Overview of the UHCDA (Modified)
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The 1999 Hawaii Session Laws Act 169, signed by the governor on July 1, 1999, established the Uniform Health Care Decisions Act (Modified) ("UHCDA"). The new law repealed or changed several provisions of the Hawaii Revised Statutes. The UHCDA takes a comprehensive approach by placing the "living will," the durable power of attorney for health care, a "family consent" or surrogate law, and some provisions concerning organ donation together in one statute. The statute is found in Hawaii Revised Statutes Chapter 327E.
The new "individual instruction" which takes the place of what was commonly called the "living will," applies to a wide range of health care decisions, not just end of life decisions.
The residual decision making portions of the act--or surrogate provisions--are different than the family consent statute that have now been adopted in a majority of states, but still permit "interested persons" to make decisions for a person who no longer can make health care decisions and there is no applicable individual instruction, guardian or appointed agent.
The UHCDA applies in all settings--hospitals, nursing homes, care homes, outpatient offices and in the community.
The new law:
Under the new law an adult or emancipated minor may make advance health care directives by giving an "individual instruction" orally or in writing and/or by executing a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. Note that nowhere in the new law is the term "living will" used. An individual may revoke the designation of an agent only by a signed writing or by personally informing the supervising health-care provider but an individual may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke. The new law even provides an optional sample form (and explanation) which may be duplicated or modified to suit the needs of the person, or a completely different form may be used that contains the substance of the sample form found in the statute. A sample form with an explanation is included in the law.
Under the new law a surrogate may make a health-care decision for a patient if the patient lacks capacity and no agent or guardian has been appointed or the agent or guardian are not available. A patient may designate or disqualify any individual to act as a surrogate by personally informing the supervising health-care provider. In the absence of such a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a health-care decision for the patient. This "non-designated surrogate" is selected by consensus from a group of "interested persons."—spouse--unless legally separated or estranged, reciprocal beneficiary, any adult child, either parent of the patient, an adult sibling or adult grandchild, or any adult who has exhibited special care and concern for the patient and who is familiar with the patient's personal values)—and can make all health care decisions although there are stricter guidelines for decisions about tube feeding . If there is no consensus in selecting the surrogate or if there is conflict about any decision any interested person may seek guardianship in court.
The UHCDA makes it especially important for individuals who still have capacity to consider executing written advance directives. These can include an "individual instruction" (formerly referred to as the "Living Will"), and a health care power of attorney. The new law makes it much easier to execute an advance directive. Copies of these documents should be filed in the patient’s medical record.
For individuals who have an "old" advance directive, they should check its currency, taking into consideration when was it executed, its clarity and whether it still reflects the patient’s wishes. If individuals desire to make a new advance directive, the sample optional form and explanation can be used and individuals are encourage them to individualize the form to meet their needs. Of course, UHELP stands ready to help. We regularly schedule workshops to assist clients in making advance healthcare directives. Please give us a call at 956-6544 to find out more or to make reservations to attend one of our free sessions.