You asked for a summary of LCO's working draft (LCO 2999) of an amendment that would permit people to designate others to make certain decisions on their behalf and have certain rights and responsibilities based on this designation. A copy of the draft is enclosed.

SUMMARY

LCO 2999 requires people to honor documents designating another person to make certain decisions on the maker's behalf and giving the designee limited rights and obligations. The situations where such documents must be recognized are:

1. in psychiatric hospitals, when informed consent for medical treatment is required from someone other than the patient (§ 2);

2. in nursing homes, when private visitation and room transfer decisions are made (§ 4);

3. in health care settings, when medical personnel need information about a patient's wishes from people other than the patient (§§ 3, 5, and 6);

4. in the workplace, when an employee receives an emergency telephone call (§ 7);

5. when a deceased person's estate does not have enough money to pay for the funeral and last illness expenses (§ 8); and

6. in court and administrative proceedings involving crime victims (§§ 9-13).

It is unclear what effect these designations would have in a situation where the person named in the document refuses to take the specified action.

The amendment also requires the Judiciary Committee to meet and deliberate the public policy reasons for permitting or prohibiting the marriage or civil union of two people of the same sex. The committee must report its findings and recommendations to the General Assembly by January 1, 2003 (§ 14).

Sections 1-13 are effective October 1, 2002; Section 14 is effective on passage.

DOCUMENT REQUIREMENTS (§ 1)

The maker of the document designating a representative for one of the approved purposes must be at least 18 years old. He must sign and date the document in front of two witnesses.

INFORMED CONSENT

The amendment adds the person designated under Section One to the people who may consent to medical or surgical procedures on behalf of extremely ill, involuntarily committed patients. Psychiatric hospital personnel may perform the procedures without the patient's consent if they get the informed written consent of the designee or the patient's conservator or guardian, next of kin, or a doctor appointed by the Probate Court.

NURSING HOME PATIENT'S BILL OF RIGHTS

The amendment gives nursing home (used generically and includes residential care homes, chronic disease hospitals, and rest homes with nursing supervision) residents the right to have designees (1) receive advance notice of involuntary room transfers, including moving Medicaid patients from private to non-private rooms; (2) included in the consultative process prior to transfer; (3) visit them in private and share a room when both are residents, unless medically contraindicated; and (4) meet with other patients' families at the facility.

By law, patients who are injured by a facility's violation of the Nursing Home Patient's Bill of Rights can sue for money damages. They are entitled to punitive damages for a facility's willful or reckless actions.

LIFE SUPPORT AND ANATOMICAL GIFT DECISIONS

By law, a physician treating a person in a terminal or permanently unconscious condition must consider the patient's wishes concerning the withholding or withdrawal of life support. When the doctor does not have a patient's living will in his possession, he must determine those wishes by asking the patient's health care agent, next of kin, legal guardian or conservator, or any other person he knows has talked to the patient about his wishes.

The amendment adds a patient's designee to the list of people the doctor must consult. It also requires health care providers to include in a patient's medical record reported statements the patient made to his designee, in addition to the people listed above, about any aspect of his health care preferences, including the withholding or withdrawal of life support.

Finally, the amendment gives a deceased person's designee priority over all except the surviving spouse in making anatomical gift decisions. As under existing law, the designee cannot override an earlier unrevoked decision the deceased made not to make the gift.

EMERGENCY CALLS AT WORK

By law, an employer commits an infraction when it fails to make reasonable efforts to notify an employee of an incoming emergency telephone call about a situation in which a family member has died or experienced a serious physical injury or is ill and in need of medical attention. The amendment appears to subject the employer to the infraction when the emergency call concerns an employee's designee, although it does not change the existing definition of "emergency," which does not include designees in the list of people covered.

FUNERAL AND LAST ILLNESS EXPENSES

The amendment permits the designation of another person to pay funeral expenses and expenses of a person's last illness. Currently, the surviving spouse is responsible when the estate of the deceased does not contain sufficient funds for these purposes.

CRIME VICTIMS

The amendment includes several provisions concerning crime victims. It provides employment protection for a person designated by the crime victim, rather than specified family members only, who misses work to attend court proceedings about the criminal case.

It also includes a homicide victim's designee in the definition of "victim," entitling him to make a court statement prior to the sentencing of the perpetrator and to get advance notice of the terms of plea agreements, if he requests this. It also allows designees to express their views at parole hearings.

Finally, it permits designees who were financially dependent on the crime victim at the time of his death to seek monetary awards from the Office of Victim Services.

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