Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1998, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 399-S.F.No. 2050
An act relating to health; modifying provisions
governing advance health care directives; combining
laws governing living wills and durable power of
attorney for health care; amending Minnesota Statutes
1996, sections 144.335, subdivision 1; 145C.01,
subdivisions 2, 3, 4, 8, and by adding subdivisions;
145C.02; 145C.03; 145C.04; 145C.05, subdivisions 1 and
2; 145C.06; 145C.07; 145C.08; 145C.09; 145C.10;
145C.11; 145C.12; 145C.13, subdivision 1; 145C.15;
525.55, subdivisions 1 and 2; 525.551, subdivisions 1
and 5; 525.9212; and 609.215, subdivision 3; Minnesota
Statutes 1997 Supplement, sections 149A.80,
subdivision 2; 253B.04, subdivision 1a; 253B.07,
subdivision 1; and 253B.092, subdivisions 2 and 6;
proposing coding for new law in Minnesota Statutes,
chapters 145B; and 145C.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1996, section 144.335,
subdivision 1, is amended to read:
Subdivision 1. [DEFINITIONS.] For the purposes of this
section, the following terms have the meanings given them:
(a) "Patient" means a natural person who has received
health care services from a provider for treatment or
examination of a medical, psychiatric, or mental condition, the
surviving spouse and parents of a deceased patient, or a person
the patient designates appoints in writing as a representative,
including a health care agent acting pursuant to chapter 145C,
unless the authority of the agent has been limited by the
principal in the principal's health care directive. Except for
minors who have received health care services pursuant to
sections 144.341 to 144.347, in the case of a minor, patient
includes a parent or guardian, or a person acting as a parent or
guardian in the absence of a parent or guardian.
(b) "Provider" means (1) any person who furnishes health
care services and is licensed to furnish the services pursuant
to chapter 147, 148, 148B, 150A, 151, or 153; (2) a home care
provider licensed under section 144A.46; (3) a health care
facility licensed pursuant to this chapter or chapter 144A; (4)
a physician assistant registered under chapter 147A; and (5) an
unlicensed mental health practitioner regulated pursuant to
sections 148B.60 to 148B.71.
(c) "Individually identifiable form" means a form in which
the patient is or can be identified as the subject of the health
records.
Sec. 2. [145B.011] [APPLICATION OF CHAPTER.]
This chapter applies only to living wills executed before
August 1, 1998. If a document purporting to be a living will is
executed on or after August 1, 1998, its legal sufficiency,
interpretation, and enforcement must be determined under the
provisions of chapter 145C in effect on the date of its
execution.
Sec. 3. Minnesota Statutes 1996, section 145C.01, is
amended by adding a subdivision to read:
Subd. 1a. [ACT IN GOOD FAITH.] "Act in good faith" means
to act consistently with a legally sufficient health care
directive of the principal, a living will executed under chapter
145B, a declaration regarding intrusive mental health treatment
executed under section 253B.03, subdivision 6d, or information
otherwise made known by the principal, unless the actor has
actual knowledge of the modification or revocation of the
information expressed. If these sources of information do not
provide adequate guidance to the actor, "act in good faith"
means acting in the best interests of the principal, considering
the principal's overall general health condition and prognosis
and the principal's personal values to the extent known.
Notwithstanding any instruction of the principal, a health care
agent, health care provider, or any other person is not acting
in good faith if the person violates the provisions of section
609.215 prohibiting assisted suicide.
Sec. 4. Minnesota Statutes 1996, section 145C.01, is
amended by adding a subdivision to read:
Subd. 1b. [DECISION-MAKING CAPACITY.] "Decision-making
capacity" means the ability to understand the significant
benefits, risks, and alternatives to proposed health care and to
make and communicate a health care decision.
Sec. 5. Minnesota Statutes 1996, section 145C.01,
subdivision 2, is amended to read:
Subd. 2. [HEALTH CARE AGENT.] "Health care agent" means an
individual age 18 or older who is designated appointed by a
principal in a durable health care power of attorney for health
care to make health care decisions on behalf of a the principal
and has consented to act in that capacity. An agent "Health
care agent" may also be referred to as "attorney in fact agent."
Sec. 6. Minnesota Statutes 1996, section 145C.01,
subdivision 3, is amended to read:
Subd. 3. [DURABLE HEALTH CARE POWER OF ATTORNEY FOR HEALTH
CARE.] "Durable Health care power of attorney for health care"
means an instrument authorizing an agent appointing one or more
health care agents to make health care decisions for the
principal if the principal is unable, in the judgment of the
attending physician, to make or communicate health care
decisions.
Sec. 7. Minnesota Statutes 1996, section 145C.01,
subdivision 4, is amended to read:
Subd. 4. [HEALTH CARE.] "Health care" means any care,
treatment, service, or procedure to maintain, diagnose, or treat
otherwise affect a person's physical or mental condition.
"Health care" includes the provision of nutrition or hydration
parenterally or through intubation but does not include any
treatment, service, or procedure that violates the provisions of
section 609.215 prohibiting assisted suicide. "Health
care" does not include intrusive mental health treatment as
defined in section 253B.03, subdivision 6b, unless the durable
power of attorney for health care specifically applies to
decisions relating to intrusive mental health treatment also
includes the establishment of a person's abode within or without
the state and personal security safeguards for a person, to the
extent decisions on these matters relate to the health care
needs of the person.
Sec. 8. Minnesota Statutes 1996, section 145C.01, is
amended by adding a subdivision to read:
Subd. 5a. [HEALTH CARE DIRECTIVE.] "Health care directive"
means a written instrument that complies with section 145C.03
and includes one or more health care instructions, a health care
power of attorney, or both; or a durable power of attorney for
health care executed under this chapter before August 1, 1998.
Sec. 9. Minnesota Statutes 1996, section 145C.01, is
amended by adding a subdivision to read:
Subd. 7a. [HEALTH CARE INSTRUCTION.] "Health care
instruction" means a written statement of the principal's
values, preferences, guidelines, or directions regarding health
care.
Sec. 10. Minnesota Statutes 1996, section 145C.01,
subdivision 8, is amended to read:
Subd. 8. [PRINCIPAL.] "Principal" means an individual age
18 or older who has executed a durable power of attorney for
health care directive.
Sec. 11. Minnesota Statutes 1996, section 145C.01, is
amended by adding a subdivision to read:
Subd. 9. [REASONABLY AVAILABLE.] "Reasonably available"
means able to be contacted and willing and able to act in a
timely manner considering the urgency of the principal's health
care needs.
Sec. 12. Minnesota Statutes 1996, section 145C.02, is
amended to read:
145C.02 [DURABLE POWER OF ATTORNEY FOR HEALTH CARE
DIRECTIVE.]
A durable power of attorney for health care under this
chapter authorizes the agent to make health care decisions for
the principal when the principal is unable, in the judgment of
the principal's attending physician, to make or communicate
health care decisions. The durable power of attorney for health
care must substantially comply with the requirements of this
chapter. An instrument executed prior to August 1, 1993,
purporting to create a durable power of attorney for health care
is valid if the document specifically authorizes the agent to
make health care decisions and is executed in compliance with
section 145C.03. A principal with the capacity to do so may
execute a health care directive. A health care directive may
include one or more health care instructions to direct health
care providers, others assisting with health care, family
members, and a health care agent. A health care directive may
include a health care power of attorney to appoint a health care
agent to make health care decisions for the principal when the
principal, in the judgment of the principal's attending
physician, lacks decision-making capacity, unless otherwise
specified in the health care directive.
