DURABLE POWER OF ATTORNEY FOR HEALTH CARE

A document called a durable power of attorney for health care may be created to authorize another person (i.e., the attorney in fact) to make health care decisions for an individual who has lost the capacity to make informed health care decisions for himself or herself . The authorization may include the right to give informed consent, or to withdraw informed consent, to any health care that is being or could be provided. ORC § 1337.12 (A)

To be valid, the durable power of attorney for health care must be signed, dated, and witnessed, or acknowledged before a notary public. ORC § 1337.12 (B)

A durable power of attorney for health care may designate any competent adult as the attorney in fact except for a physician who is treating the individual, an employee or agent of the physician, or an employee or agent of any health care facility in which the individual is being treated. ORC § 1337.12 (A)

Unless the document specifies a shorter period of time, a durable power of attorney for health care expires seven years after the date of its execution. If the individual lacks the capacity to make informed health care decisions when the durable power of attorney for health care would expire, the document remains in effect until the individual regains the capacity to make informed health care decisions for himself. ORC § 1337.12 (A)

A person may revoke a durable power of attorney for health care by stating his intent orally or in writing, by destroying the document with the intent of revoking it, or by any means in which the person clearly communicates his intent to revoke it. If the person gives oral or written notice to his physician of the intent to revoke a durable power of attorney for health care, "the physician shall make the notification a part of the health care records of the principal." ORC § 1337.14

The durable power of attorney only becomes effective when the person who signed it (i.e., the principal) has lost the capacity to make informed health care decisions for himself. "In exercising his authority, the attorney in fact shall act consistently with the desires of the principal or, if the desires of the principal are unknown, shall act in the best interest of the principal." ORC § 1337.13

The attorney in fact does not have authority to withdraw informed consent to any health care to which the principal previously consented, unless a change in the person's physical condition has significantly decreased the benefit of the health care or the health care is no longer significantly effective in achieving its purposes. ORC § 1337.13 (F)

"Unless the right is limited in a durable power of attorney for health care...the attorney in fact has the same right as the principal to receive information about proposed health care, to review health care records, and to consent to the disclosure of health care records." ORC § 1337.13 (A)

An attorney in fact does not have authority to refuse or withdraw informed consent to health care that is necessary to maintain the life of the principal, unless the principal is in a terminal condition. ORC § 1337.13 (B)

An attorney in fact does not have authority to refuse or withdraw informed consent for nutrition or hydration unless all of the following apply:

• in the opinion of the attending physician and at least one other physician, nutrition or hydration would not provide comfort to the principal;
• in the opinion of the attending physician and at least one other physician, either the death of the principal is imminent whether or not nutrition or hydration is provided (and death would not likely result from malnutrition or dehydration) or the nutrition or hydration could not be assimilated by the principal or would shorten his life; and
• the attending physician and any other physicians involved enter their opinions into the principal's medical record. ORC § 1337.13 (E)

Except as provided above for nutrition and hydration, an attorney in fact does not have authority to refuse or withdraw informed consent to health care necessary to provide comfort care. ORC § 1337.13 (C)

An attorney in fact does not have the authority to refuse or withdraw informed consent to health care for a woman who is pregnant if the refusal or withdrawal of health care would terminate the pregnancy "unless the pregnancy or the health care would pose a substantial risk to the life of the principal, or unless the principal's attending physician and at least one other physician determine, to a reasonable degree of medical certainty, that the fetus would not be born alive." ORC § 1337.13 (D)

A physician is not subject to criminal prosecution or professional discipline, and is not liable in damages in a civil action for providing or for failing to withdraw health care that is necessary to keep the principal alive. ORC § 1337.15 (B) 
          No physician who refuses to comply with the instructions of an attorney in fact to withhold or withdraw health care necessary to keep the principal alive shall prevent or attempt to prevent the transfer of the principal to the care of a physician who is willing to comply with the instructions of the attorney in fact. ORC § 1337.16 (B)

"No physician, health care facility, other health care provider, (or) person authorized to engage in the business of insurance...shall require an individual to create or refrain from creating a durable power of attorney for health care as a condition of being admitted to a health care facility, being provided health care, being insured, or being the recipient of benefits." ORC § 1337.16 (A)

DURABLE POWER OF ATTORNEY FOR HEALTH CARE