of the adult children of
the principal who can be so located;
     (e) Either parent of the principal;
     (f) A majority of the adult siblings of
the principal who can be located with reasonable effort; or
     (g) Any adult relative or adult friend.
     (3) If none of the persons described in
subsection (2) of this section is available, then life-sustaining procedures
may be withheld or withdrawn upon the direction and under the supervision of
the attending physician.
     (4) Life-sustaining procedures may be
withheld or withdrawn upon the direction and under the supervision of the
attending physician at the request of a person designated the health care
representative under subsections (2) and (3) of this section only after the
person has consulted with concerned family and close friends, and if the
principal has a case manager, as defined by rules adopted by the Department of
Human Services, after giving notice to the principalÂ’s case manager. [Formerly
97.083; 1993 c.767 §21]
     127.640
Physician to determine that conditions met before withdrawing or withholding
certain health care. Before
withholding or withdrawing life-sustaining procedures or artificially
administered nutrition and hydration under the provisions of ORS 127.540,
127.580 or 127.635, the attending physician shall determine that the conditions
of ORS 127.540, 127.580 and 127.635 have been met. [Formerly 97.084; 1993 c.767
§22]
     127.642
Principal to be provided with certain care to insure comfort and cleanliness. Individuals caring for a principal from whom
life-sustaining procedures or artificially administered nutrition and hydration
are withheld or withdrawn shall provide care to insure comfort and cleanliness,
including but not limited to the following:
     (1) Oral and body hygiene.
     (2) Reasonable efforts to offer food and
fluids orally.
     (3) Medication, positioning, warmth,
appropriate lighting and other measures to relieve pain and suffering.
     (4) Privacy and respect for the dignity
and humanity of the principal. [1993 c.767 §11]
     127.645 [Formerly 97.085; repealed by 1993 c.767 §29]
(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. As used in ORS 127.646 to 127.654:
     (1) “Health care organization” means a home
health agency, hospice program, hospital, long term care facility or health
maintenance organization.
     (2) “Health maintenance organization” has
the meaning given that term in ORS 750.005, except that “health maintenance
organization” includes only those organizations that participate in the federal
Medicare or Medicaid programs.
     (3) “Home health agency” has the meaning
given that term in ORS 443.005.
     (4) “Hospice program” has the meaning
given that term in ORS 443.850.
     (5) “Hospital” has the meaning given that
term in ORS 442.015 (19), except that “hospital” does not include a special
inpatient care facility.
     (6) “Long term care facility” has the
meaning given that term in ORS 442.015, except that “long term care facility”
does not include an intermediate care facility for individuals with mental
retardation. [1991 c.761 §1; 2001 c.104 §38]
     127.649
Health care organizations required to have written policies and procedures on
providing information on patientÂ’s right to make health care decisions. (1) Subject to the provisions of ORS 127.652
and 127.654, all health care organizations shall maintain written policies and
procedures, applicable to all capable adults who are receiving health care by
or through the health care organization, that provide for:
     (a) Delivering to those individuals the
following information and materials, in written form, without recommendation:
     (A) Information on the rights of the
individual under
     (B) Information on the policies of the
health care organization with respect to the implementation of the rights of
the individual under
     (C) A copy of the advance directive set
forth in ORS 127.531, along with a disclaimer on the first line of the first
page of each form in at least 16-point boldfaced type stating “You do not have
to fill out and sign this form.”; and
     (D) The name of a person who can provide
additional information concerning the forms for advance directives.
     (b) Documenting in a prominent place in
the individualÂ’s medical record whether the individual has executed an advance
directive.
     (c) Ensuring compliance by the health care
organization with
     (d) Educating the staff and the community
on issues relating to advance directives.
     (2) A health care organization need not
furnish a copy of an advance directive to an individual if the health care
organization has reason to believe that the individual has received a copy of
an advance directive in the form set forth in ORS 127.531 within the preceding
12-month period or has previously executed an advance directive. [1991 c.761 §2;
1993 c.767 §26]
     127.650 [Formerly 97.090; repealed by 1993 c.767 §29]
     127.652
Time of providing information.
The written information described in ORS 127.649 (1) shall be provided:
     (1) By hospitals, not later than five days
after an individual is admitted as an inpatient, but in any event before
discharge;
     (2) By long term care facilities, not
later than five days after an individual is admitted as a resident, but in any
event before discharge;
     (3) By a home health agency or a hospice
program, not later than 15 days after the initial provision of care by the
agency or program but in any event before ceasing to provide care; and
     (4) By a health maintenance organization,
not later than the time allowed under federal law. [1991 c.761 §3]
     127.654
Scope of requirement; limitation on liability for failure to comply. (1) The requirements of ORS 127.646 to
127.654 are in addition to any requirements that may be imposed under federal
law, but ORS 127.646 to 127.654 shall be interpreted in a fashion consistent with
the Patient Self-Determination Act, enacted by sections 4206 and 4751 of Public
Law 101-508. Nothing in ORS 127.646 to 127.654 requires any health care
organization, or any employee or agent of a health care organization, to act in
a manner inconsistent with federal law or contrary to individual religious or
philosophical beliefs.
     (2) No health care organization shall be
subject to criminal prosecution or civil liability for failure to comply with
ORS 127.646 to 127.654. [1991 c.761 §4]
(Previously Executed
Advance Directives)
     127.658
Effect of ORS 127.505 to 127.660 on previously executed advance directives. (1) ORS 127.505 to 127.660 and 127.995 do
not impair or supersede any power of attorney for health care, directive to
physicians or health care instruction in effect before November 4, 1993.