Sec. 13. Minnesota Statutes 1996, section 145C.03, is
amended to read:
145C.03 [REQUIREMENTS.]
Subdivision 1. [EXECUTION LEGAL SUFFICIENCY.] A durable
power of attorney for health care must be signed by the
principal or in the principal's name by some other individual
acting in the principal's presence and by the principal's
direction. A durable power of attorney for health care must
contain the date of its execution and must be witnessed or
acknowledged by one of the following methods:
(1) signed by at least two individuals age 18 or older each
of whom witnessed either the signing of the instrument by the
principal or the principal's acknowledgment of the signature; or
(2) acknowledged by the principal before a notary public
who is not the agent. To be legally sufficient in this state, a
health care directive must:
(1) be in writing;
(2) be dated;
(3) state the principal's name;
(4) be executed by a principal with capacity to do so with
the signature of the principal or with the signature of another
person authorized by the principal to sign on behalf of the
principal;
(5) contain verification of the principal's signature or
the signature of the person authorized by the principal to sign
on behalf of the principal, either by a notary public or by
witnesses as provided under this chapter; and
(6) include a health care instruction, a health care power
of attorney, or both.
Subd. 2. [INDIVIDUALS INELIGIBLE TO ACT AS HEALTH CARE
AGENT.] (a) An individual appointed by the principal under
section 145C.05, subdivision 2, paragraph (b), to make the
determination of the principal's decision-making capacity is not
eligible to act as the health care agent.
(b) The following individuals are not eligible to act as
the health care agent in a durable power of attorney for health
care, unless the individual designated appointed is related to
the principal by blood, marriage, registered domestic
partnership, or adoption, or unless the principal has otherwise
specified in the health care directive:
(1) a health care provider attending the principal on the
date of execution of the health care directive or on the date
the health care agent must make decisions for the principal; or
(2) an employee of a health care provider attending the
principal on the date of execution of the health care directive
or on the date the health care agent must make decisions for the
principal.
Subd. 3. [INDIVIDUALS INELIGIBLE TO ACT AS WITNESSES OR
NOTARY PUBLIC.] The (a) A health care agent designated or
alternate health care agent appointed in the durable power of
attorney for a health care power of attorney may not act as a
witness or notary public for the execution of the durable power
of attorney for health care directive that includes the health
care power of attorney.
(b) At least one witness to the execution of the durable
power of attorney for health care directive must not be a health
care provider providing direct care to the principal or an
employee of a health care provider providing direct care to the
principal on the date of execution. A person notarizing a
health care directive may be an employee of a health care
provider providing direct care to the principal.
Sec. 14. Minnesota Statutes 1996, section 145C.04, is
amended to read:
145C.04 [EXECUTED IN ANOTHER STATE.]
(a) A durable power of attorney for health care or similar
document executed in another state or jurisdiction in compliance
with the law of that state or jurisdiction is valid and
enforceable in this state, to the extent the document is
consistent with the laws of this state health care directive or
similar document executed in another state or jurisdiction is
legally sufficient under this chapter if it:
(1) complies with the law of the state or jurisdiction in
which it was executed; or
(2) complies with section 145C.03.
(b) Nothing in this section shall be interpreted to
authorize a directive or similar document to override the
provisions of section 609.215 prohibiting assisted suicide.
Sec. 15. Minnesota Statutes 1996, section 145C.05,
subdivision 1, is amended to read:
Subdivision 1. [CONTENT.] A durable power of attorney for
health care directive executed pursuant to this chapter may, but
need not, be in the following form:
"I appoint .......... as my agent (my attorney in fact) to
make any health care decision for me when, in the judgment of my
attending physician, I am unable to make or communicate the
decision myself and my agent consents to make or communicate the
decision on my behalf.
My agent has the power to make any health care decision for
me. This power includes the power to give consent, to refuse
consent, or to withdraw consent to any care, treatment, service,
or procedure to maintain, diagnose, or treat my physical or
mental condition, including giving me food or water by
artificial means. My agent has the power, where consistent with
the laws of this state, to make a health care decision to
withhold or stop health care necessary to keep me alive. It is
my intention that my agent or any alternative agent has a
personal obligation to me to make health care decisions for me
consistent with my expressed wishes. I understand, however,
that my agent or any alternative agent has no legal duty to act.
My agent and any alternative agents have consented to act
as my agent. My agent and any alternative agents have been
notified that they will be nominated as a guardian or
conservator for me.
My agent must act consistently with my desires as stated in
this document or as otherwise made known by me to my agent.
My agent has the same right as I would have to receive,
review, and obtain copies of my medical records and to consent
to disclosure of those records." contained in section 145C.16.
Sec. 16. Minnesota Statutes 1996, section 145C.05,
subdivision 2, is amended to read:
Subd. 2. [ADDITIONAL PROVISIONS THAT MAY BE INCLUDED.] The
durable power of attorney for (a) A health care directive may
include additional provisions consistent with this chapter,
including, but not limited to:
(1) the designation of one or more alternative alternate
health care agents to act if the named health care agent is
unable, unavailable, or unwilling not reasonably available to
serve;
(2) specific instructions to the agent or any alternative
agents directions to joint health care agents regarding the
process or standards by which the health care agents are to
reach a health care decision for the principal, and a statement
whether joint health care agents may act independently of one
another;
(3) limitations, if any, on the right of the health care
agent or any alternative alternate health care agents to
receive, review, obtain copies of, and consent to the disclosure
of the principal's medical records;
(4) limitations, if any, on the nomination of the health
care agent as guardian or conservator of the person for purposes
of section 525.544; and
(5) a document of gift for the purpose of making an
anatomical gift, as set forth in sections 525.921 to 525.9224,
or an amendment to, revocation of, or refusal to make an
anatomical gift.;
(6) a declaration regarding intrusive mental health
treatment under section 253B.03, subdivision 6d, or a statement
that the health care agent is authorized to give consent for the
principal under section 253B.04, subdivision 1a;
(7) a funeral directive as provided in section 149A.80,
subdivision 2;
(8) limitations, if any, to the effect of dissolution or
annulment of marriage or termination of domestic partnership on
the appointment of a health care agent under section 145C.09,
subdivision 2;
(9) specific reasons why a principal wants a health care
provider or an employee of a health care provider attending the
principal to be eligible to act as the principal's health care
agent;
(10) health care instructions by a woman of child bearing
age regarding how she would like her pregnancy, if any, to
affect health care decisions made on her behalf; and
(11) health care instructions regarding artificially
administered nutrition or hydration.
(b) A health care directive may include a statement of the
circumstances under which the directive becomes effective other
than upon the judgment of the principal's attending physician in
the following situations:
(1) a principal who in good faith generally selects and
depends upon spiritual means or prayer for the treatment or care
of disease or remedial care and does not have an attending
physician, may include a statement appointing an individual who
may determine the principal's decision-making capacity; and
(2) a principal who in good faith does not generally select
a physician or a health care facility for the principal's health
care needs may include a statement appointing an individual who
may determine the principal's decision-making capacity, provided
that if the need to determine the principal's capacity arises
when the principal is receiving care under the direction of an
attending physician in a health care facility, the determination
must be made by an attending physician after consultation with
the appointed individual.
