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ENGROSSED SUBSTITUTE SENATE BILL 6589
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State of Washington 57th Legislature 2002 Regular Session
By Senate Committee on Human Services & Corrections (originally sponsored by Senators Keiser and Long)
READ FIRST TIME 02/08/2002.
AN ACT Relating to mental health advance directives; amending RCW 11.94.010, 11.88.010, 11.88.030, and 7.70.065; adding a new chapter to Title 71 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. The legislature declares that a person with capacity has the ability to control decisions relating to his or her own mental health care. The legislature recognizes that a mental health advance directive can be an essential tool for a person to express his or her choices before the effects of mental illness deprive the person of the power to express his or her instructions and preferences for mental health treatment. The legislature affirms that, pursuant to other provisions of law, a mental health advance directive created under this chapter is to be respected by health care providers and mental health professionals, guardians, attorneys-in-fact, and other surrogate decision makers acting on behalf of the person who created it.
NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Adult" means any person who has attained the age of majority as defined in RCW 26.28.010 or an emancipated minor.
(2) "Agent" means an attorney-in-fact or agent as provided in chapter 11.94 RCW and shall include any alternative agent appointed.
(3) "Court" means a superior court under chapter 2.08 RCW.
(4) "Health care information" has the meaning in RCW 70.02.010 and includes mental health, sexually transmitted diseases and human immunodeficiency virus/AIDS, and alcohol and substance abuse information.
(5) "Health care provider" means a person licensed under chapter 18.57, 18.57A, 18.71, or 18.71A RCW or RCW 18.79.050.
(6) "Incapacitated person" or "incapacitated" means a person who is not a person with capacity.
(7) "Informed consent" means consent that conforms to the elements of RCW 7.70.060.
(8) "Mental disorder" has the meaning given in RCW 71.05.020.
(9) "Mental health advance directive" or "directive" means a written document in which the person makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the person regarding the person's mental health treatment and that is consistent with the provisions of this chapter.
(10) "Mental health professional" has the meaning given in RCW 71.05.020.
(11) "Person with capacity" means an adult who is able to give informed consent under RCW 7.70.065.
(12) "Professional person" has the meaning given in RCW 71.05.020.
NEW SECTION. Sec. 3. (1) For the purposes of this chapter, an adult is presumed to be a person with capacity.
(2) For the purposes of this chapter, no adult may be declared an incapacitated person except by:
(a) A court order;
(b) One mental health professional and one health care provider; or
(c) Two health care providers.
(3) When a court has found that the person is a person with capacity and there is a subsequent change in the person's condition, subsequent determinations whether the person is incapacitated may be made by any of the provisions of subsection (2) of this section.
(4)(a) A principal, agent, professional person, or health care provider may seek a determination whether the principal is incapacitated.
(b) The determination shall be made within forty-eight hours of the request for a determination. If no determination has been made within forty-eight hours, the principal shall be considered to have been a person with capacity at the time in question.
NEW SECTION. Sec. 4. (1) A person with capacity may create a mental health advance directive.
(2) A declaration executed in accordance with this chapter is presumed to be valid. The inability to honor one or more provisions of a directive does not affect the validity of the remaining conditions.
(3) A directive may include any provision relating to mental health treatment or the care of the person or the person's personal affairs. Without limitation, a directive may include:
(a) The person's preferences and instructions for mental health treatment;
(b) Consent to specific types of mental health treatment;
(c) Refusal to consent to specific types of mental health treatment;
(d) Consent to admission to and retention in a facility for mental health treatment;
(e) Descriptions of situations that may cause the person to experience a mental health crisis;
(f) Suggested alternative responses that may supplement or be in lieu of direct mental health treatment, such as treatment approaches from other providers;
(g) Appointment of an agent to make mental health treatment decisions on the person's behalf, including authorizing the agent to provide consent on the person's behalf to voluntary admission to inpatient mental health treatment consistent with section 8 of this act and to consent to or authorize the uses and disclosures in (h) and (i) of this subsection;
(h) Consent to release of the person's health care information used for purposes of treatment, payment, and operations;
(i) Authorization to have the person's health care information released to third parties; and
(j) The person's nomination of a guardian or limited guardian for consideration by the court if guardianship proceedings are commenced.
(4)(a) A directive may be combined with or be independent of the power of attorney authorized in chapter 11.94 RCW or guardianship authorized in chapter 11.88 RCW, so long as the processes for each are executed in accordance with its own statutes.
(b) Unless provided otherwise in either document, the directive or power of attorney most recently created shall be construed to be the person's mental health treatment preferences and instructions.
(c) Where a directive executed under this chapter is inconsistent with a directive executed under chapter 70.122 RCW, the most recently created directive controls as to the inconsistent provisions.
NEW SECTION. Sec. 5. (1) A directive shall:
(a) Be in writing;
(b) Contain language that clearly indicates that the person intends to create a directive;
(c) Be dated and signed by the person; and
(d) Be witnessed in writing by at least two adults, each of whom shall certify that he or she personally knows the person, was present when the person dated and signed the directive, and that the person did not appear to be an incapacitated person or acting under fraud, undue influence, or duress.
