Revocation of Advanced Health Care Directive
MISSISSIPPI LAW SUMMARIES
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REVOCATION OF ADVANCE HEALTH CARE DIRECTIVE
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE MISSISSIPPI STATUTES
REVOCATION OF ADVANCE HEALTH CARE DIRECTIVE
(§§ 41-41-201 through 41-41-229)
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Sections 41-41-201 through 41-41-229 may be cited as the "Uniform
Health-Care Decisions Act."
Section 41-41-203: For purposes of Chapter 41 of Title 41,
Mississippi Code of 1972, the following words shall have the meaning ascribed
in this section unless the context shall otherwise require:
(a) "Adult" means an individual who is eighteen (18) years
of age or older.
(b) "Advance health-care directive" means an individual instruction
or a power of attorney for health care.
(c) "Agent" means an individual designated in a power of attorney
for health care to make a health-care decision for the individual granting
the power.
(d) "Capacity" means an individual's ability to understand
the significant benefits, risks, and alternatives to proposed health care
and to make and communicate a health-care decision.
(e) "Emancipated minor" means an individual under the age
of eighteen (18) years who:
(i) Is or has been married;
(ii) Has been adjudicated generally emancipated by a court
of competent jurisdiction; or
(iii) Has been adjudicated emancipated for the purpose of
making health-care decisions by a court of competent jurisdiction.
(f) "Guardian" means a judicially appointed guardian or conservator
having authority to make a health-care decision for an individual.
(g) "Health care" means any care, treatment, service, or procedure
to maintain,diagnose, or otherwise affect an individual's physical or mental
condition.
(h) "Health-care decision" means a decision made by an individual
or the individual's agent, guardian, or surrogate, regarding the individual's
health care,including:
(i) Selection and discharge of health-care providers and institutions;
(ii) Approval or disapproval of diagnostic tests, surgical
procedures, programs of medication, and orders not to resuscitate; and
(iii) Directions to provide, withhold or withdraw artificial
nutrition and hydration and all other forms of health care.
The phrase "health-care decision" does not include decisions
made pursuant to Sections 41-39-31 through 41-39-51, the "Anatomical Gift
Law."
(i) "Health-care institution" means an institution, facility,
or agency licensed, certified, or otherwise authorized or permitted by
law to provide health care in the ordinary course of business.
(j) "Health-care provider" means an individual licensed, certified,
or otherwise authorized or permitted by law to provide health care in the
ordinary course of business or practice of a profession.
(k) "Individual instruction" means an individual's direction
concerning a health-care decision for the individual.
(l) "Person" means an individual, corporation, business trust,
estate, trust,partnership, association, joint venture, government, governmental
subdivision,agency,
or instrumentality, or any other legal or commercial entity.
(m) "Physician" means an individual authorized to practice
medicine or osteopathy under Title 73, Chapter 25, Mississippi Code of
1972.
(n) "Power of attorney for health care" means the designation
of an agent to make health-care decisions for the individual granting the
power.
(o) "Primary physician" means a physician designated by an
individual or the individual's agent, guardian, or surrogate, to have primary
responsibility for the individual's health care or, in the absence of a
designation or if the designated physician is not reasonably available,
a physician who undertakes the responsibility.
(p) "Reasonably available" means readily able to be contacted
without undue effort and willing and able to act in a timely manner considering
the urgency of the patient's health-care needs.
(q) "State" means a state of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, or a territory or insular
possession subject to the jurisdiction of the United States.
(r) "Supervising health-care provider" means the primary physician
or, if there is no primary physician or the primary physician is not reasonably
available,the health-care provider who has undertaken primary responsibility
for an individual's health care.
(s) "Surrogate" means an individual, other than a patient's
agent or guardian, authorized under Sections 41-41-201 through 41-41-229
to make a health-care decision for the patient.
Section 41-41-205: Individual instructions; power of
attorney; decisions by primary physician; agents; guardians; validity.
(1) An adult or emancipated minor may give an individual instruction.
The instruction may be oral or written. The instruction may be limited
to take effect only if a specified condition arises.
(2) An adult or emancipated minor may execute a power
of attorney for health care, which may authorize the agent to make any
health-care decision the principal could have made while having capacity.
