Health Care Provider Guide Draft · 2017. 7. 22. · • Artificially Administered Nutrition and Hydration (ANH) • Other Life-Sustaining Treatment • Non Life-Sustaining Treatment

What every Oklahoma health care professional needs toknow about the legal and ethical issues of patient

incapacity and surrogate decisionmaking

Who Decides?

Caring for Patients withDiminished Capacity

SENIOR LAW

RESOURCE CENTER

Who Decides? Caring For Patients With Diminished Capacity was produced by the Senior Law Resource Center,Inc. with support from the Hospice Foundation of Oklahoma Affiliated Fund, Inc.

The Senior Law Resource Center is a non-profit organization providing legal information and services to seniors andcaregivers in Oklahoma. The mission of the Senior Law Resource Center is to empower Oklahomans to age withindependence, dignity, and security.

The Hospice Foundation of Oklahoma Affiliated Fund, Inc., an endowment administered by the Oklahoma City Com-munity Foundation, was founded in 1998 to support programs that train and educate persons providing physical,emotional, social, and spiritual care to terminally ill persons and their loved ones, and to educate the public, patients,and families concerning the death process.

Additional copies of this guide may be ordered from:

Senior Law Resource CenterP.O. Box 1408

Oklahoma City, OK 73106(405) 528-0858

FAX (405) [email protected]

This guide can also be downloaded in PDF format from www.OklahomaSeniorLaw.org.

Users are encouraged to reproduce parts or all of this guide. However, copies of this guide may not be sold.

Printed in 2009

Table of Contents

Introduction & Overview ..................................................................................................... 3

Patients’ Rights & Incapacity .............................................................................................. 4

Treatment Presumptions & Exceptions ............................................................................. 6Treatment Presumptions and Exceptions............................................................................ 6Cardiopulmonary Resuscitation (CPR) .............................................................................. 6Artificially Administered Nutrition and Hydration (ANH) ................................................... 7Other Life-Sustaining Treatment ......................................................................................... 9Non Life-Sustaining Treatment ..........................................................................................10Disclosing Health Information ........................................................................................... 11

Patient Representatives & Legal Documents .................................................................. 12Patient Representatives and Legal Documents ..................................................................12Advance Directive for Health Care ....................................................................................12Durable Power of Attorney ................................................................................................18Do-Not-Resuscitate (DNR) Consent .................................................................................20Guardianship ......................................................................................................................23HIPAA Authorization .........................................................................................................25

Other Legal & Ethical Issues ............................................................................................ 27Protection from Liability ....................................................................................................27Legal Requirements............................................................................................................27Ethical Issues .....................................................................................................................29

Appendices ........................................................................................................................... 31Appendix A: Glossary of Key Terms ................................................................................31Appendix B: Information Resources .................................................................................32Appendix C: Relevant Law ................................................................................................34

Forms .................................................................................................................................... 37Oklahoma Advance Directive for Health Care ...................................................................37Oklahoma Do-Not-Resuscitate (DNR) Consent Form ......................................................41

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As the population ages, health care providerswill increasingly care for patients with dimin-ished capacity. Whether or not patients haveplanned in advance for incapacity, health careprofessionals must be knowledgeable abouthow to work with patient representatives andwhat options are available when makingtreatment decisions.

This guide addresses the legal and ethicalissues faced by health care professionalscaring for patients with diminished capacity.When state law applies, the informationpresented is specific to Oklahoma.

The first section provides information aboutpatients’ rights and incapacity. The secondpart describes the legal presumptions aboutmedical treatment that apply when a patientlacks capacity to give consent and the excep-tions to these presumptions. The third sec-tion covers the different legal documents thatcan be used to authorize and guide surrogatedecisionmakers. Finally, the fourth sectionaddresses other legal and ethical issues,including protection from liability and re-quirements imposed on health care providersby state and federal law.

Reference materials can be found at the endof this guide. Appendix A provides a glos-sary of key terms. A list of organizations andinformation resources is provided in Appen-dix B. Appendix C summarizes the appli-cable state and federal laws, including stat-utes, regulations, case law, and AttorneyGeneral’s opinions. Sample Advance Direc-tive for Health Care and DNR Consent formsare located in the back of this booklet.

Introduction & Overview

This guide provides general information andis not intended to serve as legal or medicaladvice in any particular situation. Nor does itcreate an attorney-client relationship betweenthe Senior Law Resource Center and itsreaders.