(2) A witness may not be any of the following:
(a) A person designated to make health care decisions on the person's behalf;
(b) A health care provider or professional person directly involved with the provision of care to the person at the time the directive is executed;
(c) An owner, operator, employee, or relative of an owner or operator of a health care facility or long-term care facility in which the person is a patient or resident;
(d) A person who is related by blood, marriage, or adoption to the person or with whom the person has a dating relationship, as defined in RCW 26.50.010;
(e) A person who is declared to be an incapacitated person;
(f) A person who would benefit financially if the person making the directive undergoes mental health treatment; or
(g) A minor.
(3) A directive may:
(a) Become operative upon execution or at a later time as designated in the directive;
(b) Be revoked, in whole or in part, by the person who created it;
(c) Be revoked, in whole or in part, expressly or to the extent of any inconsistency, by a subsequent directive;
(d) Expire under its own terms;
(e) Be superseded or revoked by a court order, including a criminal sentence. To the extent a directive is not in conflict with a court order, the directive remains effective. A declaration shall not be interpreted in a manner that interferes with incarceration or detention by the department of corrections, a city or county jail, or the juvenile rehabilitation administration or with supervision of a person who is subject to involuntary treatment pursuant to chapter 10.77, 70.96A, 71.05, 71.09, or 71.34 RCW.
(4) A directive may not:
(a) Create an entitlement to treatment;
(b) Obligate any health care provider to pay the costs associated with the treatment requested; or
(c) Obligate any health care provider to be responsible for the nontreatment personal care of the person or the person's personal affairs; or
(d) Be revoked by an incapacitated person.
(5) A directive that would have otherwise expired but is operative because the person is an incapacitated person remains operative until the person is no longer an incapacitated person.
NEW SECTION. Sec. 6. (1) If a directive authorizes the appointment of an agent, the provisions of chapter 11.94 RCW and RCW 7.70.065 shall apply unless otherwise stated in this chapter.
(2) An agent must act in good faith.
(3) An agent who has accepted the appointment in writing may make decisions on behalf of the principal only pursuant to the terms of the directive. The decisions must be consistent with the instructions and preferences the principal has expressed in the directive, or if not expressed, as otherwise known to the agent. If the principal's instructions or preferences are not known, the agent shall make the decision he or she, in good faith, determines the principal would make if capable to do so.
(4) The agent has the same right as the person to receive, review, and authorize the release of the person's health care information when the agent is acting on behalf of the principal and to the extent required for the agent to carry out his or her duties. This subsection shall be construed to be consistent with chapters 70.02, 70.24, 70.96A, 71.05, and 71.34 RCW, and with federal law regarding health care information.
(5) Unless otherwise provided in the directive and agreed to in writing by the agent, the agent is not, as a result of acting in the capacity of agent, personally liable for the cost of treatment provided to the principal.
(6) An agent may not use or threaten physical force, abuse, neglect, financial exploitation, or abandonment of the principal, as those terms are defined in RCW 74.34.020, to enforce or carry out the directive.
NEW SECTION. Sec. 7. (1)(a) Upon receiving a directive, a health care provider or professional person treating the person, or personnel acting under the direction of the health care provider or professional person, shall make the directive a part of the person's medical record and shall be deemed to have actual knowledge of the directive's contents. Whenever possible, the health care provider or professional person shall inform a person or the person's agent if he or she may be precluded from honoring all or part of the directive based on the reasons in subsection (2) of this section.
(b) If no physician-patient relationship has previously been established, nothing in this statute requires the establishment of a physician-patient relationship.
(2)(a) A health care provider or professional person who has been presented with or has obtained a person's directive and who is treating the person shall act in accordance with the provisions of the directive to the fullest extent possible unless, in the determination of the health care provider or professional person:
(i) Compliance with the provision would violate the accepted standard of care established in RCW 7.70.040;
(ii) The requested treatment is not available;
(iii) Compliance with the provision would violate applicable law;
(iv) It is an emergency situation and compliance would endanger any person's life or health; or
(v) The principal, without the benefit of the specific treatment measure, is incapable of participating in any available treatment plan that will give the principal a realistic opportunity of improving his or her condition.
If the health care provider or professional person is at any time unable to comply, the health care provider or professional person shall offer to withdraw from treating the person unless no other treatment provider is reasonably available. A health care provider or professional person who withdraws shall promptly notify the principal and the agent, if any, and shall document the notification in the principal's medical record.
(b) If the person consents in the directive to having his or her health care information released to other providers or third parties, or provides for an agent who authorizes such disclosure, the professional person's disclosure of health care information shall not be a violation of chapter 70.02 RCW.
(3) The health care provider or professional person shall obtain the person's informed consent regarding all mental health treatment decisions unless the person has waived the right to informed consent.
(4) Treatment under chapters 71.05 and 71.34 RCW shall be provided pursuant to the provisions of those chapters. A professional person who is treating a person involuntarily detained or committed under chapter 71.05 or 71.34 RCW shall act in accordance with the provisions of the person's directive to the fullest extent possible and as permitted by the applicable involuntary treatment laws, consistent with accepted standard of care and the availability of treatment.
(5) For purposes of this section, "accepted standard of care" is the standard established in RCW 7.70.040.