The power remains in effect notwithstanding the principal's later incapacity
and may include individual instructions. Unless related to the principal
by blood, marriage, or adoption, an agent may not be an owner, operator,
or employee of a residential long-term health-care institution at which
the principal is receiving care. The power must be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one (1) of the following methods:
(a) Be signed by at least two (2) individuals each of whom
witnessed either the signing of the instrument by the principal or the
principal's acknowledgement of the signature or of the instrument. See
Form.
(3) None of the following may be used as witness for a power
of attorney for health care:
(a) A health-care provider;
(b) An employee of a health-care provider or facility; or
(c) The agent.
(4) At least one (1) of the individuals used as a witness
for a power of attorney for health care shall be someone who is neither:
(a) A relative of the principal by blood, marriage or adoption;
nor
(b) An individual who would be entitled to any portion of
the estate of the principal upon his or her death under any will or codicil
thereto of the principal existing at the time of execution of the power
of attorney for health care or by operation of law then existing.
(5) Unless otherwise specified in a power of attorney
for health care, the authority of an agent becomes effective only upon
a determination that the principal lacks capacity, and ceases to be effective
upon a determination that the principal has recovered capacity.
(6) Unless otherwise specified in a written advance
health-care directive, a determination that an individual lacks or has
recovered capacity, or that another condition exists that affects an individual
instruction or the authority of an agent, must be made by the primary physician.
(7) An agent shall make a health-care decision in accordance
with the principal's individual instructions, if any, and other wishes
to the extent known to the agent. Otherwise, the agent shall make the decision
in accordance with the agent's determination of the principal's best interest.
In determining the principal's best interest, the agent shall consider
the principal's personal values to the extent known to the agent.
(8) A health-care decision made by an agent for a principal
is effective without judicial approval.
(9) A written advance health-care directive may include
the individual's nomination of a guardian of the person.
(10) An advance health-care directive is valid for purposes
of Sections 41-41-201 through 41-41-229 if it complies with Sections 41-41-201
through 41-41-229, regardless of when or where executed or communicated.
Section 41-41-207:(1) An individual may revoke
the designation of an agent only by a signed writing or by personally
informing the supervising health-care provider.
(2) An individual may revoke all or part of an advance
health-care directive,other than the designation of an agent, at any time
and in any manner that communicates an intent to revoke.
(3) A health-care provider, agent, guardian, or surrogate
who is informed of a revocation shall promptly communicate the fact of
the revocation to the supervising health-care provider and to any health-care
institution at which the patient is receiving care.
(4) A decree of annulment, divorce, dissolution of marriage,
or legal separation revokes a previous designation of a spouse as agent
unless otherwise specified in the decree or in a power of attorney for
health care.
(5) An advance health-care directive that conflicts
with an earlier advance health-care directive revokes the earlier directive
to the extent of the conflict.
Section 41-41-209: The following form may be used to
create an advance health-care directive. Sections 41-41-201 through 41-41-207
and 41-41-211 through 41-41-229 govern the effect of this or any other
writing used to create an advanced health-care directive.
Section 41-41-211:(1) A surrogate may make a health-care
decision for a patient who is an adult or emancipated minor if the patient
has been determined by the primary physician to lack capacity and no agent
or guardian has been appointed or the agent or guardian is not reasonably
available.
(2) An adult or emancipated minor may designate any
individual to act as surrogate by personally informing the supervising
health-care provider. In the absence of a designation, or if the designee
is not reasonably available, any member of the following classes of the
patient's family who is reasonably available, in descending order of priority,
may act as surrogate:
(a) The spouse, unless legally separated;
(b) An adult child;
(c) A parent; or
(d) An adult brother or sister.
(3) If none of the individuals eligible to act as surrogate
under subsection (2)is reasonably available, an adult who has exhibited
special care and concernfor the patient, who is familiar with the patient's
personal values, and who is reasonably available may act as surrogate.
(4) A surrogate shall communicate his or her assumption
of authority as promptly as practicable to the members of the patient's
family specified in subsection (2) who can be readily contacted.
(5) If more than one (1) member of a class assumes authority
to act as surrogate, and they do not agree on a health-care decision and
the supervising health-care provider is so informed, the supervising health-care
provider shall comply with the decision of a majority of the members of
that class who have communicated their views to the provider. If the class
is evenly divided concerning the health-care decision and the supervising health-care provider is so informed, that class and all individuals having lower priority are disqualified from making the decision.
