Statutory Equivalent of Living Will or Declaration
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE MONTANA CODE ANNOTATED
DECLARATION
(§§ 50-9-103 through 50-9-206)
Section 50-9-103 (1), (4) and (5): Declaration relating to use of
life-sustaining treatment -- designee.
(1) An individual of sound mind
and 18 or more years of age may execute at any time a declaration governing
the withholding or withdrawal of life-sustaining treatment. The declarant
may designate another individual of sound mind and 18 or more years of
age to make decisions governing the withholding or withdrawal of life-sustaining
treatment. The declaration must be signed by the declarant, or another
at the declarant's direction, and witnessed by two individuals. A physician
or health care provider may presume, in the absence of actual notice to
the contrary, that the declaration complies with this chapter and is valid.
See Form.
(4) If the designation of an attorney-in-fact pursuant to 72-5-501
and 72-5-502, or the judicial appointment of an individual, contains written
authorization to make decisions regarding the withholding or withdrawal
of life-sustaining treatment, that designation or appointment constitutes,
for the purposes of this part, a declaration designating another individual
to act for the declarant pursuant to subsection (1).
(5) A physician or other health care provider who is furnished a
copy of the declaration shall make it a part of the declarant's medical
record and, if unwilling to comply with the declaration, promptly so advise
the declarant and any individual designated to act for the declarant.
Section 50-9-104:
(1) A declarant may revoke a declaration
at any time and in any manner, without regard to mental or physical condition.
A revocation is effective upon its communication to the attending physician
or other health care provider by the declarant or a witness to the revocation.
A health care provider or emergency medical services
personnel witnessing a revocation shall act upon the revocation
and shall communicate the revocation to the attending physician at the
earliest opportunity. A revocation communicated to a person other than
the attending physician, emergency medical services personnel, or a health
care provider is not effective unless the attending physician is informed
of it before the qualified patient is in need of life-sustaining treatment.
(2) The attending physician or other health care provider shall
make the revocation a part of the declarant's medical record.
Section 50-9-105:
1) A declaration becomes operative when:
(b) the declarant is determined by the
attending physician to be in a terminal condition and no longer able to
make decisions regarding administration of life-sustaining treatment.
(2) When the declaration becomes operative,
the attending physician and other health care providers shall act in accordance
with its provisions and with the instructions of a designee under 50-9-103(1)
or comply with the transfer requirements of 50-9-203.
Section 50-9-106: Consent by others to withholding or withdrawal
of treatment.
(1) If a written consent to the withholding or withdrawal
of the treatment, witnessed by two individuals, is given to the attending
physician, the attending physician may
withhold or withdraw life-sustaining treatment from an individual
who:
(a) has been determined by the attending
physician to be in a terminal condition and no longer able to make decisions
regarding administration of life-sustaining treatment; and
(2) The authority to consent or to withhold
consent under subsection (1) may be exercised by the following individuals,
in order of priority:
(b) an adult child of the individual or,
if there is more than one adult child, a majority of the adult children
who are reasonably available for consultation;
(d) an adult sibling of the individual
or, if there is more than one adult sibling, a majority of the adult siblings
who are reasonably available for consultation; or
(e) the nearest other adult relative of
the individual by blood or adoption who is reasonably available for consultation.
(3) If a class entitled to decide whether
to consent is not reasonably available for consultation and competent to
decide or if it declines to decide, the next class is authorized to decide.
However, an equal division in a class does not authorize the
next class to decide.
(4) A decision to grant or withhold consent
must be made in good faith. A consent is not valid if it conflicts with
the expressed intention of the individual.
(5) A decision of the attending physician
acting in good faith that a consent is valid or invalid is conclusive.
(6) Life-sustaining treatment cannot be
withheld or withdrawn pursuant to this section from an individual known
to the attending physician to be pregnant so long as it is probable that
the fetus will develop to the point of live birth with continued application
of life-sustaining treatment.
Section 50-9-107: When health care provider may presume
validity of declaration.
In the absence of knowledge to the contrary, a
physician or other health care provider may assume that a declaration complies
with this chapter and is valid.
Section 50-9-108: Effect of previous declaration.
An instrument
executed before October 1, 1991, that substantially complies with 50-9-103(1)
is effective under this chapter.
Section 50-9-111: Recognition of declarations executed in
other states.
A declaration executed in a manner substantially similar
to 50-9-103 in another state and in compliance with the law of that state
is effective for purposes of this chapter.
Section 50-9-201: Recording determination of terminal condition
and content of declaration.
Upon determining that a declarant is in a terminal
condition, the attending physician who knows of a declaration shall record
that determination and the terms of the declaration in the declarant's
medical record.
Section 50-9-202: Treatment of qualified patients.
(1) A
qualified patient may make decisions regarding life-sustaining treatment
so long as the patient is able to do so.
(2) This chapter does not affect the responsibility
of the attending physician or other health care provider to provide treatment,
including nutrition and hydration, for a patient's comfort care or alleviation
of pain.