NEW SECTION. Sec. 8. (1) If a principal consents in his or her directive, or authorizes an agent to consent on the principal's behalf, to voluntary admission to inpatient mental health treatment, and at the time of admission the principal refuses treatment, the principal may only be admitted to inpatient psychiatric treatment if a physician member of the treating facility's professional staff:
(a) Evaluates the principal's mental condition, including a review of reasonably available psychiatric and psychological history, diagnosis, and treatment needs, and determines, in conjunction with another health care provider or mental health professional, that the principal is incapacitated;
(b) Obtains the informed consent of the agent, if any, designated in the directive;
(c) Makes a written determination that the principal needs an inpatient evaluation or is in need of inpatient treatment and that the evaluation or treatment cannot be accomplished in a less restrictive setting; and
(d) Documents in the principal's medical chart a summary of the physician's findings and recommendations for treatment.
(2) In the event the admitting physician is not a psychiatrist, the principal shall receive a complete psychological assessment by a mental health professional within twenty-four hours of admission to determine the continued need for inpatient evaluation or treatment.
(3)(a) A person authorized in section 3 of this act may seek a determination of the person's capacity to revoke. If it is determined that the person has the capacity to revoke, then the person's refusal of voluntary admission shall be a revocation of that provision of the directive.
(b) If a person who is determined by two health care providers or one mental health professional and one health care provider to lack the capacity to revoke the directive, the person may immediately seek injunctive relief for release from the facility. The sole issue to be decided is the person's capacity to revoke the directive.
(4) If, after a seventy-two hour period, the principal has not regained capacity or has regained capacity but refuses to consent to remain for additional treatment, the principal must be released during reasonable daylight hours, unless detained under chapter 70.96A, 71.05, or 71.34 RCW.
(5) Any principal who is voluntarily admitted to inpatient mental health treatment under this chapter, or who consents to remain for additional treatment after the initial seventy-two hour period, shall have all the rights provided to individuals who are voluntarily admitted to inpatient treatment under chapter 71.05, 71.34, or 72.23 RCW. The continuing need for treatment of a principal who consents to remain for additional treatment under this chapter shall be reviewed by the professional staff of the treating facility, and the person's agent if any, at least as frequently as set forth for voluntary patients under chapter 71.05, 71.34, or 72.23 RCW.
NEW SECTION. Sec. 9. A person with capacity may revoke a directive in whole or in part by written statement at any time. The notice need not follow any specific form so long as it is written and the intent of the principal can be discerned. The written statement of revocation is effective when signed by the person and delivered to the agent, if one is appointed, and the health care provider or professional person who is responsible for the delivery of mental health treatment to the person. The health care provider or professional person shall make the revocation part of the person's medical record.
NEW SECTION. Sec. 10. (1) For the purposes of this section, "provider" means a private or public agency, government entity, health care provider, professional person, person acting under the direction of a health care provider or professional person, health care facility, or long-term care facility.
(2) A provider is not subject to civil liability or professional conduct sanctions when, in good faith:
(a) The provider provides treatment to a principal in the absence of actual knowledge of the existence of a directive, or provides treatment pursuant to a directive in the absence of actual knowledge of the revocation of the directive, unless the absence of actual knowledge resulted from the negligence of the provider;
(b) A health care provider or mental health professional determines in good faith that the principal is or is not incapacitated for the purpose of deciding whether to proceed or not to proceed according to a directive, and acts upon that determination;
(c) The provider administers or does not administer mental health treatment according to the principal's directive in good faith reliance upon the validity of the directive and the directive is subsequently found to be invalid;
(d) The provider does not provide treatment according to the directive for one of the reasons authorized under section 7 of this act; or
(e) The provider provides treatment according to the principal's directive.
NEW SECTION. Sec. 11. Any person with good reason to believe that a directive has been created or revoked under circumstances amounting to fraud, duress, or undue influence, may petition the court for appointment of a guardian for the person or to review the actions of the agent or person alleged to be involved in the improper conduct under RCW 11.94.090 or 74.34.110.
NEW SECTION. Sec. 12. The fact that a person has executed a directive does not constitute an indication of mental disorder or that the person is not capable of providing informed consent.
NEW SECTION. Sec. 13. A person shall not be required to execute or to refrain from executing a directive as a criterion for insurance, as a condition for receiving mental or physical health services, or as a condition of admission or discharge from a health care facility or long-term care facility.
NEW SECTION. Sec. 14. A directive does not limit any authority otherwise provided in Title 71 or 10 RCW, or any other applicable state or federal laws to detain a person, take a person into custody, or to admit, retain, or treat a person in a health care facility.
NEW SECTION. Sec. 15. Where a person consents in a directive, or authorizes his or her agent to consent to electroconvulsive therapy, the professional person must document, in the person's medical record, the reasons the professional person elected to use electroconvulsive therapy.
NEW SECTION. Sec. 16. The directive may, but is not required to, be in the following form:
"PART I. STATEMENT OF INTENT TO CREATE A MENTAL HEALTH ADVANCE DIRECTIVE
I, . . . . . ., being a person with capacity, willfully and voluntarily execute this mental health advance directive so that my choices regarding my mental health care will be carried out in circumstances when I am unable to express my intent regarding my mental health care. If a guardian or other decision maker is appointed by a court to make mental health decisions for me, I intend this document to take precedence over all other means of ascertaining my intent.
The fact that I may have left blanks in this mental health advance directive should not affect its validity in any way. I intend that all completed sections be followed. If I have not expressed a choice, my agent should make the decision that he or she determines is the decision I would make if I were capable to do so.