The focus of this guide is on helping profes-sionals more effectively provide medical careto adults with diminished capacity. Therefore,it does not address medical decisionmakingfor children. It also does not cover mentalhealth treatment issues. However, informa-tion about Advance Directives for MentalHealth Treatment can be found on the SeniorLaw Resource Center’s website,www.OklahomaSeniorLaw.org.

The Senior Law Resource Center would liketo thank the Hospice Foundation of Okla-homa Affiliated Fund, Inc. for providing thefinancial support that made this guide pos-sible. Thank you also to the attorneys andhealth care professionals who generouslydonated their time and expertise to thisproject.

We hope that this guide will serve asa practical resource for health careproviders. Readers’ comments andsuggestions are very welcome.

Please share your feedback with us.

Senior Law Resource CenterP.O. Box 1408

Oklahoma City, OK [email protected]

(405) 528-0858

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Competent patients have a constitutionally-protected right to make decisions about theirown health care. They have the right to refusemedical treatment or direct that treatment bewithdrawn, even at the risk of causing death.This right to control one’s own medicaltreatment outweighs any obligation a healthcare provider has to preserve life.

Adults are presumed to have the capacity tomake their own medical decisions. Certainpeople are deemed by law to lack capacity tomake health care decisions. These includeminors and persons who have been declaredlegally incompetent by a court to make medi-cal treatment decisions. This typically occursin a guardianship proceeding.

If a patient is not deemed legally incompetentby virtue of age or court order, it is up tophysicians to determine if a patient lacks thecapacity to make medical decisions. This isoften difficult because capacity is not an all-or-nothing proposition. Patients may have thecapacity to make some decisions, but notothers. Some patients may have sufficientcapacity at certain times, but lack capacity atother times due to the effects of medicationor symptoms of mental or physical illness.

Capacity is based on function, not diagnosis.A patient who is diagnosed with Alzheimer’sdisease does not automatically lose the rightor ability to make decisions. Rather, capacityshould be determined based on whether thepatient can sufficiently understand relevantinformation, appreciate the pros and cons ofvarious options, and express a reasonedchoice based on the information available.

In general, patients have sufficient capacity tomake medical decisions if they can:• Understand their medical conditions

and the available treatment options• Weigh the risks and benefits of the

possible courses of action• Appreciate the likely consequences of

their treatment decisions• Communicate their decisions

Patients with limited capacity should be givenevery opportunity to make their own deci-sions. To maximize a patient’s ability, con-sider the following:

Patients’ Rights & Incapacity

Capacity vs. Competency

Mental capacity is assessed by ahealth care professional. Competencyis a legal determination made by acourt. Evidence of incapacity may beused by a judge to determinewhether a person is legally incompe-tent.

Incapacity vs. Poor Judgment

Lack of capacity to make a decision isnot the same thing as making afoolish decision. Going against medi-cal advice does not automaticallysignal a lack of decisionmakingcapacity. However, a seeminglyunreasonable decision coupled byother signs of incapacity may justifya more thorough capacity assess-ment.

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• Are there times of day when the patientis more aware and better able to com-municate?

• Are there medications or treatmentsthat affect the patient’s capacity?

• Can the information be presented in away that is easier for the patient tounderstand?

• Can someone help the patient to betterunderstand the information and com-municate with care providers?

• Can the decision be delayed until thepatient is able to understand and com-municate sufficiently?

Patients’ Rights & Incapacity

When assessing a person’s capacity tomake a particular medical decision,consider the following factors:

• Variability – does the patient statethe same wish consistently?

• Reasoning – can the patient articu-late the reasoning behind thedecision?

• Comprehension – does the patientappreciate the situation and likelyconsequences of the decision?

• Lifetime Consistency – is the deci-sion consistent with the patient’spersonality and patterns over time?

• Undue Influence – does it appearthat the patient is making up hisown mind, or is someone elseexerting pressure?

• Potential Harm – to what degreecould the patient be harmed by thedecision?

• Irreversibility – can the decision bereversed?

Patients with diminished capacity should stillbe kept informed and involved in their ownhealth care to the greatest extent possible.

When patients lack capacity to make medicaldecisions, they still retain the right to havetheir wishes honored. Often these wishes areexpressed in a document such as an AdvanceDirective for Health Care. They may also becommunicated by a representative appointedby the patient or by a judge.

When working with incapacitated patientsand their families, allow the following prin-ciples to guide your decisions and actions:• Honor Patient Autonomy – Respect

patients’ known wishes and values.This applies even if the patient’swishes contradict those of familymembers or health care providers.

• Strive to Do Good and Avoid Harm –The goal of care should be helping thepatient. This principle involves morethan treating illness. It also includesalleviating pain and maintaining thepatient’s dignity.