If a person appointed under clause (1) or (2) is not
reasonably available and the principal is receiving care under
the direction of an attending physician in a health care
facility, an attending physician shall determine the principal's
decision-making capacity.
(c) A health care directive may authorize a health care
agent to make health care decisions for a principal even though
the principal retains decision-making capacity.
Sec. 17. Minnesota Statutes 1996, section 145C.06, is
amended to read:
145C.06 [WHEN EFFECTIVE.]
(a) Except as provided in paragraph (b), a durable power of
attorney for A health care directive is effective for a health
care decision when:
(1) it has been executed in accordance with meets the
requirements of section 145C.03, subdivision 1; and
(2) the principal is unable, in the determination of the
attending physician of the principal, to make or communicate
that health care decision and the agent consents to make or
communicate the decision lacks decision-making capacity to make
the health care decision; or if other conditions for
effectiveness otherwise specified by the principal have been met.
A health care directive is not effective for a health care
decision when the principal, in the determination of the
attending physician of the principal, recovers decision-making
capacity; or if other conditions for effectiveness otherwise
specified by the principal have been met.
(b) If the principal states in the durable power of
attorney that the principal does not have an attending physician
because the principal in good faith generally selects and
depends upon spiritual means or prayer for the treatment or care
of disease or remedial care, the principal may designate an
individual in the durable power of attorney for health care who
may certify in a writing acknowledged before a notary public
that the principal is unable to make or communicate a health
care decision. The requirements of section 145C.03,
subdivisions 2 and 3, relating to the eligibility of a health
care provider attending the principal or the provider's employee
to act as an agent or witness apply to an individual designated
under this paragraph.
Sec. 18. Minnesota Statutes 1996, section 145C.07, is
amended to read:
145C.07 [AUTHORITY AND DUTIES OF HEALTH CARE AGENT.]
Subdivision 1. [AUTHORITY.] The health care agent has
authority to make any particular health care decision only if
the principal is unable lacks decision-making capacity, in the
determination of the attending physician, to make or communicate
that health care decision; or if other conditions for
effectiveness otherwise specified by the principal have been
met. The agent does not have authority to consent to a
voluntary commitment under chapter 253B. The physician or other
health care provider shall continue to obtain the principal's
informed consent to all health care decisions for which the
principal is capable of informed consent has decision-making
capacity, unless other conditions for effectiveness otherwise
specified by the principal have been met. An alternate health
care agent has authority to act if the primary health care agent
is not reasonably available to act.
Subd. 2. [HEALTH CARE AGENT AS GUARDIAN.] Except as
otherwise provided in the durable power of attorney for health
care Unless the principal has otherwise specified in the health
care directive, the appointment of the health care agent in a
durable power of attorney for health care directive is
considered a nomination of a guardian or conservator of the
person for purposes of section 525.544.
Subd. 3. [DUTIES.] In exercising the authority under the
durable power of attorney for a health care directive, the a
health care agent has a duty to act in accordance with the
desires of the principal as expressed in the durable power of
attorney for health care, as expressed in a living will under
chapter 145B or in a declaration regarding intrusive mental
health treatment under section 253B.03, subdivision 6d, or as
otherwise made known by the principal to the agent at any time.
If the principal's desires are not known or cannot be determined
from information known to the agent, the agent has a duty to act
in the best interests of the principal taking into account the
principal's overall medical condition and prognosis good faith.
An A health care agent or any alternative alternate health care
agent has a personal obligation to the principal to make health
care decisions authorized by the durable health care power of
attorney for health care, but this obligation does not
constitute a legal duty to act.
Subd. 4. [INCONSISTENCIES AMONG DOCUMENTS.] In the event
of inconsistency between the designation appointment of a proxy
under chapter 145B or section 253B.03, subdivision 6d, or of an
a health care agent under this chapter, the most
recent designation appointment takes precedence. In the event
of other inconsistencies among documents executed under this
chapter, under chapter 145B, or under section 253B.03,
subdivision 6d, or 525.544, or other legally sufficient
documents, the provisions of the most recently executed document
take precedence only to the extent of the inconsistency.
Sec. 19. Minnesota Statutes 1996, section 145C.08, is
amended to read:
145C.08 [AUTHORITY TO REVIEW MEDICAL RECORDS.]
An A health care agent acting pursuant to a durable power
of attorney for health care directive has the same right as the
principal to receive, review, and obtain copies of medical
records of the principal, and to consent to the disclosure of
medical records of the principal, unless the durable power of
attorney for health care expressly provides otherwise principal
has otherwise specified in the health care directive.
Sec. 20. Minnesota Statutes 1996, section 145C.09, is
amended to read:
145C.09 [REVOCATION OF DURABLE POWER OF ATTORNEY HEALTH
CARE DIRECTIVE.]
Subdivision 1. [REVOCATION.] The A principal with the
capacity to do so may revoke a durable power of attorney for
health care directive in whole or in part at any time by doing
any of the following:
(1) canceling, defacing, obliterating, burning, tearing, or
otherwise destroying the durable power of attorney for health
care directive instrument or directing another in the presence
of the principal to destroy the durable power of attorney for
health care directive instrument, with the intent to revoke the
health care directive in whole or in part;
(2) executing a statement, in writing and dated, expressing
the principal's intent to revoke the durable power of attorney
for health care directive in whole or in part;
(3) verbally expressing the principal's intent to revoke
the durable power of attorney for health care directive in whole
or in part in the presence of two witnesses who do not have to
be present at the same time; or
(4) executing a subsequent durable power of attorney for
health care instrument directive, to the extent the subsequent
instrument is inconsistent with any prior instrument.
Subd. 2. [EFFECT OF DISSOLUTION OR ANNULMENT OF MARRIAGE
OR TERMINATION OF DOMESTIC PARTNERSHIP ON APPOINTMENT OF HEALTH
CARE AGENT.] Unless the durable power of attorney for health
care expressly provides otherwise principal has otherwise
specified in the health care directive, the appointment by the
principal of the principal's spouse or registered domestic
partner as health care agent under a durable health care power
of attorney for health care is revoked by the commencement of
proceedings for dissolution, annulment, or termination of the
principal's marriage or commencement of proceedings for
termination of the principal's registered domestic partnership.
Sec. 21. Minnesota Statutes 1996, section 145C.10, is
amended to read:
145C.10 [PRESUMPTIONS.]
(a) The principal is presumed to have the capacity to
appoint an agent to make execute a health care decisions
directive and to revoke a durable power of attorney for health
care directive, absent clear and convincing evidence to the
contrary.
(b) A health care provider or health care agent may presume
that a durable power of attorney for health care directive is
valid legally sufficient absent actual knowledge to the contrary.
A health care directive is presumed to be properly executed,
absent clear and convincing evidence to the contrary.
It is presumed that an (c) A health care agent, and a
health care provider acting pursuant to the direction of an a
health care agent, are presumed to be acting in good faith and
in the best interests of the principal, absent clear and
convincing evidence to the contrary.