I intend this mental health advance directive to take precedence over any and all durable powers of attorney for health care documents and/or other mental health advance directives I have previously executed, to the extent that they are inconsistent with this document, or unless I expressly state otherwise in this mental health advance directive.
I understand that I may revoke this mental health advance directive in whole or in part only if I am a person with capacity. I understand that I cannot revoke this mental health advance directive if a court, two health care providers, or one mental health professional and one health care provider find that I am an incapacitated person. I understand that, except as otherwise provided in law, revocation must be in writing.
I understand that nothing in this mental health advance directive, or in my refusal of treatment to which I consent in this mental health advance directive, authorizes any agent designated by this mental health advance directive to use or threaten to use physical force, abuse, neglect, financial exploitation, or abandonment to enforce or carry out my mental health advance directive.
PART II. STATEMENT OF INTENT REGARDING WHEN THIS MENTAL HEALTH ADVANCE DIRECTIVE BECOMES OPERATIVE
I intend that this mental health advance directive become operative (initial only one):
. . . Immediately upon my signing of this mental health advance directive
. . . When the following circumstances, symptoms, or behaviors occur:
.................................................................
. . . If I become incapacitated.
PART III. STATEMENT OF INTENT REGARDING PREFERENCES OR INSTRUCTIONS ABOUT TREATMENT, FACILITIES, AND PHYSICIANS
A. Preferences or Instructions About Physician(s) to Be Involved in My Treatment
I would like the physician named below to be involved in my treatment decisions: Dr. ...................... Telephone ...............
Dr. ....................... Telephone ...............
I do not wish to be treated by: .................................
B. Preferences or Instructions About Other Providers
I am receiving other treatment or care from providers who I feel have an impact on my mental health care. I would like the following additional service provider(s) to be contacted when this mental health advance directive is operative:
Name .............. Profession ........... Telephone ..........
Name .............. Profession ........... Telephone ..........
Name .............. Profession ........... Telephone ..........
C. Preferences or Instructions About Medications for Psychiatric Treatment (initial all that apply):
. . . I consent, and authorize my agent (if appointed) to consent, to the following medications: ..........................................
.................................................................
. . . I specifically do not consent and I do not authorize my agent (if appointed) to consent to the administration of the following medications: ................................................................
.................................................................
. . . I am willing to take the medications excluded above if my only reason for excluding them is the side effects which include . . . . . . and these side effects can be eliminated by dosage adjustment or other means.
. . . I am willing to try any new medication the hospital doctor recommends.
. . . I am willing to try any new medications my outpatient doctor recommends.
. . . I do not want to try any new medications.
Medication Allergies
I have allergies to, or severe side effects from, the following medications: ....................................................
.................................................................
Other Medication Preferences or Instructions
I have the following other preferences or instructions about medications: .................................................................
.................................................................
.................................................................
D. Preferences or Instructions About Hospitalization and Alternatives (initial all that apply and, if desired, rank "1" for first choice, "2" for second choice, and so on):
. . . In the event my psychiatric condition is serious enough to require 24-hour care and I have no physical conditions that require immediate access to emergency medical care, I prefer to receive this care in programs/facilities designed as alternatives to psychiatric hospitalizations.
I would also like the interventions below to be tried before hospitalization is considered:
. . . Calling someone or having someone call you when needed
. . . Staying overnight with someone
Name: . . . . . . . . . . . . . . Telephone: .............
. . . Having a mental health service provider come to see you
. . . Going to a crisis triage center or emergency room
. . . Staying overnight at a crisis respite (temporary) bed
. . . Seeing a service provider for help with psychiatric medications
. . . Other, specify.............................................
Authority to Consent to Inpatient Treatment
I consent, and authorize my agent (if appointed) to consent, to voluntary admission to inpatient mental health treatment for a period not to exceed 72 hours (initial one if desired):
. . . If deemed appropriate by my agent (if appointed) and treating physician
. . . Under the following circumstances (specify symptoms, behaviors, or circumstances that indicate the need for hospitalization)
.................................................................
. . . I do not consent, or authorize my agent (if appointed) to consent to inpatient treatment.
Hospital Preferences or Instructions
If hospitalization is required, I prefer the following hospitals:
.................................................................
I do not wish to be admitted to the following hospitals:
.................................................................
E. Preferences or Instructions About Pre-Emergency Interventions
I would like the interventions below to be tried before use of seclusion or restraint is considered (initial all that apply):
. . . "Talk me down" one-on-one
. . . More medication
. . . Time out/privacy
. . . Show of authority/force
. . . Shift my attention to something else
. . . Set firm limits
. . . Help me to discuss/vent feelings
. . . Decrease stimulation
. . . Offer to have neutral person settle dispute
. . . Other, specify ............................................
F. Preferences or Instructions About Seclusion, Restraint, and Emergency Medications
If it is determined that I am engaging in behavior that requires seclusion, physical restraint, and/or emergency use of medication, I prefer these interventions in the following order (rank "1" for first choice, "2" for second choice, and so on):
. . . Seclusion
. . . Physical restraints
. . . Seclusion and physical restraint (combined)
. . . Medication by injection
. . . Medication in pill or liquid form
In the event that my attending physician decides to use medication in response to an emergency situation after due consideration of my preferences or instructions for emergency treatments stated above, I expect the choice of medication to reflect any preferences or instructions I have expressed in Part III C of this form. The preferences or instructions I express in this section regarding medication in emergency situations do not constitute consent to use of the medication for nonemergency treatment.
