[§327E-5]  Health-care decisions;surrogates.  (a)  A patient may designate or disqualify any individual toact as a surrogate by personally informing the supervising health-careprovider.  In the absence of such a designation, or if the designee is not reasonablyavailable, a surrogate may be appointed to make a health-care decision for thepatient.

(b)  A surrogate may make a health-caredecision for a patient who is an adult or emancipated minor if the patient hasbeen determined by the primary physician to lack capacity and no agent orguardian has been appointed or the agent or guardian is not reasonablyavailable.  Upon a determination that a patient lacks decisional capacity toprovide informed consent to or refusal of medical treatment, the primaryphysician or the physician's designee shall make reasonable efforts to notifythe patient of the patient's lack of capacity.  The primary physician, or thephysician's designee, shall make reasonable efforts to locate as manyinterested persons as practicable, and the primary physician may rely on suchindividuals to notify other family members or interested persons.

(c)  Upon locating interested persons, theprimary physician, or the physician's designee, shall inform such persons ofthe patient's lack of decisional capacity and that a surrogate decision-makershould be selected for the patient.

(d)  Interested persons shall make reasonableefforts to reach a consensus as to who among them shall make health-caredecisions on behalf of the patient.  The person selected to act as thepatient's surrogate should be the person who has a close relationship with thepatient and who is the most likely to be currently informed of the patient'swishes regarding health-care decisions.  If any of the interested personsdisagrees with the selection or the decision of the surrogate, or, if afterreasonable efforts the interested persons are unable to reach a consensus as towho should act as the surrogate decision-maker, then any of the interestedpersons may seek guardianship of the patient by initiating guardianshipproceedings pursuant to chapter 551.  Only interested persons involved in thediscussions to choose a surrogate may initiate such proceedings with regard tothe patient.

(e)  If any interested person, the guardian, orprimary physician believes the patient has regained decisional capacity, theprimary physician shall reexamine the patient and determine whether or not thepatient has regained decisional capacity and shall enter a decision and thebasis for such decision into the patient's medical record and shall notify thepatient, the surrogate decision-maker, and the person who initiated theredetermination of decisional capacity.

(f)  A surrogate who has been designated by thepatient may make health-care decisions for the patient that the patient couldmake on the patient's own behalf.

(g)  A surrogate who has not been designated bythe patient may make all health-care decisions for the patient that the patientcould make on the patient's own behalf, except that artificial nutrition andhydration may be withheld or withdrawn for a patient upon a decision of thesurrogate only when the primary physician and a second independent physiciancertify in the patient's medical records that the provision or continuation ofartificial nutrition or hydration is merely prolonging the act of dying and thepatient is highly unlikely to have any neurological response in the future.

The surrogate who has not been designated bythe patient shall make health-care decisions for the patient based on thewishes of the patient, or, if the wishes of the patient are unknown or unclear,on the patient's best interest.

The decision of a surrogate who has not beendesignated by the patient regarding whether life-sustaining procedures shouldbe provided, withheld, or withdrawn shall not be based, in whole or in part, oneither a patient's preexisting, long-term mental or physical disability, or apatient's economic status.  A surrogate who has not been designated by thepatient shall inform the patient, to the extent possible, of the proposedprocedure and the fact that someone else is authorized to make a decisionregarding that procedure.

(h)  A health-care decision made by a surrogatefor a patient is effective without judicial approval.

(i)  A supervising health-care provider shallrequire a surrogate to provide a written declaration under the penalty of falseswearing stating facts and circumstances reasonably sufficient to establish theclaimed authority. [L 1999, c 169, pt of §1]