(d) A health care directive is presumed to remain in effect
until the principal modifies or revokes it, absent clear and
convincing evidence to the contrary.
(e) This chapter does not create a presumption concerning
the intention of an individual who has not executed a durable
power of attorney for health care directive and, except as
otherwise provided by section 145C.15, does not impair or
supersede any right or responsibility of an individual to
consent, refuse to consent, or withdraw consent to health care
on behalf of another in the absence of a durable power of
attorney for health care directive.
(f) A copy of a health care directive is presumed to be a
true and accurate copy of the executed original, absent clear
and convincing evidence to the contrary, and must be given the
same effect as an original.
(g) When a patient lacks decision-making capacity and is
pregnant, and in reasonable medical judgment there is a real
possibility that if health care to sustain her life and the life
of the fetus is provided the fetus could survive to the point of
live birth, the health care provider shall presume that the
patient would have wanted such health care to be provided, even
if the withholding or withdrawal of such health care would be
authorized were she not pregnant. This presumption is negated
by health care directive provisions described in section
145C.05, subdivision 2, paragraph (a), clause (10), that are to
the contrary, or, in the absence of such provisions, by clear
and convincing evidence that the patient's wishes, while
competent, were to the contrary.
For purposes of this chapter, acting in good faith means
acting consistently with the desires of the principal as
expressed in the durable power of attorney for health care, as
expressed in a living will under chapter 145B or in a
declaration regarding intrusive mental health treatment under
section 253B.03, subdivision 6d, or otherwise made known by the
principal to the agent. If the principal's desires are not
known or cannot be determined from information known to the
agent, acting in good faith means acting in the best interests
of the principal, taking into account the principal's overall
medical condition and prognosis.
Sec. 22. Minnesota Statutes 1996, section 145C.11, is
amended to read:
145C.11 [IMMUNITIES.]
Subdivision 1. [HEALTH CARE AGENT.] An A health care agent
is not subject to criminal prosecution or civil liability for
any health care decision made in good faith pursuant to a
durable power of attorney for health care, unless the agent has
actual knowledge of the revocation of the durable power of
attorney for health care if the health care agent acts in good
faith.
Subd. 2. [HEALTH CARE PROVIDER.] (a) With respect to
health care provided to a patient with a health care directive,
a health care provider is not subject to criminal prosecution,
civil liability, or professional disciplinary action if the
health care provider acts in good faith and in accordance with
applicable standards of care.
(b) A health care provider is not subject to criminal
prosecution, civil liability, or professional disciplinary
action if the health care provider relies on a health care
decision made by the health care agent and the following
requirements are satisfied:
(1) the health care provider believes in good faith that
the decision was made by an a health care agent authorized
appointed to make the decision and has no actual knowledge that
the durable power of attorney for health care directive has been
revoked; and
(2) the health care provider believes in good faith that
the decision is consistent with the desires of the principal as
expressed in the durable power of attorney for health care or
otherwise made known by the principal to the health care agent
is acting in good faith.
(b) (c) A health care provider who administers health care
necessary to keep the principal alive, despite a health care
decision of the health care agent to withhold or withdraw that
treatment, is not subject to criminal prosecution, civil
liability, or professional disciplinary action if that health
care provider promptly took all reasonable steps to:
(1) notify the health care agent of the health care
provider's unwillingness to comply;
(2) document the notification in the principal's medical
record; and
(3) permit the health care agent to arrange to transfer
care of the principal to another health care provider willing to
comply with the decision of the health care agent.
Sec. 23. Minnesota Statutes 1996, section 145C.12, is
amended to read:
145C.12 [PROHIBITED PRACTICES.]
Subdivision 1. [HEALTH CARE PROVIDER.] A health care
provider, health care service plan, insurer, self-insured
employee welfare benefit plan, or nonprofit hospital plan may
not condition admission to a facility, or the providing of
treatment or insurance, on the requirement that an individual
execute a durable power of attorney for health care directive.
Subd. 2. [INSURANCE.] A policy of life insurance is not
legally impaired or invalidated in any manner by the withholding
or withdrawing of health care pursuant to the direction of an a
health care agent appointed pursuant to this chapter, or
pursuant to the implementation of health care instructions under
this chapter.
Sec. 24. [145C.16] [SUGGESTED FORM.]
The following is a suggested form of a health care
directive and is not a required form.
HEALTH CARE DIRECTIVE
I, ..........................., understand this document
allows me to do ONE OR BOTH of the following:
PART I: Name another person (called the health care agent)
to make health care decisions for me if I am unable to decide or
speak for myself. My health care agent must make health care
decisions for me based on the instructions I provide in this
document (Part II), if any, the wishes I have made known to him
or her, or must act in my best interest if I have not made my
health care wishes known.
AND/OR
PART II: Give health care instructions to guide others
making health care decisions for me. If I have named a health
care agent, these instructions are to be used by the agent.
These instructions may also be used by my health care providers,
others assisting with my health care and my family, in the event
I cannot make decisions for myself.
PART I: APPOINTMENT OF HEALTH CARE AGENT
THIS IS WHO I WANT TO MAKE HEALTH CARE DECISIONS
FOR ME IF I AM UNABLE TO DECIDE OR SPEAK FOR MYSELF
(I know I can change my agent or alternate agent at any
time and I know I do not have to appoint an agent or an
alternate agent)
NOTE: If you appoint an agent, you should discuss this health
care directive with your agent and give your agent a copy. If
you do not wish to appoint an agent, you may leave Part I blank
and go to Part II.
When I am unable to decide or speak for myself, I trust and
appoint .......................... to make health care decisions
for me. This person is called my health care agent.
Relationship of my health care agent to me: .........
...............................................................
Telephone number of my health care agent: ...........
...............................................................
Address of my health care agent: ....................
..............................................................
(OPTIONAL) APPOINTMENT OF ALTERNATE HEALTH CARE AGENT: If
my health care agent is not reasonably available, I trust and
appoint .................... to be my health care agent instead.
Relationship of my alternate health care agent to me:
...............................................................
Telephone number of my alternate health care agent:
...............................................................
Address of my alternate health care agent: .........
...............................................................
THIS IS WHAT I WANT MY HEALTH CARE AGENT TO BE ABLE TO
DO IF I AM UNABLE TO DECIDE OR SPEAK FOR MYSELF
(I know I can change these choices)
My health care agent is automatically given the powers
listed below in (A) through (D). My health care agent must
follow my health care instructions in this document or any other
instructions I have given to my agent. If I have not given
health care instructions, then my agent must act in my best
interest.
Whenever I am unable to decide or speak for myself, my
health care agent has the power to:
(A) Make any health care decision for me. This includes
the power to give, refuse, or withdraw consent to any care,
treatment, service, or procedures. This includes deciding
whether to stop or not start health care that is keeping me or
might keep me alive, and deciding about intrusive mental health
treatment.
(B) Choose my health care providers.
(C) Choose where I live and receive care and support when
those choices relate to my health care needs.
(D) Review my medical records and have the same rights that
I would have to give my medical records to other people.
If I DO NOT want my health care agent to have a power
listed above in (A) through (D) OR if I want to LIMIT any power
in (A) through (D), I MUST say that here:
..............................................................