G. Preferences or Instructions About Electroconvulsive Therapy (ECT or Shock Therapy)
My wishes regarding electroconvulsive therapy are (initial one):
. . . I do not consent, nor authorize my agent (if appointed) to consent, to the administration of electroconvulsive therapy
. . . I consent, and authorize my agent (if appointed) to consent, to the administration of electroconvulsive therapy
. . . I consent, and authorize my agent (if appointed) to consent, to the administration of electroconvulsive therapy, but only under the following conditions: .....................................................
H. Additional Instructions About My Mental Health Care
Other instructions about my mental health care: .................
.................................................................
In case of emergency, please contact:
Name: . . . . . . . . . . . . . . .
Address: .......................................................
.................................................................
Work telephone: . . . . . . . . . . . .
Home telephone: . . . . . . . . . . . .
Relationship: . . . . . . . . . . . . .
Physician: . . . . . . . . . . . . . . .
Address: .......................................................
.................................................................
Telephone: . . . . . . . . . . . . . . .
The following may help me to avoid a hospitalization:
.................................................................
I generally react to being hospitalized as follows:
.................................................................
Staff of the hospital or crisis unit can help me by doing the following:
.................................................................
PART IV. STATEMENT OF INTENT TO APPOINT AN AGENT
I authorize an agent to make mental health treatment decisions on my behalf. The authority granted to my agent includes the right to consent, refuse consent, or withdraw consent to any mental health care, treatment, service, or procedure, and to obtain and to authorize disclosure of health care information, as defined in section 2 of this act, and other information relevant to such health care, treatment, service, or procedure consistent with any instructions and/or limitations I have set forth in this mental health advance directive. I intend that those decisions should be made in accordance with my expressed wishes as set forth in this document. If I have not expressed a choice in this document, I authorize my agent to make the decision that my agent determines is the decision I would make if I were capable to do so.
A. Designation of an Agent
I hereby appoint the following person as my agent to make mental health treatment decisions for me as authorized in this document and request that this person to be notified immediately when this mental health advance directive becomes operative:
Name: ....................... Relationship: .................
Address: ........................................................
Day Telephone: .............. Evening Telephone: ............
Agent's Acceptance
I hereby accept the designation as the agent for purposes described in this document (agent's signature) ...............................
B. Designation of Alternate Agent
If the person named above is unavailable, unable, or refuses to serve as my agent, or I revoke that person's authority to serve as my agent, I hereby appoint the following person as my alternate agent and request that this person be notified immediately when this mental health advance directive becomes operative:
Name: ....................... Relationship: .................
Address: ........................................................
Day Telephone: .............. Evening Telephone: ............
Alternate Agent's Acceptance
I hereby accept the designation as the alternate agent for purposes described in this document (alternate's signature) ..............
C. When My Spouse is My Agent (initial if desired)
. . . If my spouse is my agent, I desire that person to remain as my agent even if we become legally separated or our marriage is dissolved.
D. Limitations on My Agent's Authority
I do not grant my agent the authority to consent on my behalf to the following: ......................................................
E. Agent Authorized During Principal's Incapacity (initial if desired)
. . . This agency shall not be affected by the disability or incapacity of the principal.
F. Preference as to Court-Appointed Guardian
In the event a court decides to appoint a guardian who will make decisions regarding my mental health treatment, I desire the following person to be appointed:
Name: ....................... Relationship: .................
Address: ........................................................
Day Telephone: .............. Evening Telephone: ............
The appointment of a guardian of my estate or my person or any other decision maker shall not give the guardian or decision maker the power to revoke, suspend, or terminate this mental health advance directive or the powers of my agent, except as authorized by law.
PART V. OTHER DOCUMENTS
(Initial all that apply):
. . . I have executed the following documents that include the power to make decisions regarding health care services for myself:
. . . Health care power of attorney (chapter 11.94 RCW)
. . . Advance directive or "living will" (chapter 70.122 RCW)
. . . I authorize my agent appointed under this directive and the agent appointed under the other documents to serve:
. . . Jointly with consent of each other as to my mental health treatment
. . . Separately without each other's consent as to my mental health treatment
In the event a decision about health care treatment impacts both mental health and physical health treatment and the agents appointed under my health care power of attorney, advance directive, and mental health advance directive cannot reach a consensus, the agent appointed under the following document will control (check only one):
. . . Health care power of attorney (chapter 11.94 RCW)
. . . Advance directive or "living will" (chapter 70.122 RCW)
. . . Mental health advance directive (chapter 71.-- RCW (sections 1 through 16 of this act))
. . . I have also executed a general or financial power of attorney that does not include the power to make decisions regarding health care services for me.
PART VI. PREFERENCES OR INSTRUCTIONS ABOUT NOTIFICATION OF OTHERS, CARE OF PERSONAL AFFAIRS, AND CONSENTS TO RELEASE TREATMENT INFORMATION
I acknowledge that state and federal law may require that I be notified of my rights to limit disclosure of health information. I hereby waive any specific type of notification of such rights and authorize disclosure as set forth in detail herein or as authorized by my agent.
