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Minnesota Legislature

Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

  
    Laws of Minnesota 1993 

                         CHAPTER 312-S.F.No. 40 
           An act relating to probate; establishing a durable 
          power of attorney for health care; establishing duties 
          of health care providers for the provision of 
          life-sustaining health care; imposing penalties; 
          proposing coding for new law in Minnesota Statutes, 
          chapter 145B; proposing coding for new law as 
          Minnesota Statutes, chapter 145C; repealing Minnesota 
          Statutes 1992, section 145B.10. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  [145B.105] [PENALTIES.] 
    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 
living will of a declarant without the consent of the declarant; 
    (2) willfully conceals or withholds personal knowledge of a 
revocation of a living will; 
    (3) falsifies or forges a living will or a revocation of a 
living will; 
    (4) coerces or fraudulently induces another to execute a 
living will; or 
    (5) requires or prohibits the execution of a living will as 
a condition for being insured for or receiving all or some 
health care services. 
    Subd. 2.  [FELONY OFFENSES.] Whoever commits an act 
prohibited under subdivision 1 is guilty of a felony if the act 
results in bodily harm to the declarant or to the person who 
would have been a declarant but for the unlawful act. 
    Sec. 2.  [145C.01] [DEFINITIONS.] 
    Subdivision 1.  [APPLICABILITY.] The definitions in this 
section apply to this chapter. 
    Subd. 2.  [AGENT.] "Agent" means an individual age 18 or 
older who is designated by a principal in a durable power of 
attorney for health care to make health care decisions on behalf 
of a principal and has consented to act in that capacity.  An 
agent may also be referred to as "attorney in fact." 
    Subd. 3.  [DURABLE POWER OF ATTORNEY FOR HEALTH 
CARE.] "Durable power of attorney for health care" means an 
instrument authorizing an agent 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. 
    Subd. 4.  [HEALTH CARE.] "Health care" means any care, 
treatment, service, or procedure to maintain, diagnose, or treat 
a person's physical or mental condition.  Health care includes 
the provision of nutrition or hydration parenterally or through 
intubation.  "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.  
    Subd. 5.  [HEALTH CARE DECISION.] "Health care decision" 
means the consent, refusal of consent, or withdrawal of consent 
to health care. 
    Subd. 6.  [HEALTH CARE PROVIDER.] "Health care provider" 
means a person, health care facility, organization, or 
corporation licensed, certified, or otherwise authorized or 
permitted by the laws of this state to administer health care 
directly or through an arrangement with other health care 
providers, including health maintenance organizations licensed 
under chapter 62D. 
    Subd. 7.  [HEALTH CARE FACILITY.] "Health care facility" 
means a hospital or other entity licensed under sections 144.50 
to 144.58, a nursing home licensed to serve adults under section 
144A.02, or a home care provider licensed under sections 144A.43 
to 144A.49. 
    Subd. 8.  [PRINCIPAL.] "Principal" means an individual age 
18 or older who has executed a durable power of attorney for 
health care. 
    Sec. 3.  [145C.02] [DURABLE POWER OF ATTORNEY FOR HEALTH 
CARE.] 
    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 the effective date of 
this chapter 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 4. 
    Sec. 4.  [145C.03] [REQUIREMENTS.] 
    Subdivision 1.  [EXECUTION.] 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. 
    Subd. 2.  [INDIVIDUALS INELIGIBLE TO ACT AS AGENT.] The 
following individuals are not eligible to act as the agent in a 
durable power of attorney for health care, unless the individual 
designated is related to the principal by blood, marriage, 
registered domestic partnership, or adoption: 
    (1) a health care provider attending the principal; or 
    (2) an employee of a health care provider attending the 
principal.  
    Subd. 3.  [INDIVIDUALS INELIGIBLE TO ACT AS WITNESSES.] The 
agent designated in the durable power of attorney for health 
care may not act as a witness for the execution of the durable 
power of attorney for health care. 
    At least one witness to the execution of the durable power 
of attorney for health care 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. 
    Sec. 5.  [145C.04] [EXECUTED IN ANOTHER STATE.] 
    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. 
    Sec. 6.  [145C.05] [SUGGESTED FORM.] 
    Subdivision 1.  [CONTENT.] A durable power of attorney for 
health care 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." 
    Subd. 2.  [ADDITIONAL PROVISIONS.] The durable power of 
attorney for health care may include additional provisions 
consistent with this chapter, including: 
    (1) the designation of one or more alternative agents to 
act if the named agent is unable, unavailable, or unwilling to 
serve; 
    (2) specific instructions to the agent or any alternative 
agents; 
    (3) limitations, if any, on the right of the agent or any 
alternative agents to receive, review, obtain copies of, and 
consent to the disclosure of the principal's medical records; 
and 
    (4) limitations, if any, on the nomination of the agent as 
guardian or conservator for purposes of section 525.544. 
    Sec. 7.  [145C.06] [WHEN EFFECTIVE.] 
    (a) Except as provided in paragraph (b), a durable power of 
attorney for health care is effective for a health care decision 
when: 
    (1) it has been executed in accordance with section 4; 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. 