(3) Life-sustaining treatment cannot be withheld
or withdrawn pursuant to a declaration from an individual known to the
attending physician to be pregnant so long as it is probable that the fetus
will develop to the point of live birth with continued application of life-sustaining
treatment.
Section 50-9-203: Transfer of patients.
An attending physician
or other health care provider who is unwilling to comply with this chapter
shall take all reasonable steps as promptly as practicable to transfer
care of the declarant to another physician or
health care provider who is willing to do so. If the policies of
a health care facility preclude compliance with the declaration of a qualified
patient under this chapter, that facility shall take all reasonable steps
to transfer the patient to a facility in which the provisions of this chapter
can be carried out.
Section 50-9-204:
(1) In the absence of actual notice of the
revocation of a declaration, the following, while acting in accordance
with the requirements of this chapter, are not subject to civil or criminal
liability or guilty of unprofessional conduct:
(a) a physician who causes the withholding
or withdrawal of life-sustaining treatment from a qualified patient;
(b) a person who participates in the withholding
or withdrawal of life-sustaining treatment under the direction or with
the authorization of a physician;
(c) emergency medical services personnel
who cause or participate in the withholding or withdrawal of life-sustaining
treatment under the direction of or with the authorization of a physician
or who on receipt of reliable documentation follow a
living will protocol;
(d) emergency medical services personnel
who proceed to provide life-sustaining treatment to a qualified patient
pursuant to a revocation communicated to them; and
(2) A physician or other health care provider
whose action under this chapter is in accord with reasonable medical standards
is not subject to civil or criminal liability or discipline for unprofessional
conduct with respect to that decision.
(3) A physician or other health care provider
whose decision about the validity of consent under 50-9-106 is made in
good faith is not subject to criminal or civil liability or discipline
for unprofessional conduct with respect to that decision.
(4) An individual designated pursuant
to 50-9-103(1) or an individual authorized to consent pursuant to 50-9-106,
whose decision is made or consent is given in good faith pursuant to this
chapter, is not subject to criminal or civil liability or discipline for
unprofessional conduct with respect to that decision.
Section 50-9-205:
(1) Death resulting from the withholding
or withdrawal of
life-sustaining treatment in accordance with this chapter does
not constitute, for any purpose, a suicide or homicide.
(2) The making of a declaration pursuant
to 50-9-103 does not affect the sale, procurement, or issuance of any policy
of life insurance or annuity, nor does it affect, impair, or modify the
terms of an existing policy of life insurance. A policy of
life insurance is not legally impaired or invalidated by the withholding
or withdrawal of life-sustaining treatment from an insured, notwithstanding
any term of the policy to the contrary.
(3) A person may not prohibit or require
the execution of a declaration as a condition for being insured for or
receiving health care services.
(4) This chapter creates no presumption
concerning the intention of an individual who has revoked or has not executed
a declaration with respect to the use, withholding, or withdrawal of life-sustaining
treatment in the event of a terminal condition.
(5) This chapter does not affect the right
of a patient to make decisions regarding use of life-sustaining treatment,
so long as the patient is able to do so, or impair or supersede a right
or responsibility that any person has to effect the withholding or
withdrawal of medical care.
(6) This chapter does not require a physician
or other health care provider to take action contrary to reasonable medical
standards.
(7) This chapter does not condone, authorize,
or approve mercy killing or euthanasia.
Section 50-9-206:
(1) A physician or other health care provider
who willfully fails to transfer the care of a patient in accordance with
50-9-203 is guilty of a misdemeanor punishable by a fine not to exceed
$500 or imprisonment in the county jail for a term not to exceed 1 year,
or both.
(2) A physician who willfully fails to
record the determination of terminal condition or the terms of a declaration
in accordance with 50-9-201 is guilty of a misdemeanor punishable by a
fine not to exceed $500 or imprisonment in the county jail for a term not
to exceed 1 year, or both.
(3) An individual who purposely conceals,
cancels, defaces, or obliterates the declaration of another without the
declarant's consent or who falsifies or forges a revocation of the declaration
of another is guilty of a misdemeanor punishable by a fine not to exceed
$500 or imprisonment in the county jail for a term not to exceed 1 year,
or both.
(4) An individual who falsifies or forges
the declaration of another individual or purposely conceals or withholds
personal knowledge of a revocation as provided in 50-9-104 is guilty of
a misdemeanor punishable by a fine not to exceed $500 or imprisonment in
the county jail for a term not to exceed 1 year, or both.
(5) A person who requires or prohibits
the execution of a declaration as a condition for being insured for or
receiving health care service is guilty of a misdemeanor punishable by
a fine not to exceed $500 or imprisonment in the county jail for a term
not to exceed 1 year, or both.
(6) A person who coerces or fraudulently
induces an individual to execute a declaration is guilty of a misdemeanor
punishable by a fine not to exceed $500 or imprisonment in the county jail
for a term not to exceed 1 year, or both.
(7) The penalties provided in this section
do not displace any sanction applicable under other law.
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