     (2) Any power of attorney for health care
or directive to physicians executed before November 4, 1993, shall be governed
by the provisions of ORS 127.505 to 127.660 and 127.995, except that:
     (a) The directive to physicians or power
of attorney for health care shall be valid if it complies with the provisions
of either ORS 127.505 to 127.660 and 127.995 or the statutes in effect as of
the date of execution;
     (b) The terms in a directive to physicians
in the form prescribed by ORS 127.610 (1991 Edition) or predecessor
statute have those meanings given in ORS 127.605 (1991 Edition) or predecessor
statute in effect at the time of execution; and
     (c) The terms in a power of attorney for
health care in the form prescribed by ORS 127.530 (1991 Edition) have
those meanings given in ORS 127.505 in effect at the time of execution.
     (3) A health care organization, as defined
in ORS 127.646, that on November 4, 1993, has printed materials with the
information and forms which were required by ORS 127.649, prior to November 4,
1993, may use such printed materials until December 1, 1993. [1993 c.767 §23]
(Short Title)
     127.660
Short title. ORS 127.505 to
127.660 and 127.995 may be cited as the Oregon Health Care Decisions Act. [1993
c.767 §24]
DECLARATIONS FOR
MENTAL HEALTH TREATMENT
     127.700
Definitions for ORS 127.700 to 127.737. As used in ORS 127.700 to 127.737:
     (1) “Attending physician” shall have the
same meaning as provided in ORS 127.505.
     (2) “Attorney-in-fact” means an adult
validly appointed under ORS 127.540, 127.700 to 127.737 and 426.385 to make
mental health treatment decisions for a principal under a declaration for
mental health treatment and also means an alternative attorney-in-fact.
     (3) “Declaration” means a document making
a declaration of preferences or instructions regarding mental health treatment.
     (4) “Health care facility” shall have the
same meaning as provided in ORS 127.505.
     (5) “Incapable” means that, in the opinion
of the court in a protective proceeding under ORS chapter 125, or the opinion
of two physicians, a personÂ’s ability to receive and evaluate information
effectively or communicate decisions is impaired to such an extent that the
person currently lacks the capacity to make mental health treatment decisions.
     (6) “Mental health treatment” means
convulsive treatment, treatment of mental illness with psychoactive medication,
admission to and retention in a health care facility for a period not to exceed
17 days for care or treatment of mental illness, and outpatient services.
     (7) “Outpatient services” means treatment
for a mental or emotional disorder that is obtained by appointment and is
provided by an outpatient service as defined in ORS 430.010.
     (8) “Provider” means a mental health treatment
provider.
     (9) “Representative” means “attorney-in-fact”
as defined in this section. [1993 c.442 §1; 1995 c.664 §88; 1997 c.563 §1; 1999
c.83 §1; 2001 c.104 §39]
     127.702
Persons who may make declaration for mental health treatment; period of validity. (1) An adult of sound mind may make a
declaration of preferences or instructions regarding mental health treatment.
The preferences or instructions may include consent to or refusal of mental
health treatment.
     (2) A declaration for mental health treatment
continues in effect for a period of three years or until revoked. The authority
of a named attorney-in-fact and any alternative attorney-in-fact named in the
declaration continues in effect as long as the declaration appointing the
attorney-in-fact is in effect or until the attorney-in-fact has withdrawn. If a
declaration for mental health treatment has been invoked and is in effect at
the expiration of three years after its execution, the declaration remains
effective until the principal is no longer incapable. [1993 c.442 §2]
     127.703
Required policies regarding mental health treatment rights information;
declarations for mental health treatment. (1) All health care and mental health care organizations shall
maintain written policies and procedures, applicable to all capable adults who
are receiving mental health treatment by or through the organization, that
provide for:
     (a) Delivering to those individuals the
following information and materials, in written form, without recommendation:
     (A) Information on the rights of the
individual under
     (B) Information on the policies of the
organization with respect to implementation of the rights of the individual
under
     (C) A copy of the declaration for mental
health treatment set forth in ORS 127.736; and
     (D) The name of a person who can provide
additional information concerning the forms for declarations for mental health
treatment.
     (b) Documenting in a prominent place in
the individualÂ’s medical record whether the individual has executed a
declaration for mental health treatment.
     (c) Ensuring compliance by the
organization with
     (d) Educating the staff and the community
on issues relating to declarations for mental health treatment.
     (2) An organization need not furnish a
copy of a declaration for mental health treatment to an individual if the
organization has reason to believe that the individual has received a copy of a
declaration in the form set forth in ORS 127.736 within the preceding 12-month
period or has a validly executed declaration.
     (3) The requirements of this section are
in addition to any requirements that may be imposed under federal law and shall
be interpreted in a manner consistent with federal law. Nothing in this section
requires any health care or mental health care organization, or any employee or
agent of an organization, to act in a manner inconsistent with federal law or
contrary to individual religious or philosophical beliefs.
     (4) No health care or mental health care
organization shall be subject to criminal prosecution or civil liability for
failure to comply with this section.
     (5) For purposes of this section, “health
care or mental health care organization” means a health care organization as
defined in ORS 127.646 or a community mental health program or facility that
provides mental health services. [1997 c.563 §5]
     127.705
Designation of attorney-in-fact for decisions about mental health treatment. A declaration may designate a competent
adult to act as attorney-in-fact to make decisions about mental health
treatment. An alternative attorney-in-fact may also be designated to act as
attorney-in-fact if the original designee is unable or unwilling to act at any
time. An attorney-in-fact who has accepted the appointment in writing may make
decisions about mental health treatment on behalf of the principal only when
the principal is incapable. The decisions must be consistent with any desires
the principal has expressed in the declaration. [1993 c.442 §3]
     127.707
Execution of declaration; witnesses. A declaration is effective only if it is signed by the principal and
two competent adult witnesses. The witnesses must attest that the principal is
known to them, signed the declaration in their presence and appears to be of
sound mind and not under duress, fraud or undue influence. Persons specified in
ORS 127.730 may not act as witnesses. [1993 c.442 §4]
     127.710
Operation of declaration; physician or provider to act in accordance with
declaration. A declaration
becomes operative when it is delivered to the principalÂ’s physician or other
mental health treatment provider and remains valid until revoked or expired.