...............................................................
...............................................................
My health care agent is NOT automatically given the powers
listed below in (1) and (2). If I WANT my agent to have any of
the powers in (1) and (2), I must INITIAL the line in front of
the power; then my agent WILL HAVE that power.
... (1) To decide whether to donate my organs when I die.
... (2) To decide what will happen with my body when I die
(burial, cremation).
If I want to say anything more about my health care agent's
powers or limits on the powers, I can say it here:
.................................................................
.................................................................
.................................................................
PART II: HEALTH CARE INSTRUCTIONS
NOTE: Complete this Part II if you wish to give health care
instructions. If you appointed an agent in Part I, completing
this Part II is optional but would be very helpful to your
agent. However, if you chose not to appoint an agent in Part I,
you MUST complete some or all of this Part II if you wish to
make a valid health care directive.
These are instructions for my health care when I am unable
to decide or speak for myself. These instructions must be
followed (so long as they address my needs).
THESE ARE MY BELIEFS AND VALUES ABOUT MY HEALTH CARE
(I know I can change these choices or leave any of them
blank)
I want you to know these things about me to help you make
decisions about my health care:
My goals for my health care: ..............................
.................................................................
.................................................................
My fears about my health care: ............................
.................................................................
.................................................................
My spiritual or religious beliefs and traditions: .........
.................................................................
.................................................................
My beliefs about when life would be no longer worth
living: ........................................................
.................................................................
.................................................................
My thoughts about how my medical condition might affect my
family: ........................................................
.................................................................
.................................................................
THIS IS WHAT I WANT AND DO NOT WANT FOR MY HEALTH CARE
(I know I can change these choices or leave any of them
blank)
Many medical treatments may be used to try to improve my
medical condition or to prolong my life. Examples include
artificial breathing by a machine connected to a tube in the
lungs, artificial feeding or fluids through tubes, attempts to
start a stopped heart, surgeries, dialysis, antibiotics, and
blood transfusions. Most medical treatments can be tried for a
while and then stopped if they do not help.
I have these views about my health care in these situations:
(Note: You can discuss general feelings, specific
treatments, or leave any of them blank)
If I had a reasonable chance of recovery, and were
temporarily unable to decide or speak for myself, I would want:
.................................................................
.................................................................
.................................................................
If I were dying and unable to decide or speak for myself, I
would want: ....................................................
.................................................................
.................................................................
If I were permanently unconscious and unable to decide or
speak for myself, I would want: ................................
.................................................................
.................................................................
If I were completely dependent on others for my care and
unable to decide or speak for myself, I would want: ............
.................................................................
.................................................................
In all circumstances, my doctors will try to keep me
comfortable and reduce my pain. This is how I feel about pain
relief if it would affect my alertness or if it could shorten my
life: ..........................................................
.................................................................
.................................................................
There are other things that I want or do not want for my
health care, if possible:
Who I would like to be my doctor: .........................
.................................................................
.................................................................
Where I would like to live to receive health care:
.................................................................
.................................................................
.................................................................
Where I would like to die and other wishes I have about
dying: .........................................................
.................................................................
.................................................................
My wishes about donating parts of my body when I die: .....
.................................................................
.................................................................
My wishes about what happens to my body when I die
(cremation, burial): ...........................................
.................................................................
.................................................................
Any other things: .........................................
.................................................................
.................................................................
PART III: MAKING THE DOCUMENT LEGAL
This document must be signed by me. It also must either be
verified by a notary public (Option 1) OR witnessed by two
witnesses (Option 2). It must be dated when it is verified or
witnessed.
I am thinking clearly, I agree with everything that is
written in this document, and I have made this document
willingly.
..........................................
My Signature
Date signed: .....................
Date of birth: .....................
Address: ...................................
...................................
If I cannot sign my name, I can ask someone to sign this
document for me.
..........................................
Signature of the person who I asked to sign this document for me.
..........................................
Printed name of the person who I asked to sign this document for
me.
Option 1: Notary Public
In my presence on .................... (date),
....................... (name) acknowledged his/her signature on
this document or acknowledged that he/she authorized the person
signing this document to sign on his/her behalf. I am not named
as a health care agent or alternate health care agent in this
document.
..............................
(Signature of Notary) (Notary Stamp)
Option 2: Two Witnesses
Two witnesses must sign. Only one of the two witnesses can
be a health care provider or an employee of a health care
provider giving direct care to me on the day I sign this
document.
Witness One:
(i) In my presence on ............... (date),
............... (name) acknowledged his/her signature on this
document or acknowledged that he/she authorized the person
signing this document to sign on his/her behalf.
(ii) I am at least 18 years of age.
(iii) I am not named as a health care agent or an alternate
health care agent in this document.
(iv) If I am a health care provider or an employee of a
health care provider giving direct care to the person listed
above in (A), I must initial this box: [ ]
I certify that the information in (i) through (iv) is true
and correct.
......................................
(Signature of Witness One)
Address: ..........................................
..........................................
Witness Two:
(i) In my presence on .............. (date),
................. (name) acknowledged his/her signature on this
document or acknowledged that he/she authorized the person
signing this document to sign on his/her behalf.
(ii) I am at least 18 years of age.
(iii) I am not named as a health care agent or an alternate
health care agent in this document.
(iv) If I am a health care provider or an employee of a
health care provider giving direct care to the person listed
above in (A), I must initial this box: [ ]
I certify that the information in (i) through (iv) is true
and correct.
....................................
(Signature of Witness Two)
Address: .........................................
.........................................
REMINDER: Keep this document with your personal papers in a
safe place (not in a safe deposit box). Give signed copies to
your doctors, family, close friends, health care agent, and
alternate health care agent. Make sure your doctor is willing
to follow your wishes. This document should be part of your
medical record at your physician's office and at the hospital,
home care agency, hospice, or nursing facility where you receive
your care.
Sec. 25. Minnesota Statutes 1996, section 145C.13,
subdivision 1, is amended to read:
Subdivision 1. [GROSS MISDEMEANOR OFFENSES.] Whoever
commits any of the following acts is guilty of a gross
misdemeanor:
(1) willfully conceals, cancels, defaces, or obliterates a
durable power of attorney for health care directive of a
principal without the consent of the principal;
(2) willfully conceals or withholds personal knowledge of a
revocation of a durable power of attorney for health care
directive;
(3) falsifies or forges a durable power of attorney for
health care directive or a revocation of the instrument;
(4) coerces or fraudulently induces another to execute a
durable power of attorney for health care directive; or
(5) requires or prohibits the execution of a durable power
of attorney for health care directive as a condition for being
insured for or receiving all or some health care services.
Sec. 26. Minnesota Statutes 1996, section 145C.15, is
amended to read:
145C.15 [DUTIES OF HEALTH CARE PROVIDERS TO PROVIDE
LIFE-SUSTAINING HEALTH CARE.]
(a) If a proxy acting under chapter 145B or an a health
care agent acting under this chapter directs the provision of
health care, nutrition, or hydration that, in reasonable medical
judgment, has a significant possibility of sustaining the life
of the principal or declarant, a health care provider shall take
all reasonable steps to ensure the provision of the directed
health care, nutrition, or hydration if the provider has the
legal and actual capability of providing the health care either
itself or by transferring the principal or declarant to a health
care provider who has that capability. Any transfer of a
principal or declarant under this paragraph must be done
promptly and, if necessary to preserve the life of the principal
or declarant, by emergency means. This paragraph does not apply
if a living will under chapter 145B or a durable power of
attorney for health care directive indicates an intention to the
contrary.
