1997 Minnesota Statutes

CHAPTER 145C. Durable power of attorney for health care

     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. 

    HIST: 1993 c 312 s 2 

     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 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. 

    HIST: 1993 c 312 s 3 

     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. 

    HIST: 1993 c 312 s 4 

     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. 

    HIST: 1993 c 312 s 5 

     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; 

    (4) limitations, if any, on the nomination of the agent as 
 guardian or conservator 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. 

    HIST: 1993 c 312 s 6; 1995 c 211 s 2 

     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 
 145C.03; 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 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. 

    HIST: 1993 c 312 s 7 

     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. 

    HIST: 1993 c 312 s 8 

     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. 

    HIST: 1993 c 312 s 9 

     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. 

    HIST: 1993 c 312 s 10 

     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. 

    HIST: 1993 c 312 s 11 

     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. 

    HIST: 1993 c 312 s 12 

     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. 

    HIST: 1993 c 312 s 13 

     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. 

    HIST: 1993 c 312 s 14 

     145C.14 Certain practices not condoned. 

    Nothing in this chapter may be construed to condone, 
 authorize, or approve mercy killing or euthanasia. 

    HIST: 1993 c 312 s 15 

     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. 

    HIST: 1993 c 312 s 16