A. Who Should Be Notified
I desire staff to notify the following individuals, in addition to my agent (if appointed) immediately when this mental health advance directive becomes operative:
Name: ....................... Relationship: .................
Address: ........................................................
Day Telephone: .............. Evening Telephone: ............
Name: ....................... Relationship: .................
Address: ........................................................
Day Telephone: .............. Evening Telephone: ............
Name: ....................... Relationship: .................
Address: ........................................................
Day Telephone: .............. Evening Telephone: ............
B. Who May Not be Permitted to Visit
If I have been admitted to a mental health treatment facility, the following people may not be permitted to visit me there:
Name: ....................... Relationship: .................
Name: ....................... Relationship: .................
Name: ....................... Relationship: .................
C. Authorization to Release Previous Treatment Records
I authorize the release of health care information, as defined in section 2 of this act, from the following previous treatment providers upon request by treatment providers acting under this mental health advance directive:
Provider(s): ....................................................
D. Authorization to Release Treatment Information
I authorize the release of relevant health care information, as defined in section 2 of this act, to the following individuals in addition to my agent and current treatment providers:
Name: ....................... Relationship: .................
Address: ........................................................
Day Telephone: .............. Evening Telephone: ............
E. Preferences or Instructions About Personal Affairs
I have the following preferences or instructions about my personal affairs (e.g., care of dependents, pets, household) if I am admitted to a mental health treatment facility: ......................................
F. Additional Preferences and Instructions:.....................
.................................................................
PART VII. DURATION OF MY MENTAL HEALTH ADVANCE DIRECTIVE
(Initial one):
. . . I want this mental health advance directive to remain valid and in effect for an indefinite period of time.
. . . I want this mental health advance directive to automatically expire . . . years from the date it was created.
PART VIII. SIGNATURE
By signing here, I indicate that I understand the purpose and effect of this document and that I am giving my informed consent to the treatments and/or admission to which I have consented or authorized my agent to consent in this directive. I intend that my consent in this directive be construed as being consistent with the elements required under RCW 7.70.060.
.................................................................
Signature Date
The mental health advance directive above was signed and declared by the "Declarant," . . . . . . to be his or her mental health advance directive, in our presence who, at his or her request, have signed names below as witness. We declare that, at the time of the creation of this instrument, the Declarant is personally known to us, and, according to our best knowledge and belief, was a person with capacity at the time and did not appear to be acting under duress, undue influence, or fraud. We further declare that none of us is: (1) A person designated to make medical decisions on the person's behalf; (2) a health care provider or professional person directly involved with the provision of care to the person at the time the mental health advance directive is executed; (3) an owner, operator, employee, or relative of an owner or operator of a health care facility or long-term care facility in which the person is a patient or resident; (4) a person who is related by blood, marriage, or adoption to the person, or with whom the person has a dating relationship as defined in RCW 26.50.010; (5) an incapacitated person; (6) a person who would benefit financially if the principal undergoes mental health treatment; or (7) a minor.
Dated at . . . . . . . . . . . (county, state),
this . . . . . . day of . . . . . . of . . . ..
Witness 1 Witness 2
........................ .......................
Signature............... Signature
................... .......................
Printed Name....... Printed Name
................... .......................
................... .......................
Address............ Address
................... .......................
Telephone.......... Telephone
PART IX. RECORD OF MENTAL HEALTH ADVANCE DIRECTIVE
I have given a copy of this mental health advance directive to the following persons: ..............................................
PART X. REVOCATION OF MY MENTAL HEALTH ADVANCE DIRECTIVE
(Initial any that apply):
. . . I am revoking the following part(s) of this mental health advance directive (specify):
.................................................................
. . . I am revoking all of this mental health advance directive.
By signing here, I indicate that I understand the purpose and effect of my revocation and that no person is bound by any revoked provision(s).
.................................................................
Signature Date"
Sec. 17. RCW 11.94.010 and 1995 c 297 s 9 are each amended to read as follows:
(1) Whenever a principal designates another as his or her attorney in fact or agent, by a power of attorney in writing, and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's disability, the authority of the attorney in fact or agent is exercisable on behalf of the principal as provided notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or the principal's guardian or heirs, devisees, and personal representative as if the principal were alive, competent, and not disabled. A principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification. If a guardian thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the guardian rather than the principal. The guardian has the same power the principal would have had if the principal were not disabled or incompetent, to revoke, suspend or terminate all or any part of the power of attorney, mental health advance directive, or agency.
(2) Persons shall place reasonable reliance on any determination of disability or incompetence as provided in the instrument that specifies the time and the circumstances under which the power of attorney document becomes effective.
(3)(a) A principal may authorize his or her attorney-in-fact to provide informed consent for health care decisions on the principal's behalf. If a principal has created both a power of attorney and a mental health advance directive, pursuant to chapter 71.-- RCW (sections 1 through 16 of this act), authorizing an agent to make mental health care decisions on the person's behalf, the mental health advance directive or power of attorney most recently created shall be construed to contain the person's mental health treatment preferences and instructions, unless provided otherwise in either document. An agent appointed under a mental health advance directive has the same right as the principal to receive and review the principal's health care information, including mental health, sexually transmitted diseases and human immunodeficiency virus/AIDS, and alcohol and substance abuse information. If the principal so states in the mental health advance directive, an agent may provide consent on behalf of the principal to voluntary admission to inpatient mental health treatment for a period not to exceed seventy-two hours.