(b) A health care provider who is unwilling to provide
directed health care under paragraph (a) that the provider has
the legal and actual capability of providing may transfer the
principal or declarant to another health care provider willing
to provide the directed health care but the provider shall take
all reasonable steps to ensure provision of the directed health
care until the principal or declarant is transferred.
(c) Nothing in this section alters any legal obligation or
lack of legal obligation of a health care provider to provide
health care to a principal or declarant who refuses, has
refused, or is unable to pay for the health care.
Sec. 27. Minnesota Statutes 1997 Supplement, section
149A.80, subdivision 2, is amended to read:
Subd. 2. [DETERMINATION OF RIGHT TO CONTROL AND DUTY OF
DISPOSITION.] The right to control the disposition of the
remains of a deceased person, including the location and
conditions of final disposition, unless other directions have
been given by the decedent pursuant to subdivision 1, vests in,
and the duty of final disposition of the body devolves upon, the
following in the order named:
(1) the person designated appointed in a dated written
instrument signed by the decedent. Written instrument includes,
but is not limited to, a health care directive executed under
chapter 145C. Written instrument does not include a durable or
nondurable power of attorney which terminates on the death of
the principal pursuant to sections 523.08 and 523.09;
(2) the surviving, legally recognized spouse;
(3) the surviving biological or adopted child or children
of the decedent over the age of majority, provided that, in the
absence of actual knowledge to the contrary, a funeral director
or mortician may rely on instructions given by the child or
children who represent that they are the sole surviving child,
or that they constitute a majority of the surviving children;
(4) the surviving parent or parents of the decedent;
(5) the surviving biological or adopted sibling or siblings
of the decedent over the age of majority, provided that, in the
absence of actual knowledge to the contrary, a funeral director
or mortician may rely on instructions given by the sibling or
siblings who represent that they are the sole surviving sibling,
or that they constitute a majority of the surviving siblings;
(6) the person or persons respectively in the next degree
of kinship in the order named by law to inherit the estate of
the decedent; and
(7) the appropriate public or court authority, as required
by law.
For purposes of this subdivision, the appropriate public or
court authority includes the county board of the county in which
the death occurred if the person dies without apparent financial
means to provide for final disposition or the district court in
the county in which the death occurred.
Sec. 28. Minnesota Statutes 1997 Supplement, section
253B.04, subdivision 1a, is amended to read:
Subd. 1a. [VOLUNTARY TREATMENT OR ADMISSION FOR PERSONS
WITH MENTAL ILLNESS.] (a) A person with a mental illness may
seek or voluntarily agree to accept treatment or admission to a
facility. If the mental health provider determines that the
person lacks the capacity to give informed consent for the
treatment or admission, and in the absence of a durable power of
attorney for health care power of attorney that authorizes
consent, the designated agency or its designee may give informed
consent for mental health treatment or admission to a treatment
facility on behalf of the person.
(b) The designated agency shall apply the following
criteria in determining the person's ability to give informed
consent:
(1) whether the person demonstrates an awareness of the
person's illness, and the reasons for treatment, its risks,
benefits and alternatives, and the possible consequences of
refusing treatment; and
(2) whether the person communicates verbally or nonverbally
a clear choice concerning treatment that is a reasoned one, not
based on delusion, even though it may not be in the person's
best interests.
(c) The basis for the designated agency's decision that the
person lacks the capacity to give informed consent for treatment
or admission, and that the patient has voluntarily accepted
treatment or admission, must be documented in writing.
(d) A mental health provider that provides treatment in
reliance on the written consent given by the designated agency
under this subdivision is not civilly or criminally liable for
performing treatment without consent. This paragraph does not
affect any other liability that may result from the manner in
which the treatment is performed.
(e) A person who receives treatment or is admitted to a
facility under this subdivision has the right to refuse
treatment at any time or to be released from a facility as
provided under subdivision 2. The person or any interested
person acting on the person's behalf may seek court review
within five days for a determination of whether the person's
agreement to accept treatment or admission is voluntary. At the
time a person agrees to treatment or admission to a facility
under this subdivision, the designated agency or its designee
shall inform the person in writing of the person's rights under
this paragraph.
(f) This subdivision does not authorize the administration
of neuroleptic medications. Neuroleptic medications may be
administered only as provided in section 253B.092.
Sec. 29. Minnesota Statutes 1997 Supplement, section
253B.07, subdivision 1, is amended to read:
Subdivision 1. [PREPETITION SCREENING.] (a) Prior to
filing a petition for commitment of or early intervention for a
proposed patient, an interested person shall apply to the
designated agency in the county of the proposed patient's
residence or presence for conduct of a preliminary
investigation, except when the proposed patient has been
acquitted of a crime under section 611.026 and the county
attorney is required to file a petition for commitment. The
designated agency shall appoint a screening team to conduct an
investigation which shall include:
(i) a personal interview with the proposed patient and
other individuals who appear to have knowledge of the condition
of the proposed patient. If the proposed patient is not
interviewed, reasons must be documented;
(ii) identification and investigation of specific alleged
conduct which is the basis for application;
(iii) identification, exploration, and listing of the
reasons for rejecting or recommending alternatives to
involuntary placement; and
(iv) in the case of a commitment based on mental illness,
the following information, if it is known or available:
information that may be relevant to the administration of
neuroleptic medications, if necessary, including the existence
of a declaration under section 253B.03, subdivision 6d, or a
durable power of attorney for health care directive under
chapter 145C or a guardian, conservator, proxy,
or attorney-in-fact agent with authority to make health care
decisions for the proposed patient; information regarding the
capacity of the proposed patient to make decisions regarding
administration of neuroleptic medication; and whether the
proposed patient is likely to consent or refuse consent to
administration of the medication.
(b) In conducting the investigation required by this
subdivision, the screening team shall have access to all
relevant medical records of proposed patients currently in
treatment facilities. Data collected pursuant to this clause
shall be considered private data on individuals. The
prepetition screening report is not admissible in any court
proceedings unrelated to the commitment proceedings.
(c) When the prepetition screening team recommends
commitment, a written report shall be sent to the county
attorney for the county in which the petition is to be filed.
(d) The prepetition screening team shall refuse to support
a petition if the investigation does not disclose evidence
sufficient to support commitment. Notice of the prepetition
screening team's decision shall be provided to the prospective
petitioner.
(e) If the interested person wishes to proceed with a
petition contrary to the recommendation of the prepetition
screening team, application may be made directly to the county
attorney, who may determine whether or not to proceed with the
petition. Notice of the county attorney's determination shall
be provided to the interested party.
(f) If the proposed patient has been acquitted of a crime
under section 611.026, the county attorney shall apply to the
designated county agency in the county in which the acquittal
took place for a preliminary investigation unless substantially
the same information relevant to the proposed patient's current
mental condition, as could be obtained by a preliminary
investigation, is part of the court record in the criminal
proceeding or is contained in the report of a mental examination
conducted in connection with the criminal proceeding. If a
court petitions for commitment pursuant to the rules of criminal
or juvenile procedure or a county attorney petitions pursuant to
acquittal of a criminal charge under section 611.026, the
prepetition investigation, if required by this section, shall be
completed within seven days after the filing of the petition.
