Advance Directive for Healthcare and Disposition of Remains
§ 9702. Advance directive
(a) An adult may do any or all of the following in an advance directive:
(1) except as provided in subsection (c), appoint one or more agents and alternate agents to whom authority to make health care decisions is delegated and specify the scope of such authority;
(2) affirm that the agent and alternate agents have been notified of and have accepted the appointment and will be given copies of the advance directive;
(3) specify a circumstance or condition, which may be unrelated to the principal's capacity, which, when met, makes the authority of an agent effective or ineffective, and may specify the manner in which the condition shall be determined to have been met;
(4) provide that the advance directive will become effective upon execution;
(5) direct the type of health care desired or not desired by the principal, which may include instructions regarding transfer from home, hospitalization, and specific treatments that the principal desires or rejects when being treated for a mental or physical condition or disability;
(6) execute a provision under subsection 9707(h) of this title which permits the agent to authorize or withhold health care over the principal's objection in the event the principal lacks capacity;
(7) direct which life sustaining treatments, as defined in subdivision 9701(19) of this title, whether emergency, short-term, or long-term, and including nutrition and hydration administered by medical means, are desired or not desired by the principal;
(8) direct which life sustaining treatment the principal would desire or not desire if the principal is pregnant at the time an advance directive becomes effective;
(9) identify those persons whom the principal does not want to serve as his or her decision-maker, or those adults or minors with whom the agent shall or shall not consult or to whom the agent is or is not authorized to provide information regarding the principal's health care;
(10) identify those individuals or entities, whether or not otherwise qualified to bring an action under section 9718 of this title, who shall or shall not have authority to bring an action under that section;
(11) authorize release to named individuals in addition to the agent of health information pursuant to HIPAA;
(12) provide any other direction that the principal desires to give regarding the principal's future health care or personal circumstances;
(13) identify a preferred clinician and affirm that the clinician has been notified;
(14) nominate one or more individuals to serve as the principal's guardian if a guardian should at some later time need to be appointed, or identify those individuals the principal does not want to serve as guardian;
(15) make, limit, or refuse to make an anatomical gift pursuant to chapter 110 of this title;
(16) direct the manner of disposition of the principal's remains and the funeral goods and services to be provided;
(17) identify a pre-need contract entered into with a funeral director, crematory, or cemetery; and
(18) except as provided in subsection (d) of this section, appoint an individual to make or refuse to make an anatomical gift, and to arrange for the disposition of the principal's remains, including funeral goods and services.
(b) The absence of an advance directive or of any specific instruction in an advance directive shall have no effect on determining the principal's intent or wishes regarding health care or any other matter.
(c) The principal's health care provider may not be the principal's agent. Unless related to the principal by blood, marriage, civil union, or adoption, an agent may not be an owner, operator, employee, agent, or contractor of a residential care facility, a health care facility, or a correctional facility in which the principal resides at the time of execution of an advance directive.
(d) Unless related to the principal by blood, marriage, civil union, or adoption, an individual may not exercise the authority pursuant to an advance directive for disposition of remains, anatomical gifts, or funeral goods and services while serving the interests of the principal in one of the following capacities:
(1) a funeral director or employee of the funeral director;
(2) a crematory operator or employee of the crematory operator;
(3) a cemetery official or employee of the cemetery; or
(4) an employee or representative of a procurement organization.
Cite as 18 V.S.A. § 9702
History. Amended by 2016, No. 136, §1, eff. 1/1/2018.
Added 2005, No. 55, §1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), §333; 2009, No. 119 (Adj. Sess.), §5.
§ 9703. Form and execution
(a) An adult with capacity may execute an advance directive at any time.
(b) The advance directive shall be dated, executed by the principal or by another individual in the principal's presence at the principal's express direction if the principal is physically unable to do so, and signed in the presence of two or more witnesses at least 18 years of age, who shall sign and affirm that the principal appeared to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed.
(c) Neither the agent appointed by the principal nor the principal's spouse , parent, adult sibling, adult child, or adult grandchild may witness the advance directive.
(d) An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a resident of a nursing home as defined in 33 V.S.A. § 7102 or a residential care facility unless an ombudsman, a patient representative, a recognized member of the clergy, an attorney licensed to practice in this State, or a Probate Division of the Superior Court designee signs a statement affirming that he or she has explained the nature and effect of the advance directive to the principal. It is the intent of this subsection to ensure that residents of nursing homes and residential care facilities are willingly and voluntarily executing advance directives.
(e) An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a patient in a hospital, unless an ombudsman, a patient representative, a recognized member of the clergy, an attorney licensed to practice in this State, a Probate Division of the Superior Court designee, or an individual designated under subsection 9709(c) of this title by the hospital signs a statement that he or she has explained the nature and effect of the advance directive to the principal.