(b) Unless he or she is the spouse, or adult child or brother or sister of the principal, none of the following persons may act as the attorney-in-fact for the principal or as an agent in a mental health advance directive: Any of the principal's physicians, the physicians' employees, or the owners, administrators, or employees of the health care facility or long-term care facility where the principal resides or receives care. Except as provided in (a) of this subsection, this authorization is subject to the same limitations as those that apply to a guardian under RCW 11.92.043(5) (a) through (c).
Sec. 18. RCW 11.88.010 and 1991 c 289 s 1 are each amended to read as follows:
(1) The superior court of each county shall have power to appoint guardians for the persons and/or estates of incapacitated persons, and guardians for the estates of nonresidents of the state who have property in the county needing care and attention.
(a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.
(b) For purposes of this chapter, a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.
(c) A determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.
(d) A person may also be determined incapacitated if he or she is under the age of majority as defined in RCW 26.28.010.
(e) For purposes of giving informed consent for health care pursuant to RCW 7.70.050 and 7.70.065, an "incompetent" person is any person who is (i) incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his or her property or caring for himself or herself, or both, or (ii) incapacitated as defined in (a), (b), or (d) of this subsection.
(f) For purposes of the terms "incompetent," "disabled," or "not legally competent," as those terms are used in the Revised Code of Washington to apply to persons incapacitated under this chapter, those terms shall be interpreted to mean "incapacitated" persons for purposes of this chapter.
(2) The superior court for each county shall have power to appoint limited guardians for the persons and estates, or either thereof, of incapacitated persons, who by reason of their incapacity have need for protection and assistance, but who are capable of managing some of their personal and financial affairs. After considering all evidence presented as a result of such investigation, the court shall impose, by order, only such specific limitations and restrictions on an incapacitated person to be placed under a limited guardianship as the court finds necessary for such person's protection and assistance. A person shall not be presumed to be incapacitated nor shall a person lose any legal rights or suffer any legal disabilities as the result of being placed under a limited guardianship, except as to those rights and disabilities specifically set forth in the court order establishing such a limited guardianship. In addition, the court order shall state the period of time for which it shall be applicable.
(3) Venue for petitions for guardianship or limited guardianship shall lie in the county wherein the alleged incapacitated person is domiciled, or if such person resides in a facility supported in whole or in part by local, state, or federal funding sources, in either the county where the facility is located, the county of domicile prior to residence in the supported facility, or the county where a parent or spouse of the alleged incapacitated person is domiciled.
If the alleged incapacitated person's residency has changed within one year of the filing of the petition, any interested person may move for a change of venue for any proceedings seeking the appointment of a guardian or a limited guardian under this chapter to the county of the alleged incapacitated person's last place of residence of one year or more. The motion shall be granted when it appears to the court that such venue would be in the best interests of the alleged incapacitated person and would promote more complete consideration of all relevant matters.
(4) Under RCW 11.94.010 or chapter 71.-- RCW (sections 1 through 16 of this act), a principal may nominate, by a durable power of attorney or the mental health advance directive, the guardian or limited guardian of his or her estate or person for consideration by the court if guardianship proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney or mental health advance directive except for good cause or disqualification.
(5) When a court imposes a full guardianship for an incapacitated person, the person shall be considered incompetent for purposes of rationally exercising the right to vote and shall lose the right to vote, unless the court specifically finds that the person is rationally capable of exercising the franchise. Imposition of a limited guardianship for an incapacitated person shall not result in the loss of the right to vote unless the court determines that the person is incompetent for purposes of rationally exercising the franchise.
Sec. 19. RCW 11.88.030 and 1996 c 249 s 8 are each amended to read as follows:
(1) Any person or entity may petition for the appointment of a qualified person, trust company, national bank, or nonprofit corporation authorized in RCW 11.88.020 as the guardian or limited guardian of an incapacitated person. No liability for filing a petition for guardianship or limited guardianship shall attach to a petitioner acting in good faith and upon reasonable basis. A petition for guardianship or limited guardianship shall state:
(a) The name, age, residence, and post office address of the alleged incapacitated person;
(b) The nature of the alleged incapacity in accordance with RCW 11.88.010;
(c) The approximate value and description of property, including any compensation, pension, insurance, or allowance, to which the alleged incapacitated person may be entitled;
(d) Whether there is, in any state, a guardian or limited guardian, or pending guardianship action for the person or estate of the alleged incapacitated person;
(e) The residence and post office address of the person whom petitioner asks to be appointed guardian or limited guardian;
(f) The names and addresses, and nature of the relationship, so far as known or can be reasonably ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person;
(g) The name and address of the person or facility having the care and custody of the alleged incapacitated person;
(h) The reason why the appointment of a guardian or limited guardian is sought and the interest of the petitioner in the appointment, and whether the appointment is sought as guardian or limited guardian of the person, the estate, or both;
(i) A description of any alternate arrangements previously made by the alleged incapacitated person, such as trusts, mental health advance directives, or powers of attorney, including identifying any guardianship nominations contained in a power of attorney, and why a guardianship is nevertheless necessary;
(j) The nature and degree of the alleged incapacity and the specific areas of protection and assistance requested and the limitation of rights requested to be included in the court's order of appointment;
(k) The requested term of the limited guardianship to be included in the court's order of appointment;
(l) Whether the petitioner is proposing a specific individual to act as guardian ad litem and, if so, the individual's knowledge of or relationship to any of the parties, and why the individual is proposed.