The physician or provider shall act in accordance with an operative declaration
when the principal has been found to be incapable. The physician or provider
shall continue to obtain the principalÂ’s informed consent to all mental health
treatment decisions if the principal is capable of providing informed consent
or refusal. [1993 c.442 §5]
     127.712
Scope of authority of attorney-in-fact; powers and duties; limitation on
liability. (1) The
attorney-in-fact does not have authority to make mental health treatment
decisions unless the principal is incapable.
     (2) The attorney-in-fact is not, as a
result of acting in that capacity, personally liable for the cost of treatment
provided to the principal.
     (3) Except to the extent the right is
limited by the declaration or any federal law, an attorney-in-fact has the same
right as the principal to receive information regarding the proposed mental
health treatment and to receive, review and consent to disclosure of medical
records relating to that treatment. This right of access does not waive any
evidentiary privilege.
     (4) In exercising authority under the
declaration, the attorney-in-fact has a duty to act consistently with the
desires of the principal as expressed in the declaration. If the principalÂ’s
desires are not expressed in the declaration and not otherwise known by the
attorney-in-fact, the attorney-in-fact has a duty to act in what the
attorney-in-fact in good faith believes to be the best interests of the
principal.
     (5) An attorney-in-fact is not subject to
criminal prosecution, civil liability or professional disciplinary action for
any action taken in good faith pursuant to a declaration for mental health
treatment. [1993 c.442 §6]
     127.715
Prohibitions against requiring person to execute or refrain from executing
declaration. A person shall
not be required to execute or to refrain from executing a declaration as a criterion
for insurance, as a condition for receiving mental or physical health services
or as a condition of discharge from a health care facility. [1993 c.442 §7]
     127.717
Declaration to be made part of medical record; physician or provider to comply
with declaration; withdrawal of physician or provider. Upon being presented with a declaration, a
physician or other provider shall make the declaration a part of the principalÂ’s
medical record. When acting under authority of a declaration, a physician or
provider must comply with it to the fullest extent possible, consistent with
reasonable medical practice, the availability of treatments requested and
applicable law. If the physician or other provider is unable or unwilling at
any time to carry out preferences or instructions contained in a declaration or
the decisions of the attorney-in-fact, the physician or provider may withdraw
from providing treatment if withdrawal is consistent with the exercise of
independent medical judgment that is in the best interest of the principal.
Upon withdrawing, a physician or provider shall promptly notify the principal
and the attorney-in-fact and document the notification in the principalÂ’s
medical record. [1993 c.442 §8; 1999 c.83 §2]
     127.720
Circumstances in which physician or provider may disregard declaration. (1) The physician or provider may subject
the principal to mental health treatment in a manner contrary to the principalÂ’s
wishes as expressed in a declaration for mental health treatment only:
     (a) If the principal is committed to the
Department of Human Services pursuant to ORS 426.005 to 426.390 and treatment
is authorized in compliance with ORS 426.385 (3) and administrative rule; or
     (b) In cases of emergency endangering life
or health.
     (2) A declaration does not limit any
authority provided in ORS 426.005 to 426.390 either to take a person into
custody, or to admit, retain or treat a person in a health care facility. [1993
c.442 §9; 1995 c.141 §2]
     127.722
Revocation of declaration. A
declaration may be revoked in whole or in part at any time by the principal if
the principal is not incapable. A revocation is effective when a capable
principal communicates the revocation to the attending physician or other
provider. The attending physician or other provider shall note the revocation
as part of the principal’s medical record. [1993 c.442 §10]
     127.725
Limitations on liability of physician or provider. A physician or provider who administers or
does not administer mental health treatment according to and in good faith
reliance upon the validity of a declaration is not subject to criminal
prosecution, civil liability or professional disciplinary action resulting from
a subsequent finding of a declaration’s invalidity. [1993 c.442 §11]
     127.727
Persons prohibited from serving as attorney-in-fact. None of the following may serve as
attorney-in-fact:
     (1) The attending physician or mental
health service provider or an employee of the physician or provider, if the
physician, provider or employee is unrelated to the principal by blood,
marriage or adoption.
     (2) An owner, operator or employee of a
health care facility in which the principal is a patient or resident, if the
owner, operator or employee is unrelated to the principal by blood, marriage or
adoption. [1993 c.442 §12]
     127.730
Persons prohibited from serving as witnesses to declaration. None of the following may serve as a witness
to the signing of a declaration:
     (1) The attending physician or mental
health service provider or a relative of the physician or provider;
     (2) An owner, operator or relative of an
owner or operator of a health care facility in which the principal is a patient
or resident; or
     (3) A person related to the principal by
blood, marriage or adoption. [1993 c.442 §13]
     127.732
Withdrawal of attorney-in-fact; rescission of withdrawal. (1) An attorney-in-fact may withdraw by
giving notice to the principal. If a principal is incapable, the
attorney-in-fact may withdraw by giving notice to the attending physician or
provider. The attending physician or provider shall note the withdrawal as part
of the principalÂ’s medical record.
     (2) A person who has withdrawn under the
provisions of subsection (1) of this section may rescind the withdrawal by
executing an acceptance after the date of the withdrawal. The acceptance must
be in the same form as provided by ORS 127.736 for accepting an appointment. A
person who rescinds a withdrawal must give notice to the principal if the
principal is capable or to the principalÂ’s health care provider if the principal
is incapable. [1993 c.442 §14]
     127.735 [1993 c.442 §15; repealed by 1997 c.563 §2
(127.736 enacted in lieu of 127.735)]
     127.736
Form of declaration. A
declaration for mental health treatment shall be in substantially the following
form:
______________________________________________________________________________
DECLARATION FOR MENTAL HEALTH TREATMENT
     I, ___________________, being an adult of
sound mind, willfully and voluntarily make this declaration for mental health
treatment. I want this declaration to be followed if a court or two physicians
determine that I am unable to make decisions for myself because my ability to
receive and evaluate information effectively or communicate decisions is
impaired to such an extent that I lack the capacity to refuse or consent to
mental health treatment. “Mental health treatment” means treatment of mental
illness with psychoactive medication, admission to and retention in a health
care facility for a period up to 17 days, convulsive treatment and outpatient
services that are specified in this declaration.