Sec. 30. Minnesota Statutes 1997 Supplement, section
253B.092, subdivision 2, is amended to read:
Subd. 2. [ADMINISTRATION WITHOUT JUDICIAL REVIEW.]
Neuroleptic medications may be administered without judicial
review in the following circumstances:
(1) the patient has the capacity to make an informed
decision under subdivision 4;
(2) the patient does not have the present capacity to
consent to the administration of neuroleptic medication, but
prepared a durable power of attorney for health care directive
under chapter 145C or a declaration under section 253B.03,
subdivision 6d, requesting treatment or authorizing an agent or
proxy to request treatment, and the agent or proxy has requested
the treatment;
(3) a substitute decision-maker appointed by the court
consents to the administration of the neuroleptic medication and
the patient does not refuse administration of the medication; or
(4) the substitute decision-maker does not consent or the
patient is refusing medication, and the patient is in an
emergency situation.
Sec. 31. Minnesota Statutes 1997 Supplement, section
253B.092, subdivision 6, is amended to read:
Subd. 6. [PATIENTS WITHOUT CAPACITY TO MAKE INFORMED
DECISION; SUBSTITUTE DECISION-MAKER.] (a) Upon request of any
person, and upon a showing that administration of neuroleptic
medications may be recommended and that the person may lack
capacity to make decisions regarding the administration of
neuroleptic medication, the court shall appoint a substitute
decision-maker with authority to consent to the administration
of neuroleptic medication as provided in this section. The
substitute decision-maker must be an individual or a community
or institutional multidisciplinary panel designated by the local
mental health authority. In appointing a substitute
decision-maker, the court shall give preference to a guardian or
conservator, proxy, or attorney-in-fact health care agent with
authority to make health care decisions for the patient. The
court may provide for the payment of a reasonable fee to the
substitute decision-maker for services under this section or may
appoint a volunteer.
(b) If the person's treating physician recommends treatment
with neuroleptic medication, the substitute decision-maker may
give or withhold consent to the administration of the
medication, based on the standards under subdivision 7. If the
substitute decision-maker gives informed consent to the
treatment and the person does not refuse, the substitute
decision-maker shall provide written consent to the treating
physician and the medication may be administered. The
substitute decision-maker shall also notify the court that
consent has been given. If the substitute decision-maker
refuses or withdraws consent or the person refuses the
medication, neuroleptic medication may not be administered to
the person without a court order or in an emergency.
(c) A substitute decision-maker appointed under this
section has access to the pertinent sections of the patient's
health records on the past or present administration of
medication. The designated agency or a person involved in the
patient's physical or mental health care may disclose
information to the substitute decision-maker for the sole
purpose of performing the responsibilities under this section.
(d) At a hearing under section 253B.08, the petitioner has
the burden of proving incapacity by a preponderance of the
evidence. If a substitute decision-maker has been appointed by
the court, the court shall make findings regarding the patient's
capacity to make decisions regarding the administration of
neuroleptic medications and affirm or reverse its appointment of
a substitute decision-maker. If the court affirms the
appointment of the substitute decision-maker, and if the
substitute decision-maker has consented to the administration of
the medication and the patient has not refused, the court shall
make findings that the substitute decision-maker has consented
and the treatment is authorized. If a substitute decision-maker
has not yet been appointed, upon request the court shall make
findings regarding the patient's capacity and appoint a
substitute decision-maker if appropriate.
(e) If an order for civil commitment or early intervention
did not provide for the appointment of a substitute
decision-maker or for the administration of neuroleptic
medication, the treatment facility may later request the
appointment of a substitute decision-maker upon a showing that
administration of neuroleptic medications is recommended and
that the person lacks capacity to make decisions regarding the
administration of neuroleptic medications. A hearing is not
required in order to administer the neuroleptic medication
unless requested under subdivision 10 or if the substitute
decision-maker withholds or refuses consent or the person
refuses the medication.
(f) The substitute decision-maker's authority to consent to
treatment lasts for the duration of the court's order of
appointment or until modified by the court.
If the substitute decision-maker withdraws consent or the
patient refuses consent, neuroleptic medication may not be
administered without a court order.
(g) If there is no hearing after the preliminary hearing,
then the court shall, upon the request of any interested party,
review the reasonableness of the substitute decision-maker's
decision based on the standards under subdivision 7. The court
shall enter an order upholding or reversing the decision within
seven days.
Sec. 32. Minnesota Statutes 1996, section 525.55,
subdivision 1, is amended to read:
Subdivision 1. [TIME OF NOTICE; TO WHOM GIVEN.] In all
cases, upon the filing of the petition the court shall fix the
time and place for the hearing and shall order that notice be
given of the hearing. At least 14 days prior to the hearing,
personal service of the notice shall be made upon the proposed
ward or conservatee. Notice by mail postmarked at least 14 days
before the hearing shall also be served on:
(1) the spouse, parents, adult children, brothers and
sisters,;
(2) a health care agent or proxy appointed pursuant to a
health care directive as defined in section 145C.01, a living
will under chapter 145B, or other similar document executed in
another state and enforceable under the laws of this state; and,
(3) if none of those in clause (1) or (2) are alive or can
be located, on the nearest kindred as determined by the court,
and on any other persons the court may direct, by mail
postmarked at least 14 days prior to the hearing.
If the person is a patient or, resident, or client of any
hospital, nursing home, home care agency, or other institution,
notice by mail shall also be given to the administrative head of
the institution. If the person is a nonresident or if after
diligent search cannot be found in this state, notice shall be
given in the manner and to those persons as the court may
determine.
Sec. 33. Minnesota Statutes 1996, section 525.55,
subdivision 2, is amended to read:
Subd. 2. [FORM; SERVICE.] The notice shall be written in
language which can be easily understood. Included with the
notice shall be a copy of the petition. The notice shall
contain information regarding the nature, purpose and legal
effects of the guardianship or conservatorship proceedings on
the proposed ward or conservatee. The notice shall state that
the person may be adjudged incapable of self care for person or
property, and by reason thereof, a guardian or conservator may
be appointed, and that the adjudication may transfer to the
appointed guardian or conservator certain rights, including the
right to manage and control property, to enter into contracts
and to determine residence. The notice shall further contain
information regarding the rights of the proposed ward or
conservatee in the proceeding, including the right to attend the
hearing, to be represented by an attorney, to oppose the
proceeding, and to present evidence. The notice shall state
that if the proposed ward or conservatee wishes to exercise the
right to be represented by an attorney, that person must either
obtain counsel of choice, or ask the court to appoint an
attorney to represent that person, and that the county shall pay
a reasonable attorney's fee if that person is indigent. The
procedure for requesting a court appointed attorney shall be
described in the notice. If the proposed ward or conservatee is
a patient, resident, or client of any hospital, nursing home,
home care agency, or other institution, the notice must further
require the institution to advise the court of the existence, if
known, of a health care directive, as defined in section
145C.01, executed by the proposed ward or conservatee, a living
will executed under chapter 145B, or any other similar document
executed in another state and enforceable under the laws of this
state.
