Ohio Revocation of Statutory Equivalent of Living Will or Declaration

STATUTORY REFERENCE

ALL REFERENCES ARE TO THE OHIO REVISED CODE

REVOCATION OF DECLARATION CONCERNING THE USE OF LIFE SUSTAINING TREATMENT

(§§ 2133.01 through 2133.15 -Uniform Rights Of The Terminally Ill Act )

Selected Definitions

A "declarant" is any adult who has executed a declaration in accordance with the Uniform Rights Of The Terminally Ill Act.

A "declaration" is a written document executed in accordance with the statutory provisions of the Act.

A "durable power of attorney for health care" is a document created pursuant to sections §§ 1337.11 to 1337.17 of the Ohio Revised Code.

A "permanently unconscious state" is a state of permanent unconsciousness in a declarant (or other patient) that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the declarant's attending physician and one other physician who has examined the declarant, is characterized by both of the following:

• Irreversible unawareness of one's being and environment.

• Total loss of cerebral cortical functioning, resulting in the declarant or other patient having no capacity to experience pain or suffering.

A "Terminal condition" is an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a declarant's or other patient's attending physician and one other physician who has examined the declarant or other patient, both of the following apply:

• There can be no recovery.

• Death is likely to occur within a relatively short time if life sustaining treatment is not administered.

Requirements, Execution, and Effectuation of Declaration

An adult who is of sound mind may execute a declaration governing the use or continuation, or the withholding or withdrawal, of life sustaining treatment. The declaration must be signed by the declarant (or by another individual at the direction of the declarant), state the date of its execution, and either be witnessed or acknowledged by the declarant (see below) as provided in the Act.

The declaration may include a designation by the declarant of one or more persons who are to be notified by the declarant's attending physician at any time that life sustaining treatment would be withheld or withdrawn pursuant to the declaration and may include a specific authorization for the use or continuation or the withholding or withdrawal of CPR. The failure to include a specific authorization for the withholding or withdrawal of CPR does not preclude the withholding or withdrawal of CPR in accordance with the Act.

The declarant's declaration shall use either or both of the terms "terminal condition" and "permanently unconscious state" and shall define or otherwise explain those terms in capital letters and in a manner that is substantially consistent with the provisions of the Act.

If a declarant who has authorized the withholding or withdrawal of life sustaining treatment intends that the declarant's attending physician withhold or withdraw nutrition or hydration when the declarant is in a permanently unconscious state and when the nutrition and hydration will no longer will serve to provide comfort to the declarant or alleviate the declarant's pain, then the declarant shall authorize the declarant's attending physician to withhold or withdraw nutrition or hydration when the declarant is in the permanently unconscious state by doing both of the following in the declaration:

• Include a statement in capital letters that the declarant's attending physician may withhold or withdraw nutrition and hydration if the declarant is in a permanently unconscious state and if the declarant's attending physician and at least one other physician who has examined the declarant determine, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that nutrition or hydration will no longer serve to provide comfort to the declarant or alleviate the declarant's pain (or check or otherwise mark a box or line that is adjacent to a similar statement on a printed form of a declaration); and

• Place the declarant's initials or signature underneath or adjacent to the statement, check, or other mark described above.

A declaration becomes operative when it is communicated to the declarant's attending physician, that attending physician and one other physician who examines the declarant determine that the declarant is in a terminal condition or in a permanently unconscious state, and the attending physician determines that the declarant no longer is able to make informed decisions regarding the administration of life sustaining treatment.

In order for a declaration to become operative in connection with a declarant who is in a permanently unconscious state, the consulting physician associated with the determination that the declarant is in the permanently unconscious state must be a physician who is qualified to determine whether the declarant is in a permanently unconscious state.

In order for a declaration to become operative in connection with a declarant who is in a terminal condition or in a permanently unconscious state, the attending physician of the declarant must determine, in good faith and to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that there is no reasonable possibility that the declarant will regain the capacity to make informed decisions regarding the administration of life sustaining treatment.

Witnesses

A declaration must be witnessed by two individuals in whose presence the declarant (or another individual at the direction of the declarant) signed the declaration or must be acknowledged.

The witnesses to a declaration must be adults who are not related to the declarant by blood, marriage, or adoption, who are not the attending physician of the declarant, and who are not the administrator of any nursing home in which the declarant is receiving care.

Each witness must sign the declaration and attest to the witness' belief that the declarant appears to be of sound mind and not under or subject to duress, fraud, or undue influence.

If the declaration is acknowledged, that acknowledgment must be before a notary public, who must make the statutorily prescribed certification.

The notary must certify that:

• The person acknowledging appeared before him and acknowledged he executed the instrument; and

• The person acknowledging was known to the person taking the acknowledgment, or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.

Conflicts Between Durable Power of Attorney and Declaration

If a declarant has both a valid durable power of attorney for health care and a valid declaration, the declaration supersedes the durable power of attorney for health care to the extent that the provisions of the documents would conflict if the declarant should be in a terminal condition or in a permanently unconscious state.

Revocation

A declarant may revoke a declaration at any time and in any manner.

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