______________________________________________________________________________
CHOICE OF DECISION MAKER
     If I become incapable of giving or
withholding informed consent for mental health treatment, I want these
decisions to be made by: (INITIAL ONLY ONE)
     __ My appointed representative consistent with my desires, or, if my
desires are unknown by my representative, in what my representative believes to
be my best interests.
     __ By the mental health treatment provider who requires my consent in
order to treat me, but only as specifically authorized in this declaration.
APPOINTED REPRESENTATIVE
     If I have chosen to appoint a
representative to make mental health treatment decisions for me when I am
incapable, I am naming that person here. I may also name an alternate
representative to serve. Each person I appoint must accept my appointment in
order to serve. I understand that I am not required to appoint a representative
in order to complete this declaration.
     I hereby appoint:
     NAME _________
     ADDRESS _________
     TELEPHONE # _________ to act as my
representative to make decisions regarding my mental health treatment if I
become incapable of giving or withholding informed consent for that treatment.
(OPTIONAL)
     If the person named above refuses or is
unable to act on my behalf, or if I revoke that personÂ’s authority to act as my
representative, I authorize the following person to act as my representative:
     NAME _________
     ADDRESS _________
     TELEPHONE # _________
     My representative is authorized to make
decisions that are consistent with the wishes I have expressed in this
declaration or, if not expressed, as are otherwise known to my representative.
If my desires are not expressed and are not otherwise known by my representative,
my representative is to act in what he or she believes to be my best interests.
My representative is also authorized to receive information regarding proposed
mental health treatment and to receive, review and consent to disclosure of
medical records relating to that treatment.
______________________________________________________________________________
DIRECTIONS FOR
MENTAL HEALTH TREATMENT
     This declaration permits me to state my
wishes regarding mental health treatments including psychoactive medications,
admission to and retention in a health care facility for mental health
treatment for a period not to exceed 17 days, convulsive treatment and
outpatient services.
     If I become incapable of giving or
withholding informed consent for mental health treatment, my wishes are: I
CONSENT TO THE FOLLOWING MENTAL HEALTH TREATMENTS: (May include types and
dosage of medications, short-term inpatient treatment, a preferred provider or
facility, transport to a provider or facility, convulsive treatment or
alternative outpatient treatments.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
I DO NOT CONSENT
TO THE FOLLOWING MENTAL HEALTH TREATMENT: (Consider including your reasons,
such as past adverse reaction, allergies or misdiagnosis. Be aware that a
person may be treated without consent if the person is held pursuant to civil
commitment law.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
ADDITIONAL
INFORMATION ABOUT MY MENTAL HEALTH TREATMENT NEEDS: (Consider including mental
or physical health history, dietary requirements, religious concerns, people to
notify and other matters of importance.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
YOU MUST SIGN HERE
FOR THIS DECLARATION TO BE EFFECTIVE:
     ______________________
     (Signature/Date)
AFFIRMATION OF WITNESSES
     I affirm that the person signing this
declaration:
     (a) Is personally known to me;
     (b) Signed or acknowledged his or her
signature on this declaration in my presence;
     (c) Appears to be of sound mind and not
under duress, fraud or undue influence;
     (d) Is not related to me by blood,
marriage or adoption;
     (e) Is not a patient or resident in a
facility that I or my relative owns or operates;
     (f) Is not my patient and does not receive
mental health services from me or my relative; and
     (g) Has not appointed me as a
representative in this document.
Witnessed by:
______________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
(Signature of
Witness/Â Â Â Â Â Â Â Â Â Â Â (Printed Name of
Witness)
Date)
______________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
(Signature of
Witness/Â Â Â Â Â Â Â Â Â Â Â (Printed Name of
Witness)
Date)
ACCEPTANCE OF APPOINTMENT
AS REPRESENTATIVE
     I accept this appointment and agree to
serve as representative to make mental health treatment decisions. I understand
that I must act consistently with the desires of the person I represent, as
expressed in this declaration or, if not expressed, as otherwise known by 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 personÂ’s best interest. I understand
that this document gives me authority to make decisions about mental health
treatment only while that person has been determined to be incapable of making
those decisions by a court or two physicians. I understand that the person who
appointed me may revoke this declaration in whole or in part by communicating
the revocation to the attending physician or other provider when the person is
not incapable.
______________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
(Signature of                          (Printed name)
Representative/Date)
______________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
(Signature of
Alternate          (Printed name)
Representative/Date)
NOTICE TO PERSON
MAKING A DECLARATION FOR
MENTAL HEALTH TREATMENT
     This is an important legal document. It
creates a declaration for mental health treatment. Before signing this
document, you should know these important facts:
     This document allows you to make decisions
in advance about certain types of mental health treatment: psychoactive
medication, short-term (not to exceed 17 days) admission to a treatment
facility, convulsive treatment and outpatient services. Outpatient services are
mental health services provided by appointment by licensed professionals and
programs. The instructions that you include in this declaration will be
followed only if a court or two physicians believe that you are incapable of
making treatment decisions. Otherwise, you will be considered capable to give
or withhold consent for the treatments. Your instructions may be overridden if
you are being held pursuant to civil commitment law.
     You may also appoint a person as your
representative to make treatment decisions for you if you become incapable. The
person you appoint has a duty to act consistently with your desires as stated
in this document or, if not stated, as otherwise known by the representative.
If your representative does not know your desires, he or she must make
decisions in your best interests. For the appointment to be effective, the
person you appoint must accept the appointment in writing. The person also has
the right to withdraw from acting as your representative at any time. A “representative”
is also referred to as an “attorney-in-fact” in state law but this person does
not need to be an attorney at law.
     This document will continue in effect for
a period of three years unless you become incapable of participating in mental
health treatment decisions. If this occurs, the directive will continue in
effect until you are no longer incapable.
     You have the right to revoke this document
in whole or in part at any time you have not been determined to be incapable.
YOU MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED INCAPABLE BY
     If there is anything in this document that
you do not understand, you should ask a lawyer to explain it to you. This declaration
will not be valid unless it is signed by two qualified witnesses who are
personally known to you and who are present when you sign or acknowledge your
signature.
NOTICE TO PHYSICIAN OR PROVIDER
     Under
______________________________________________________________________________
[1997 c.563 §3
(enacted in lieu of 127.735)]
     127.737
Certain other laws applicable to declaration. (1) ORS 127.525, 127.550, 127.565, 127.570, 127.575 and 127.995 apply
to a declaration for mental health treatment.
     (2) For purposes of this section only, a
declaration shall be considered a power of attorney for health care, without
regard to whether the declaration appoints an attorney-in-fact. [1993 c.442 §17]
THE
(General
Provisions)
(Section 1)
     Note: The division headings, subdivision headings
and leadlines for 127.800 to 127.890, 127.895 and 127.897 were enacted as part
of Ballot Measure 16 (1994) and were not provided by Legislative Counsel.
     127.800
§1.01. Definitions. The
following words and phrases, whenever used in ORS 127.800 to 127.897, have the
following meanings:
     (1) “Adult” means an individual who is 18
years of age or older.
     (2) “Attending physician” means the
physician who has primary responsibility for the care of the patient and
treatment of the patientÂ’s terminal disease.
     (3) “Capable” means that in the opinion of
a court or in the opinion of the patientÂ’s attending physician or consulting
physician, psychiatrist or psychologist, a patient has the ability to make and
communicate health care decisions to health care providers, including
communication through persons familiar with the patientÂ’s manner of
communicating if those persons are available.
     (4) “Consulting physician” means a
physician who is qualified by specialty or experience to make a professional
diagnosis and prognosis regarding the patientÂ’s disease.
     (5) “Counseling” means one or more
consultations as necessary between a state licensed psychiatrist or
psychologist and a patient for the purpose of determining that the patient is
capable and not suffering from a psychiatric or psychological disorder or
depression causing impaired judgment.
     (6) “Health care provider” means a person
licensed, certified or otherwise authorized or permitted by the law of this
state to administer health care or dispense medication in the ordinary course
of business or practice of a profession, and includes a health care facility.
     (7) “Informed decision” means a decision
by a qualified patient, to request and obtain a prescription to end his or her
life in a humane and dignified manner, that is based on an appreciation of the
relevant facts and after being fully informed by the attending physician of:
     (a) His or her medical diagnosis;
     (b) His or her prognosis;
     (c) The potential risks associated with
taking the medication to be prescribed;
     (d) The probable result of taking the
medication to be prescribed; and
     (e) The feasible alternatives, including,
but not limited to, comfort care, hospice care and pain control.
     (8) “Medically confirmed” means the
medical opinion of the attending physician has been confirmed by a consulting
physician who has examined the patient and the patientÂ’s relevant medical
records.
     (9) “Patient” means a person who is under
the care of a physician.
     (10) “Physician” means a doctor of
medicine or osteopathy licensed to practice medicine by the Oregon Medical
Board.
     (11) “Qualified patient” means a capable
adult who is a resident of
     (12) “Terminal disease” means an incurable
and irreversible disease that has been medically confirmed and will, within
reasonable medical judgment, produce death within six months. [1995 c.3 §1.01;
1999 c.423 §1]
(Written Request
for Medication to End OneÂ’s Life in a Humane and Dignified Manner)
(Section 2)
     127.805
§2.01. Who may initiate a written request for medication. (1) An adult who is capable, is a resident
of Oregon, and has been determined by the attending physician and consulting
physician to be suffering from a terminal disease, and who has voluntarily
expressed his or her wish to die, may make a written request for medication for
the purpose of ending his or her life in a humane and dignified manner in
accordance with ORS 127.800 to 127.897.
     (2) No person shall qualify under the
provisions of ORS 127.800 to 127.897 solely because of age or disability. [1995
c.3 §2.01; 1999 c.423 §2]
     127.810
§2.02. Form of the written request. (1) A valid request for medication under ORS 127.800 to 127.897 shall
be in substantially the form described in ORS 127.897, signed and dated by the
patient and witnessed by at least two individuals who, in the presence of the
patient, attest that to the best of their knowledge and belief the patient is
capable, acting voluntarily, and is not being coerced to sign the request.
     (2) One of the witnesses shall be a person
who is not:
     (a) A relative of the patient by blood,
marriage or adoption;
     (b) A person who at the time the request
is signed would be entitled to any portion of the estate of the qualified
patient upon death under any will or by operation of law; or
     (c) An owner, operator or employee of a
health care facility where the qualified patient is receiving medical treatment
or is a resident.
     (3) The patient’s attending physician at
the time the request is signed shall not be a witness.
