[§327E-5]  Health-care decisions;
surrogates.  (a)  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.



(b)  A surrogate may make a health-care
decision for a patient who is an adult or emancipated minor if the patient has
been determined by the primary physician to lack capacity and no agent or
guardian has been appointed or the agent or guardian is not reasonably
available.  Upon a determination that a patient lacks decisional capacity to
provide informed consent to or refusal of medical treatment, the primary
physician or the physician's designee shall make reasonable efforts to notify
the patient of the patient's lack of capacity.  The primary physician, or the
physician's designee, shall make reasonable efforts to locate as many
interested persons as practicable, and the primary physician may rely on such
individuals to notify other family members or interested persons.



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



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



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



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



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



The surrogate who has not been designated by
the patient shall make health-care decisions for the patient based on the
wishes 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 been
designated by the patient regarding whether life-sustaining procedures should
be provided, withheld, or withdrawn shall not be based, in whole or in part, on
either a patient's preexisting, long-term mental or physical disability, or a
patient's economic status.  A surrogate who has not been designated by the
patient shall inform the patient, to the extent possible, of the proposed
procedure and the fact that someone else is authorized to make a decision
regarding that procedure.



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



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