(2)(a) The attorney general may petition for the appointment of a guardian or limited guardian in any case in which there is cause to believe that a guardianship is necessary and no private party is able and willing to petition.
(b) Prepayment of a filing fee shall not be required in any guardianship or limited guardianship brought by the attorney general. Payment of the filing fee shall be ordered from the estate of the incapacitated person at the hearing on the merits of the petition, unless in the judgment of the court, such payment would impose a hardship upon the incapacitated person, in which case the filing shall be waived.
(3) No filing fee shall be charged by the court for filing either a petition for guardianship or a petition for limited guardianship if the petition alleges that the alleged incapacitated person has total assets of a value of less than three thousand dollars.
(4)(a) Notice that a guardianship proceeding has been commenced shall be personally served upon the alleged incapacitated person and the guardian ad litem along with a copy of the petition for appointment of a guardian. Such notice shall be served not more than five court days after the petition has been filed.
(b) Notice under this subsection shall include a clear and easily readable statement of the legal rights of the alleged incapacitated person that could be restricted or transferred to a guardian by a guardianship order as well as the right to counsel of choice and to a jury trial on the issue of incapacity. Such notice shall be in substantially the following form and shall be in capital letters, double-spaced, and in a type size not smaller than ten-point type:
IMPORTANT NOTICE
PLEASE READ CAREFULLY
A PETITION TO HAVE A GUARDIAN APPOINTED FOR YOU HAS BEEN FILED IN THE . . . . . . COUNTY SUPERIOR COURT BY . . . . . . IF A GUARDIAN IS APPOINTED, YOU COULD LOSE ONE OR MORE OF THE FOLLOWING RIGHTS:
(1) TO MARRY OR DIVORCE;
(2) TO VOTE OR HOLD AN ELECTED OFFICE;
(3) TO ENTER INTO A CONTRACT OR MAKE OR REVOKE A WILL;
(4) TO APPOINT SOMEONE TO ACT ON YOUR BEHALF;
(5) TO SUE AND BE SUED OTHER THAN THROUGH A GUARDIAN;
(6) TO POSSESS A LICENSE TO DRIVE;
(7) TO BUY, SELL, OWN, MORTGAGE, OR LEASE PROPERTY;
(8) TO CONSENT TO OR REFUSE MEDICAL TREATMENT;
(9) TO DECIDE WHO SHALL PROVIDE CARE AND ASSISTANCE;
(10) TO MAKE DECISIONS REGARDING SOCIAL ASPECTS OF YOUR LIFE.
UNDER THE LAW, YOU HAVE CERTAIN RIGHTS.
YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER OF YOUR OWN CHOOSING. THE COURT WILL APPOINT A LAWYER TO REPRESENT YOU IF YOU ARE UNABLE TO PAY OR PAYMENT WOULD RESULT IN A SUBSTANTIAL HARDSHIP TO YOU.
YOU HAVE THE RIGHT TO ASK FOR A JURY TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN TO HELP YOU.
YOU HAVE THE RIGHT TO BE PRESENT IN COURT AND TESTIFY WHEN THE HEARING IS HELD TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN. IF A GUARDIAN AD LITEM IS APPOINTED, YOU HAVE THE RIGHT TO REQUEST THE COURT TO REPLACE THAT PERSON.
(5) All petitions filed under the provisions of this section shall be heard within sixty days unless an extension of time is requested by a party or the guardian ad litem within such sixty day period and granted for good cause shown. If an extension is granted, the court shall set a new hearing date.
Sec. 20. RCW 7.70.065 and 1987 c 162 s 1 are each amended to read as follows:
(1) Informed consent
for health care for a patient who is not competent, as defined in RCW 11.88.010(1)(((b)))
(e), to consent may be obtained from a person authorized to consent on
behalf of such patient. Persons authorized to provide informed consent to
health care on behalf of a patient who is not competent to consent shall be a
member of one of the following classes of persons in the following order of
priority:
(a) The appointed guardian of the patient, if any;
(b) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions;
(c) The patient's spouse;
(d) Children of the patient who are at least eighteen years of age;
(e) Parents of the patient; and
(f) Adult brothers and sisters of the patient.
(2) If the physician seeking informed consent for proposed health care of the patient who is not competent to consent makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and finds no such person available, authorization may be given by any person in the next class in the order of descending priority. However, no person under this section may provide informed consent to health care:
(a) If a person of higher priority under this section has refused to give such authorization; or
(b) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class.
(3) Before any person authorized to provide informed consent on behalf of a patient not competent to consent exercises that authority, the person must first determine in good faith that that patient, if competent, would consent to the proposed health care. If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient's best interests.
NEW SECTION. Sec. 21. Nothing in this act creates a legal right or cause of action. Nothing in this act denies or alters any existing legal right or cause of action nor may it be relied upon to compel the establishment of any program or special entitlement.
NEW SECTION. Sec. 22. Sections 1 through 16 of this act constitute a new chapter in Title 71 RCW.
NEW SECTION. Sec. 23. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.
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