(f) A durable power of attorney for health care, terminal care document, or advance directive executed prior to the enactment of this chapter shall be a valid advance directive if the document complies with the statutory requirements in effect at the time the document was executed or with the provisions of this chapter.
Cite as 18 V.S.A. § 9703
History. Amended by 2015, No. 23, §48, eff. 7/1/2015.
Amended by 2014, No. 192, §18, eff. 7/1/2014.
Added 2005, No. 55, §1, eff. Sept. 1, 2005; amended 2009, No. 154 (Adj. Sess.), §238a, effective February 1, 2011.
Note: This section is set out twice. See also § 9703, effective until 7/1/2015.
§ 9704. Amendment, suspension, and revocation
(a)
(1) A principal with capacity may amend, suspend, or revoke an advance directive or any specific instruction in an advance directive by executing a new advance directive or instruction pursuant to section 9703 of this title.
(2) A provision in a subsequently executed advance directive amends an earlier provision in an advance directive to the extent of any conflict between them.
(b)
(1) Except as provided in subdivision (3) of this subsection, a principal with or without capacity may suspend or revoke all or part of an advance directive, including the designation of an agent:
(A) by signing a statement suspending or revoking all or part of an advance directive;
(B) by personally informing the principal's clinician, who shall make a written record of the suspension or revocation in the principal's medical record; or
(C) by burning, tearing, or obliterating the advance directive, either by the principal personally or by another person at the principal's express direction and in the presence of the principal.
(2) Except as provided in subdivision (3) of this subsection, a principal with or without capacity may suspend or revoke any provision other than the designation of an agent, orally, in writing, or by any other act evidencing a specific intent to suspend or revoke.
(3) A provision in an advance directive executed pursuant to subsection 9707(h) of this title may be suspended or revoked only if the principal has capacity.
(4) To the extent possible, the principal shall communicate any suspension or revocation to the agent or other interested individual.
(c)
(1) A clinician, health care provider, health care facility, or residential care facility who becomes aware of an amendment, suspension, or revocation while treating an incapacitated principal shall make reasonable efforts to:
(A) confirm the amendment, suspension, or revocation;
(B) record the amendment, suspension, or revocation in the principal's medical record;
(C) flag the amendment, suspension, or revocation in the principal's medical record on the front of the medical folder or on the front of any advance directive filed in the medical record;
(D) notify the principal, agent, and guardian of the amendment, suspension, or revocation; and
(E) inform the registry of the amendment, suspension, or revocation.
(2) A clinician, health care provider, health care facility, or residential care facility who becomes aware of an amendment, suspension, or revocation while treating a principal with capacity shall comply with the following requirements:
(A) satisfy the requirements of subdivisions (1)(A), (B), and (C) of this subsection; and
(B) on request, assist the principal in notifying agents, guardians, interested individuals, and the registry.
(3) A health care provider, health care facility, or residential care facility not currently providing health or residential care to a principal who becomes aware of an amendment, suspension, or revocation shall ensure that the amendment, suspension, or revocation is recorded and flagged in the principal's medical record and is submitted to the registry.
(4) An agent or guardian who becomes aware of an amendment, suspension, or revocation shall make reasonable efforts to:
(A) confirm the amendment, suspension, or revocation;
(B) ensure that the amendment, suspension, or revocation is recorded in the principal's medical record; and
(C) provide notice of the amendment, suspension, or revocation to:
(i) the principal's clinician, health care provider, health care facility, or residential care facility;
(ii) any person designated in the advance directive to receive such notice;
(iii) any entity or individual known to hold a copy of the principal's advance directive; and
(iv) the registry, if the principal's advance directive has been submitted to the registry.
(d)
(1) The filing of an action or motion for annulment, divorce, dissolution of a civil union, legal separation, or an order for relief from abuse under chapter 21 of Title 15 or subchapter 2 of chapter 69 of Title 33 by, on behalf of, or against the principal suspends a previous designation of the spouse or other party opposing the principal in the action as agent unless otherwise specified in the advance directive, decree, or order of the court.
(2) A designation of agent suspended under subdivision (1) of this subsection shall no longer be in effect, and the agent shall be reinstated, upon the withdrawal of the action or motion for annulment, divorce, dissolution of civil union, legal separation, or order for relief from abuse, or upon the expiration of a temporary order for relief from abuse.
(3) A designation of agent suspended under subdivision (1) of this subsection shall become permanent when the annulment, divorce, dissolution of civil union, or legal separation becomes final, or when the motion for relief from abuse is granted.
(e) Unless otherwise provided for in an advance directive, each provision of an advance directive is severable from the other provisions in an advance directive if it can be given effect independently.
Cite as 18 V.S.A. § 9704
History. Added 2005, No. 55, §1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), §334.
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