(6) A surrogate shall make a health-care decision in
accordance with the patient's individual instructions, if any,and other
wishes to the extent known to the surrogate. Otherwise, the surrogate shall
make the decision in accordance with the surrogate's determination of the
patient's best interest. In determining the patient's best interest, the
surrogate shall consider the patient's personal values to the extent known
to the surrogate.
(7) A health-care decision made by a surrogate for a
patient is effective without judicial approval.
(8) An individual at any time may disqualify another,
including a member of the individual's family, from acting as the individual's
surrogate by a signed writing or by personally informing the supervising
health-care provider of the disqualification.
(9) A surrogate may not be an owner, operator, or employee
of a residential long-term health-care institution at which the patient
is receiving care unless related to the patient by blood, marriage, or
adoption, except in the case of a patient of a state-operated facility
who has no person listed in subsection (2)
reasonably available to act as a surrogate.
(10) A supervising health-care provider may require
an individual claiming the right to act as surrogate for a patient to provide
a written declaration under penalty of perjury stating facts and circumstances
reasonably sufficient to establish the claimed authority.
Section 41-41-213: (1) A guardian shall comply
with the ward's individual instructions and may not revoke the ward's advance
health-care directive unless the appointing court expressly so authorizes.
(2) Absent a court order to the contrary, a health-care
decision of an agent takes precedence over that of a guardian.
(3) A health-care decision made by a guardian for the
ward is effective without judicial approval.
Section 41-41-215:(1) Before implementing a health-care
decision made for a patient, a supervising health-care provider, if possible,
shall promptly communicate to the patient the decision made and the identity
of the person making the decision.
(2) A supervising health-care provider who knows of
the existence of an advance health-care directive, a revocation of an advance
health-care directive, or a designation or disqualification of a surrogate,
shall promptly record its existence in the patient's health-care record
and, if it is in writing, shall request a copy and if one is furnished
shall arrange for its maintenance in the health-care record.
(3) A primary physician who makes or is informed of
a determination that a patient lacks or has recovered capacity, or that
another condition exists which affects an individual instruction or the
authority of an agent, guardian, or surrogate, shall promptly record the
determination in the patient's health-care record and communicate the determination
to the patient, if possible, and to any person then authorized to make
health-care decisions for the patient.
(4) Except as provided in subsections (5) and (6), a
health-care provider or institution providing care to a patient shall:
(a) Comply with an individual instruction of the patient and
with a reasonable interpretation of that instruction made by a person then
authorized to make health-care decisions for the patient; and
(b) Comply with a health-care decision for the patient made
by a person then authorized to make health-care decisions for the patient
to the same extent as if the decision had been made by the patient while
having capacity.
(5) A health-care provider may decline to comply with
an individual instruction or health-care decision for reasons of conscience.
A health-care institution may decline to comply with an individual instruction
or health-care decision if the instruction or decision is contrary to a
policy of the institution which is expressly based on reasons of conscience
and if the policy was timely communicated to the patient or to a person
then authorized to make health-care decisions for the patient.
(6) A health-care provider or institution may decline
to comply with an individual instruction or health-care decision that requires
medically ineffective health care or health care contrary to generally
accepted health-care standards applicable to the health-care provider or
institution.
(7) A health-care provider or institution that declines
to comply with an individual instruction or health-care decision shall:
(a) Promptly so inform the patient, if possible, and any person
then authorized to make health-care decisions for the patient;
(b) Provide continuing care to the patient until a transfer
can be effected; and
(c) Unless the patient or person then authorized to make health-care
decisions for the patient refuses assistance, immediately make all reasonable
efforts to assist in the transfer of the patient to another health-care
provider or institution that is willing to comply with the instruction
or decision.
(8) A health-care provider or institution may not require
or prohibit the execution or revocation of an advance health-care directive
as a condition for providing health care.
(9) If the patient who is an adult or emancipated minor
has been determined by the primary physician to lack capacity to make a
health-care decision and an agent, guardian or surrogate is not reasonably
available, consent may be given by an owner, operator or employee of a
residential long-term health care institution at which the patient is a
resident if there is no advance health-care directive to the contrary and
a licensed physician who is not an owner, operator or employee of the residential
long-term health care institution at which the patient is a resident has
determined that the patient is in need of health care. This power to consent
is limited to the terms of this subsection (9) and shall not be construed
to repeal or otherwise affect the prohibition of Section
41-41-211(9) relating to owners, operators, or employees of long-term
health care institutions. The consent given pursuant to this subsection
shall be limited to the health care services determined necessary by the
licensed physician and shall in no event include the power to consent to
or direct withholding or discontinuing any life support, nutrition, hydration
or other treatment, care or support. When consent is obtained under this
subsection, compliance with these requirements shall be stated in the patient's
health-care record.