The process server shall inquire whether the proposed ward
or conservatee desires the notice and petition to be read to
that person, and shall read the notice and petition if requested
to do so. In place of a process server, the court may appoint a
visitor to deliver the notice and petition and explain them to
the proposed ward or conservatee.
Sec. 34. Minnesota Statutes 1996, section 525.551,
subdivision 1, is amended to read:
Subdivision 1. [ATTENDANCE AT HEARING.] If the proposed
ward or conservatee is within the state, that person shall be
present at the hearing unless in a meeting with a visitor that
person specifically waives the right to appear in person or is
not able to attend by reason of medical condition as evidenced
by a written statement from a licensed physician. The written
statement shall be evidence only of the proposed ward's or
conservatee's medical inability to attend the hearing, and shall
not be considered in determining the issue of incapacity. The
written statement must also inform the court of the physician's
knowledge, if any, of the existence of a health care directive,
as defined in section 145C.01, executed by the proposed ward or
conservatee, a living will executed under chapter 145B, or any
other similar document executed in another state and enforceable
under the laws of this state. In any instance in which a
proposed ward or conservatee is absent from the hearing, the
court shall specify in its findings of fact the reason for
nonattendance.
If a visitor delivered the notice and petition pursuant to
section 525.55 and the proposed ward or conservatee has waived
the right to attend the hearing, the visitor may testify as to
the notice and any waiver of the right to appear in person, and
as to other matters which may assist the court in determining
the need for a guardian or conservator and the extent of the
power to be granted.
Sec. 35. Minnesota Statutes 1996, section 525.551,
subdivision 5, is amended to read:
Subd. 5. [FINDINGS.] In all cases the court shall make
specific written findings of fact, state separately its
conclusions of law, and direct the entry of an appropriate
judgment or order.
If upon completion of the hearing and consideration of the
record the court finds: (a) that the requirements for the
voluntary appointment of a conservator or guardian have been
met, or (b)(1) that the proposed ward or conservatee is
incapacitated as defined in section 525.54; and (2) in need of
the supervision and protection of a guardian or conservator; and
(3) that no appropriate alternatives to the guardianship or
conservatorship exist which are less restrictive of the person's
civil rights and liberties, such as those set forth in section
525.54, subdivision 7, it shall enter its order or judgment
granting all of the powers set out in section 525.56,
subdivision 3, in the case of a guardian of the person, and
section 525.56, subdivision 4, in the case of a guardian of the
estate, or specifying the powers of the conservator pursuant to
section 525.56. The court shall make a finding that appointment
of the person chosen as guardian or conservator is in the best
interests of the ward or conservatee. Except as provided in
section 525.544, subdivision 1, if more than one person has
petitioned the court to serve as guardian or conservator, or if
the petition is contested, the court shall make a finding that
the person to be appointed as guardian or conservator is the
most suitable and best qualified person among those who are
available before making the appointment. The court's finding as
to the best available guardian must specifically address the
reasons for the court's determination that the appointment of
that person is in the best interests of the ward or
conservatee. The court must also clarify the respective legal
authorities of a guardian or conservator appointed under this
chapter and any existing health care agent or proxy appointed
under a health care directive as defined in section 145C.01, a
living will under chapter 145B, or other similar document
executed in another state and enforceable under the laws of this
state.
The court may enumerate in its findings which legal rights
the proposed ward or conservatee is incapable of exercising.
Sec. 36. Minnesota Statutes 1996, section 525.9212, is
amended to read:
525.9212 [MAKING, REVOKING, AND OBJECTING TO ANATOMICAL
GIFTS, BY OTHERS.]
(a) Any member of the following classes of persons, in the
order of priority listed, may make an anatomical gift of all or
a part of the decedent's body for an authorized purpose, unless
the decedent has made a refusal to make that anatomical gift
that is unrevoked at the time of death:
(1) the spouse of the decedent;
(2) an adult son or daughter of the decedent;
(3) either parent of the decedent;
(4) an adult brother or sister of the decedent;
(5) a grandparent of the decedent; and
(6) a guardian or conservator of the person of the decedent
at the time of death or a health care agent or proxy appointed
by the decedent under a health care directive as defined in
section 145C.01, a living will under chapter 145B, or other
similar document executed in another state and enforceable under
the laws of this state.
(b) An anatomical gift may not be made by a person listed
in paragraph (a) if:
(1) a person in a prior class is available at the time of
death to make an anatomical gift;
(2) the person proposing to make an anatomical gift knows
of a refusal or contrary indications by the decedent; or
(3) the person proposing to make an anatomical gift knows
of an objection to making an anatomical gift by a member of the
person's class or a prior class.
(c) An anatomical gift by a person authorized under
paragraph (a) must be made by (i) a document of gift signed by
the person, or (ii) the person's telegraphic, recorded
telephonic, or other recorded message, or other form of
communication from the person that is contemporaneously reduced
to writing and signed by the recipient.
(d) An anatomical gift by a person authorized under
paragraph (a) may be revoked by any member of the same or a
prior class if, before procedures have begun for the removal of
a part from the body of the decedent, the physician, surgeon,
technician, or enucleator removing the part knows of the
revocation.
(e) A failure to make a decision as to an anatomical gift
under paragraph (a) is not an objection to the making of an
anatomical gift.
Sec. 37. Minnesota Statutes 1996, section 609.215,
subdivision 3, is amended to read:
Subd. 3. [ACTS OR OMISSIONS NOT CONSIDERED AIDING SUICIDE
OR AIDING ATTEMPTED SUICIDE.] (a) A health care provider, as
defined in section 145B.02, subdivision 6, who administers,
prescribes, or dispenses medications or procedures to relieve
another person's pain or discomfort, even if the medication or
procedure may hasten or increase the risk of death, does not
violate this section unless the medications or procedures are
knowingly administered, prescribed, or dispensed to cause death.
(b) A health care provider, as defined in section 145B.02,
subdivision 6, who withholds or withdraws a life-sustaining
procedure in compliance with chapter 145B or 145C or in
accordance with reasonable medical practice does not violate
this section.
Sec. 38. [EFFECT OF AMENDMENTS.]
A document executed prior to August 1, 1998, that purports
to be a living will under Minnesota Statutes, chapter 145B, a
durable power of attorney for health care under Minnesota
Statutes, chapter 145C, or a declaration regarding intrusive
mental health treatment under Minnesota Statutes, section
253B.03, subdivision 6a, is valid if the document:
(1) complied with the law in effect on the date it was
executed; or
(2) complies with the requirements of Minnesota Statutes,
section 145C.03.
If the document complied with the law in effect on the date
it was executed but does not also comply with the requirements
of Minnesota Statutes, section 145C.03, it shall be given effect
in accordance with the laws in effect on the date it was
executed, unless the document provides otherwise.
Nothing in sections 1 to 38 impairs the evidentiary effect
under common law or reasonable medical practice with respect to
other written or oral expressions of an individual's desires
regarding health care.
Sec. 39. [EFFECTIVE DATE.]
Sections 1 to 38 are effective August 1, 1998.
Presented to the governor April 10, 1998
Signed by the governor April 21, 1998, 10:43 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes