§ 20-6-103 — Oral or written individual instructions - Advance directive for health care - When effective - Decisions based on best interest assessment - Out-of-state directives - Construction

(a) (1) (A) An adult, married minor, or emancipated minor may make healthcare decisions for himself or herself and give an individual instruction. (B) A person who is authorized to consent on behalf of a principal may make healthcare decisions for the principal and may give an individual instruction. (2) The instruction may be oral or written. (3) The instruction may be limited to take effect only if a specified condition arises. (b) (1) An adult, married minor, or emancipated minor may execute a durable power of attorney for health care that authorizes an agent to make a healthcare decision that the principal could make if he or she had capacity. (2) A durable power of attorney for health care shall be in writing and signed by the principal. (3) A durable power of attorney for health care remains in effect notwithstanding the principal's latest incapacity and may include a living will or other individual instructions. (c) (1) An advance directive, including without limitation a living will or durable power of attorney for health care, shall be either notarized or witnessed by two (2) witnesses. (2) For the purposes of this subsection, a witness shall be a competent adult who is not the agent, and at least one (1) of the witnesses is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the advance directive or by operation of law. (3) A written advance directive, including without limitation a living will or durable power of attorney for health care, that is witnessed shall contain an attestation clause that attests that the witnesses comply with this subsection. (4) A written advance directive may include the principal's nomination of a guardian of the principal. (d) Unless otherwise specified in an advance directive, the authority of an agent becomes effective only upon a determination that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity. (e) (1) If necessary, a licensed physician shall determine whether a principal lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent. (2) In making a determination under subdivision (e)(1) of this section, a licensed physician may consult with other persons as he or she deems appropriate. (f) (1) An agent shall make a healthcare decision in accordance with the principal's individual instructions and other wishes to the extent known to the agent. (2) (A) In the absence of individual instructions or other information, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. (B) In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent. (g) A healthcare decision made by an agent for a principal is effective without judicial approval. (h) An advance directive that is executed outside of this state shall be given effect in this state if, at the time of execution, the advance directive complies with either this subchapter or the laws of the state in which the advance directive was executed. (i) A healthcare provider, healthcare institution, healthcare service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital plan shall not require the execution or revocation of an advance directive as a condition of the principal's being insured for or receiving health care.

Legislative History

Amended by Act 2017, No. 974,§ 1, eff. 8/1/2017. Added by Act 2013, No. 1264,§ 1, eff. 8/16/2013.