     (4) If the patient is a patient in a long
term care facility at the time the written request is made, one of the
witnesses shall be an individual designated by the facility and having the
qualifications specified by the Department of Human Services by rule. [1995 c.3
§2.02]
(Safeguards)
(Section 3)
     127.815
§3.01. Attending physician responsibilities. (1) The attending physician shall:
     (a) Make the initial determination of
whether a patient has a terminal disease, is capable, and has made the request
voluntarily;
     (b) Request that the patient demonstrate
     (c) To ensure that the patient is making
an informed decision, inform the patient of:
     (A) His or her medical diagnosis;
     (B) His or her prognosis;
     (C) The potential risks associated with
taking the medication to be prescribed;
     (D) The probable result of taking the
medication to be prescribed; and
     (E) The feasible alternatives, including,
but not limited to, comfort care, hospice care and pain control;
     (d) Refer the patient to a consulting
physician for medical confirmation of the diagnosis, and for a determination
that the patient is capable and acting voluntarily;
     (e) Refer the patient for counseling if
appropriate pursuant to ORS 127.825;
     (f) Recommend that the patient notify next
of kin;
     (g) Counsel the patient about the
importance of having another person present when the patient takes the
medication prescribed pursuant to ORS 127.800 to 127.897 and of not taking the
medication in a public place;
     (h) Inform the patient that he or she has
an opportunity to rescind the request at any time and in any manner, and offer
the patient an opportunity to rescind at the end of the 15 day waiting period
pursuant to ORS 127.840;
     (i) Verify, immediately prior to writing
the prescription for medication under ORS 127.800 to 127.897, that the patient
is making an informed decision;
     (j) Fulfill the medical record
documentation requirements of ORS 127.855;
     (k) Ensure that all appropriate steps are
carried out in accordance with ORS 127.800 to 127.897 prior to writing a
prescription for medication to enable a qualified patient to end his or her
life in a humane and dignified manner; and
     (L)(A) Dispense medications directly,
including ancillary medications intended to facilitate the desired effect to
minimize the patientÂ’s discomfort, provided the attending physician is
registered as a dispensing physician with the Oregon Medical Board, has a
current Drug Enforcement Administration certificate and complies with any
applicable administrative rule; or
     (B) With the patient’s written consent:
     (i) Contact a pharmacist and inform the
pharmacist of the prescription; and
     (ii) Deliver the written prescription
personally or by mail to the pharmacist, who will dispense the medications to
either the patient, the attending physician or an expressly identified agent of
the patient.
     (2) Notwithstanding any other provision of
law, the attending physician may sign the patientÂ’s death certificate. [1995
c.3 §3.01; 1999 c.423 §3]
     127.820
§3.02. Consulting physician confirmation. Before a patient is qualified under ORS 127.800 to 127.897, a
consulting physician shall examine the patient and his or her relevant medical
records and confirm, in writing, the attending physicianÂ’s diagnosis that the
patient is suffering from a terminal disease, and verify that the patient is capable,
is acting voluntarily and has made an informed decision. [1995 c.3 §3.02]
     127.825
§3.03. Counseling referral.
If in the opinion of the attending physician or the consulting physician a
patient may be suffering from a psychiatric or psychological disorder or
depression causing impaired judgment, either physician shall refer the patient
for counseling. No medication to end a patientÂ’s life in a humane and dignified
manner shall be prescribed until the person performing the counseling
determines that the patient is not suffering from a psychiatric or
psychological disorder or depression causing impaired judgment. [1995 c.3 §3.03;
1999 c.423 §4]
     127.830
§3.04. Informed decision. No
person shall receive a prescription for medication to end his or her life in a
humane and dignified manner unless he or she has made an informed decision as
defined in ORS 127.800 (7). Immediately prior to writing a prescription for
medication under ORS 127.800 to 127.897, the attending physician shall verify
that the patient is making an informed decision. [1995 c.3 §3.04]
     127.835
§3.05. Family notification.
The attending physician shall recommend that the patient notify the next of kin
of his or her request for medication pursuant to ORS 127.800 to 127.897. A
patient who declines or is unable to notify next of kin shall not have his or
her request denied for that reason. [1995 c.3 §3.05; 1999 c.423 §6]
     127.840
§3.06. Written and oral requests. In order to receive a prescription for medication to end his or her
life in a humane and dignified manner, a qualified patient shall have made an
oral request and a written request, and reiterate the oral request to his or
her attending physician no less than fifteen (15) days after making the initial
oral request. At the time the qualified patient makes his or her second oral
request, the attending physician shall offer the patient an opportunity to
rescind the request. [1995 c.3 §3.06]
     127.845
§3.07. Right to rescind request. A patient may rescind his or her request at any time and in any manner
without regard to his or her mental state. No prescription for medication under
ORS 127.800 to 127.897 may be written without the attending physician offering
the qualified patient an opportunity to rescind the request. [1995 c.3 §3.07]
     127.850
§3.08. Waiting periods. No
less than fifteen (15) days shall elapse between the patientÂ’s initial oral
request and the writing of a prescription under ORS 127.800 to 127.897. No less
than 48 hours shall elapse between the patientÂ’s written request and the
writing of a prescription under ORS 127.800 to 127.897. [1995 c.3 §3.08]
     127.855
§3.09. Medical record documentation requirements. The following shall be documented or filed
in the patientÂ’s medical record:
     (1) All oral requests by a patient for
medication to end his or her life in a humane and dignified manner;
     (2) All written requests by a patient for
medication to end his or her life in a humane and dignified manner;
     (3) The attending physician’s diagnosis
and prognosis, determination that the patient is capable, acting voluntarily
and has made an informed decision;
     (4) The consulting physician’s diagnosis
and prognosis, and verification that the patient is capable, acting voluntarily
and has made an informed decision;
     (5) A report of the outcome and
determinations made during counseling, if performed;
     (6) The attending physician’s offer to the
patient to rescind his or her request at the time of the patientÂ’s second oral
request pursuant to ORS 127.840; and
     (7) A note by the attending physician
indicating that all requirements under ORS 127.800 to 127.897 have been met and
indicating the steps taken to carry out the request, including a notation of
the medication prescribed. [1995 c.3 §3.09]
     127.860
§3.10. Residency requirement.
Only requests made by
     (1) Possession of an
     (2) Registration to vote in
     (3) Evidence that the person owns or
leases property in
     (4) Filing of an
     127.865
§3.11. Reporting requirements.
(1)(a) The Department of Human Services shall annually review a sample of records
maintained pursuant to ORS 127.800 to 127.897.
     (b) The department shall require any
health care provider upon dispensing medication pursuant to ORS 127.800 to
127.897 to file a copy of the dispensing record with the department.
     (2) The department shall make rules to
facilitate the collection of information regarding compliance with ORS 127.800
to 127.897. Except as otherwise required by law, the information collected
shall not be a public record and may not be made available for inspection by the
public.
     (3) The department shall generate and make
available to the public an annual statistical report of information collected
under subsection (2) of this section. [1995 c.3 §3.11; 1999 c.423 §9; 2001
c.104 §40]
     127.870
§3.12. Effect on construction of wills, contracts and statutes. (1) No provision in a contract, will or
other agreement, whether written or oral, to the extent the provision would
affect whether a person may make or rescind a request for medication to end his
or her life in a humane and dignified manner, shall be valid.
     (2) No obligation owing under any
currently existing contract shall be conditioned or affected by the making or
rescinding of a request, by a person, for medication to end his or her life in
a humane and dignified manner. [1995 c.3 §3.12]
     127.875
§3.13. Insurance or annuity policies. The sale, procurement, or issuance of any life, health, or accident
insurance or annuity policy or the rate charged for any policy shall not be
conditioned upon or affected by the making or rescinding of a request, by a
person, for medication to end his or her life in a humane and dignified manner.
Neither shall a qualified patientÂ’s act of ingesting medication to end his or
her life in a humane and dignified manner have an effect upon a life, health,
or accident insurance or annuity policy. [1995 c.3 §3.13]
     127.880
§3.14. Construction of Act.
Nothing in ORS 127.800 to 127.897 shall be construed to authorize a physician
or any other person to end a patientÂ’s life by lethal injection, mercy killing
or active euthanasia. Actions taken in accordance with ORS 127.800 to 127.897
shall not, for any purpose, constitute suicide, assisted suicide, mercy killing
or homicide, under the law. [1995 c.3 §3.14]
(Immunities and
Liabilities)
(Section 4)
     127.885
§4.01. Immunities; basis for prohibiting health care provider from
participation; notification; permissible sanctions. Except as provided in ORS 127.890:
     (1) No person shall be subject to civil or
criminal liability or professional disciplinary action for participating in
good faith compliance with ORS 127.800 to 127.897. This includes being present
when a qualified patient takes the prescribed medication to end his or her life
in a humane and dignified manner.
     (2) No professional organization or association,
or health care provider, may subject a person to censure, discipline,
suspension, loss of license, loss of privileges, loss of membership or other
penalty for participating or refusing to participate in good faith compliance
with ORS 127.800 to 127.897.
     (3) No request by a patient for or
provision by an attending physician of medication in good faith compliance with
the provisions of ORS 127.800 to 127.897 shall constitute neglect for any
purpose of law or provide the sole basis for the appointment of a guardian or
conservator.
     (4) No health care provider shall be under
any duty, whether by contract, by statute or by any other legal requirement to
participate in the provision to a qualified patient of medication to end his or
her life in a humane and dignified manner. If a health care provider is unable
or unwilling to carry out a patientÂ’s request under ORS 127.800 to 127.897, and
the patient transfers his or her care to a new health care provider, the prior
health care provider shall transfer, upon request, a copy of the patientÂ’s
relevant medical records to the new health care provider.
     (5)(a) Notwithstanding any other provision
of law, a health care provider may prohibit another health care provider from
participating in ORS 127.800 to 127.897 on the premises of the prohibiting
provider if the prohibiting provider has notified the health care provider of
the prohibiting providerÂ’s policy regarding participating in ORS 127.800 to
127.897. Nothing in this paragraph prevents a health care provider from
providing health care services to a patient that do not constitute
participation in ORS 127.800 to 127.897.
     (b) Notwithstanding the provisions of
subsections (1) to (4) of this section, a health care provider may subject
another health care provider to the sanctions stated in this paragraph if the
sanctioning health care provider has notified the sanctioned provider prior to
participation in ORS 127.800 to 127.897 that it prohibits participation in ORS
127.800 to 127.897:
     (A) Loss of privileges, loss of membership
or other sanction provided pursuant to the medical staff bylaws, policies and
procedures of the sanctioning health care provider if the sanctioned provider
is a member of the sanctioning providerÂ’s medical staff and participates in ORS
127.800 to 127.897 while on the health care facility premises, as defined in
ORS 442.015, of the sanctioning health care provider, but not including the
private medical office of a physician or other provider;
     (B) Termination of lease or other property
contract or other nonmonetary remedies provided by lease contract, not
including loss or restriction of medical staff privileges or exclusion from a
provider panel, if the sanctioned provider participates in ORS 127.800 to
127.897 while on the premises of the sanctioning health care provider or on
property that is owned by or under the direct control of the sanctioning health
care provider; or
     (C) Termination of contract or other
nonmonetary remedies provided by contract if the sanctioned provider
participates in ORS 127.800 to 127.897 while acting in the course and scope of
the sanctioned providerÂ’s capacity as an employee or independent contractor of
the sanctioning health care provider. Nothing in this subparagraph shall be
construed to prevent:
     (i) A health care provider from
participating in ORS 127.800 to 127.897 while acting outside the course and
scope of the providerÂ’s capacity as an employee or independent contractor; or
     (ii) A patient from contracting with his
or her attending physician and consulting physician to act outside the course
and scope of the providerÂ’s capacity as an employee or independent contractor
of the sanctioning health care provider.
     (c) A health care provider that imposes
sanctions pursuant to paragraph (b) of this subsection must follow all due
process and other procedures the sanctioning health care provider may have that
are related to the imposition of sanctions on another health care provider.
     (d) For purposes of this subsection:
     (A) “Notify” means a separate statement in
writing to the health care provider specifically informing the health care
provider prior to the providerÂ’s participation in ORS 127.800 to 127.897 of the
sanctioning health care providerÂ’s policy about participation in activities
covered by ORS 127.800 to 127.897.