Section 41-41-217: Unless otherwise specified in an
advance health-care directive, a person then authorized to make health-care
decisions for a patient has the same rights as the patient to request,
receive, examine, copy and consent to the disclosure of medical or any
other health-care information.
Section 41-41-219: (1) A health-care provider
or institution acting in good faith and in accordance with generally
accepted health-care standards applicabl to the health-care provider
or institution is not subject to civil or criminal liability or to discipline
for unprofessional conduct for:
(a) Complying with a health-care decision of a person apparently
having authority to make a health-care decision for a patient, including
a decision to withhold or withdraw health care;
(b) Declining to comply with a health-care decision of a person
based on a belief that the person then lacked authority; or
(c) Complying with an advance health-care directive and assuming
that the directive was valid when made and has not been revoked or terminated.
(2) An individual acting as agent or surrogate under
Sections 41-41-201 through 41-41-229 is not subject to civil or criminal
liability or to discipline for unprofessional conduct for health-care decisions
made in good faith.
Section 41-41-221: (1) A health-care provider
or institution that intentionally violates Sections 41-41-201 through 41-41-229
is subject to liability to the aggrieved individual for damages of Five
Hundred Dollars
($500.00) or actual damages resulting from the violation, whichever
is greater, plus reasonable attorney's fees.
(2) A person who intentionally falsifies, forges, conceals,
defaces, or obliterates an individual's advance health-care directive or
a revocation of an advance health-care directive without the individual's
consent, or who coerces or fraudulently induces an individual to give,
revoke, or not to give an advance health-care directive, is subject to
liability to that individual for damages of Twenty-five Hundred Dollars
($2,500.00) or actual damages resulting from the action, whichever is greater,
plus reasonable attorney's fees.
Section 41-41-223: (1) Sections 41-41-201 through
41-41-229 do not affect the right of an individual to make health-care
decisions while having capacity to do so.
(2) An individual is presumed to have capacity to make
a health-care decision, to give or revoke an advance health-care directive,
and to designate or disqualify a surrogate.
Section 41-41-225: A copy of a written advance health-care
directive, revocation of an advance health-care directive, or designation
or disqualification of a surrogate has the same effect as the original.
Section 41-41-227:(1) Sections 41-41-201 through
41-41-229 do not create a presumption concerning the intention of an individual
who has not made or who has revoked an advance health-care directive.
(2) Death resulting from the withholding or withdrawal
of health care in accordance with Sections 41-41-201 through 41-41-229
does not for any purpose constitute a suicide or homicide or legally impair
or invalidate a policy of insurance or an annuity providing a death benefit,
notwithstanding any term of the policy or annuity to the contrary.
(3) Sections 41-41-201 through 41-41-229 do not authorize
mercy killing, assisted suicide, euthanasia, or the provision, withholding,
or withdrawal of health care, to the extent prohibited by other statutes
of this state.
(4) Sections 41-41-201 through 41-41-229 do not authorize
or require a health-care provider or institution to provide health care
contrary to generally accepted health-care standards applicable to the
health-care provider or institution.
(5) Sections 41-41-201 through 41-41-229 do not authorize
an agent or surrogate to consent to the admission of an individual to a
mental health-care institution unless the individual's written advance
health-care directive expressly so provides.
(6) Sections 41-41-201 through 41-41-229 do not affect
other
statutes of this state governing treatment for mental illness of an individual
involuntarily committed to a mental health-care institution.
(7) Sections 41-41-201 through 41-41-229 do not apply
to Sections 41-41-31 through 41-41-39, which govern the performance of
abortions, or Sections 41-41-51 through 41-41-63, which govern the performance
of abortions upon
minors.
Section 41-41-229: On petition of a patient, the patient's
agent, guardian, or surrogate, a health-care provider or institution involved
with the patient's care, or an individual described in Section 41-41-211(2)
or (3), any court of competent jurisdiction may enjoin or direct a health-care
decision or order other equitable relief. A proceeding under this section
shall be governe by the Mississippi Rules of Civil Procedure.
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