     (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 4, 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. 8.  [145C.07] [AUTHORITY AND DUTIES OF AGENT.] 
    Subdivision 1.  [AUTHORITY.] The agent has authority to 
make any particular health care decision only if the principal 
is unable, in the determination of the attending physician, to 
make or communicate that health care decision.  The agent does 
not have authority to consent to a voluntary commitment under 
chapter 253B.  The physician or 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. 
     Subd. 2.  [AGENT AS GUARDIAN.] Except as otherwise provided 
in the durable power of attorney for health care, appointment of 
the agent in a durable power of attorney for health care 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 health care, the 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.  An agent or any 
alternative agent has a personal obligation to the principal to 
make health care decisions authorized by the durable 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 of a proxy under 
chapter 145B or section 253B.03, subdivision 6d, or of an agent 
under this chapter, the most recent designation 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, the 
provisions of the most recently executed document take 
precedence only to the extent of the inconsistency. 
    Sec. 9.  [145C.08] [AUTHORITY TO REVIEW MEDICAL RECORDS.] 
    An agent acting pursuant to a durable power of attorney for 
health care 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. 
    Sec. 10.  [145C.09] [REVOCATION OF DURABLE POWER OF 
ATTORNEY.] 
    Subdivision 1.  [REVOCATION.] The principal may revoke a 
durable power of attorney for health care 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 instrument or directing another in the presence of the 
principal to destroy the durable power of attorney for health 
care instrument; 
    (2) executing a statement, in writing and dated, expressing 
the principal's intent to revoke the durable power of attorney 
for health care; 
    (3) verbally expressing the principal's intent to revoke 
the durable power of attorney for health care 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, 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 AGENT.] 
Unless the durable power of attorney for health care expressly 
provides otherwise, the appointment by the principal of the 
principal's spouse or domestic partner as agent under a durable 
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. 11.  [145C.10] [PRESUMPTIONS.] 
    The principal is presumed to have capacity to appoint an 
agent to make health care decisions and to revoke a durable 
power of attorney for health care.  A health care provider or 
agent may presume that a durable power of attorney for health 
care is valid absent actual knowledge to the contrary. 
    It is presumed that an agent, and a health care provider 
acting pursuant to the direction of an agent, are acting in good 
faith and in the best interests of the principal, absent clear 
and convincing evidence to the contrary. 
    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 and 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. 
    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. 12.  [145C.11] [IMMUNITIES.] 
    Subdivision 1.  [AGENT.] An 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. 
    Subd. 2.  [HEALTH CARE PROVIDER.] (a) 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 agent 
and the following requirements are satisfied: 
    (1) the health care provider believes in good faith that 
the decision was made by an agent authorized to make the 
decision and has no actual knowledge that the durable power of 
attorney for health care 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 agent. 
    (b) A health care provider who administers health care 
necessary to keep the principal alive, despite a health care 
decision of the 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 transfer care of the 
principal to another health care provider willing to comply with 
the decision of the agent. 
    Sec. 13.  [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. 
    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 
agent appointed pursuant to this chapter. 
    Sec. 14.  [145C.13] [PENALTIES.] 
     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 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; 
    (3) falsifies or forges a durable power of attorney for 
health care or a revocation of the instrument; 
    (4) coerces or fraudulently induces another to execute a 
durable power of attorney for health care; or 
    (5) requires or prohibits the execution of a durable power 
of attorney for health care as a condition for being insured for 
or receiving all or some health care services. 
    Subd. 2.  [FELONY OFFENSES.] Whoever commits an act 
prohibited under subdivision 1 is guilty of a felony if the act 
results in bodily harm to the principal or to the person who 
would have been a principal but for the unlawful act. 
    Sec. 15.  [145C.14] [CERTAIN PRACTICES NOT CONDONED.] 
    Nothing in this chapter may be construed to condone, 
authorize, or approve mercy killing or euthanasia. 
     Sec. 16.  [145C.15] [DUTIES OF HEALTH CARE PROVIDERS TO 
PROVIDE LIFE-SUSTAINING HEALTH CARE.] 
    (a) If a proxy acting under chapter 145B or an 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 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. 17.  [REPEALER.] 
    Minnesota Statutes 1992, section 145B.10, is repealed. 
     Sec. 18.  [EFFECTIVE DATE.] 
    Sections 1 and 14 are effective August 1, 1993, and apply 
to offenses committed on or after that date. 
    Presented to the governor May 17, 1993 
    Signed by the governor May 20, 1993, 2:04 p.m.