     (B) “Participate in ORS 127.800 to 127.897”
means to perform the duties of an attending physician pursuant to ORS 127.815,
the consulting physician function pursuant to ORS 127.820 or the counseling
function pursuant to ORS 127.825. “Participate in ORS 127.800 to 127.897” does
not include:
     (i) Making an initial determination that a
patient has a terminal disease and informing the patient of the medical
prognosis;
     (ii) Providing information about the
Oregon Death with Dignity Act to a patient upon the request of the patient;
     (iii) Providing a patient, upon the
request of the patient, with a referral to another physician; or
     (iv) A patient contracting with his or her
attending physician and consulting physician to act outside of the course and scope
of the providerÂ’s capacity as an employee or independent contractor of the
sanctioning health care provider.
     (6) Suspension or termination of staff
membership or privileges under subsection (5) of this section is not reportable
under ORS 441.820. Action taken pursuant to ORS 127.810, 127.815, 127.820 or
127.825 shall not be the sole basis for a report of unprofessional or
dishonorable conduct under ORS 677.415 (3), (4), (5) or (6).
     (7) No provision of ORS 127.800 to 127.897
shall be construed to allow a lower standard of care for patients in the
community where the patient is treated or a similar community. [1995 c.3 §4.01;
1999 c.423 §10; 2003 c.554 §3]
     Note: As originally enacted by the people, the
leadline to section 4.01 read “Immunities.” The remainder of the leadline was
added by editorial action.
     127.890
§4.02. Liabilities. (1) A
person who without authorization of the patient willfully alters or forges a
request for medication or conceals or destroys a rescission of that request
with the intent or effect of causing the patientÂ’s death shall be guilty of a
Class A felony.
     (2) A person who coerces or exerts undue
influence on a patient to request medication for the purpose of ending the
patientÂ’s life, or to destroy a rescission of such a request, shall be guilty
of a Class A felony.
     (3) Nothing in ORS 127.800 to 127.897
limits further liability for civil damages resulting from other negligent
conduct or intentional misconduct by any person.
     (4) The penalties in ORS 127.800 to
127.897 do not preclude criminal penalties applicable under other law for
conduct which is inconsistent with the provisions of ORS 127.800 to 127.897. [1995
c.3 §4.02]
     127.892
Claims by governmental entity for costs incurred. Any governmental entity that incurs costs
resulting from a person terminating his or her life pursuant to the provisions
of ORS 127.800 to 127.897 in a public place shall have a claim against the
estate of the person to recover such costs and reasonable attorney fees related
to enforcing the claim. [1999 c.423 §5a]
(Severability)
(Section 5)
     127.895
§5.01. Severability. Any
section of ORS 127.800 to 127.897 being held invalid as to any person or
circumstance shall not affect the application of any other section of ORS
127.800 to 127.897 which can be given full effect without the invalid section
or application. [1995 c.3 §5.01]
(Form of the
Request)
(Section 6)
     127.897
§6.01. Form of the request.
A request for a medication as authorized by ORS 127.800 to 127.897 shall be in
substantially the following form:
______________________________________________________________________________
REQUEST FOR MEDICATION
TO END MY LIFE IN A HUMANE
AND DIGNIFIED MANNER
     I, ______________________, am an adult of
sound mind.
     I am suffering from_________, which my
attending physician has determined is a terminal disease and which has been
medically confirmed by a consulting physician.
     I have been fully informed of my
diagnosis, prognosis, the nature of medication to be prescribed and potential
associated risks, the expected result, and the feasible alternatives, including
comfort care, hospice care and pain control.
     I request that my attending physician
prescribe medication that will end my life in a humane and dignified manner.
     INITIAL ONE:
     ______I have informed my family of my
decision and taken their opinions into consideration.
     ______I have decided not to inform my
family of my decision.
     ______I have no family to inform of my
decision.
     I understand that I have the right to
rescind this request at any time.
     I understand the full import of this
request and I expect to die when I take the medication to be prescribed. I
further understand that although most deaths occur within three hours, my death
may take longer and my physician has counseled me about this possibility.
     I make this request voluntarily and
without reservation, and I accept full moral responsibility for my actions.
     Signed: _______________
     Dated: _______________
DECLARATION OF WITNESSES
     We declare that the person signing this
request:
     (a) Is personally known to us or has
provided proof of identity;
     (b) Signed this request in our presence;
     (c) Appears to be of sound mind and not
under duress, fraud or undue influence;
     (d) Is not a patient for whom either of us
is attending physician.
     ______________Witness 1/Date
     ______________Witness 2/Date
     NOTE: One witness shall not be a relative
(by blood, marriage or adoption) of the person signing this request, shall not
be entitled to any portion of the personÂ’s estate upon death and shall not own,
operate or be employed at a health care facility where the person is a patient
or resident. If the patient is an inpatient at a health care facility, one of
the witnesses shall be an individual designated by the facility.
______________________________________________________________________________
[1995 c.3 §6.01;
1999 c.423 §11]
PENALTIES
     127.990 [Formerly part of 97.990; repealed by 1993
c.767 §29]
     127.995
Penalties. (1) It shall be a
Class A felony for a person without authorization of the principal to willfully
alter, forge, conceal or destroy an instrument, the reinstatement or revocation
of an instrument or any other evidence or document reflecting the principalÂ’s
desires and interests, with the intent and effect of causing a withholding or
withdrawal of life-sustaining procedures or of artificially administered
nutrition and hydration which hastens the death of the principal.
     (2) Except as provided in subsection (1)
of this section, it shall be a Class A misdemeanor for a person without
authorization of the principal to willfully alter, forge, conceal or destroy an
instrument, the reinstatement or revocation of an instrument, or any other
evidence or document reflecting the principalÂ’s desires and interests with the
intent or effect of affecting a health care decision. [Formerly 127.585]
_______________
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