• Speak the Truth – Patients and theirrepresentatives must have enoughinformation about their conditions andtreatment options to give informedconsent.

• Maintain Confidentiality – Patients’personal health information is confi-dential. This right to privacy continueseven when a patient loses capacity.See page 11 for more information onHIPAA and permitted disclosures.

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Treatment Presumptions andExceptions

There is a general presumption that incapaci-tated patients consent to life-sustaining treat-ment such as cardiopulmonary resuscitation(CPR) and artificially administered nutritionand hydration (ANH). There are two types ofsituations when this presumption may notapply. The first is when there is sufficientevidence that the patient would not haveconsented to treatment if she were capable.The second is when treatment would befutile, impossible, or actually cause harm.

Depending on the type of treatment at issue,there are different ways to overcome thepresumption of consent. This section out-lines the rules that apply to the followingtypes of treatment:• Cardiopulmonary Resuscitation (CPR)• Artificially Administered Nutrition and

Hydration (ANH)• Other Life-Sustaining Treatment• Non Life-Sustaining Treatment

In addition, issues about disclosing protectedmedical information to family and othercaregivers are also addressed.

Cardiopulmonary Resuscitation(CPR)

Cardiopulmonary resuscitation (CPR) isemergency medical treatment designed torestart heart and/or breathing function. CPRincludes chest compressions, artificial venti-lation, intubations, defibrillation, and emer-gency cardiac medications. Oklahoma law

presumes that everyone consents to CPR inthe event their heart function or breathingstops. Unless this presumption has beenovercome, physicians and other health careproviders are required to provide CPR to apatient whose heart or breathing has ceased.

This presumption can be overcome if one ofthe following conditions is met:

A Competent Patient Declines CPR inAdvance

Competent patients may notify their attendingphysicians that they do not consent to CPR.This notification must be entered into pa-tients’ medical records.

A competent patient may also complete aDo-Not-Resuscitate (DNR) Consent form(see page 20) directing that no medical pro-cedure be used to restore breathing or heart-beat. Directions regarding CPR can also becommunicated by a patient in an AdvanceDirective for Health Care (see page 12).

A Representative Declines CPR on Behalfof an Incapacitated Patient

If the patient lacks capacity, a legal represen-tative can refuse to consent to CPR on behalfof the patient. Legal representatives autho-rized to refuse CPR are:• an attorney-in-fact granted health care

decisionmaking authority under aDurable Power of Attorney

• a health care proxy named in an Ad-vance Directive for Health Care

• a guardian of the person

Treatment Presumptions & Exceptions

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The legal representative must base this deci-sion on knowledge that the patient would nothave consented to CPR. The reason therepresentative, rather than the patient, ismaking the decision must be documented inthe patient’s medical record.

A patient’s legal representative can notify theattending physician that she knows that thepatient would not have consented to CPR.This notification should be entered into thepatient’s medical record. A legal representa-tive may also complete a DNR Consent formon behalf of an incapacitated patient.

The Attending Physician Knows thePatient Would Not Have Consented

If an incapacitated patient does not have arepresentative, the attending physician mayrefuse CPR on behalf of the patient if thephysician knows the patient would not haveconsented to CPR. The physician mustknow by clear and convincing evidence thatthe patient, when competent, made an in-formed decision that he would not haveconsented to CPR. This decision may havebeen communicated by the patient eitherorally or in writing to the physician directly,or to family members, health care providers,or others close to the patient, who in turn tellthe attending physician.

A physician may use this knowledge to sign aDNR Consent form or write a DNR Order inthe chart. The place for physicians to sign ison the back of the DNR Consent form.

CPR Would Not Prevent Imminent Death

Physicians and other health care providersare not required to administer CPR if, in theirreasonable medical judgment, such treatmentwould not prevent the imminent death of thepatient.

Artificially Administered Nutritionand Hydration (ANH)

Under Oklahoma law, every incapacitatedpatient is presumed to consent to artificiallyadministered nutrition and hydration (ANH).ANH can be withheld or withdrawn from anincapacitated patient only if one of the fol-lowing conditions is met:

The Patient Completed an AdvanceDirective for Health Care

ANH can be withheld or withdrawn if thepatient, when competent, completed theLiving Will section of an Advance Directivefor Health Care and the document specifi-cally authorizes the withholding or withdrawal


Read the Form!

Not all patients who complete Ad-vance Directives for Health Carechoose not to have ANH or otherlife-sustaining treatment. Somepatients may specify that they wantANH or other life-sustainging treat-ment under certain circumstances.

It is important to read the patient’sAdvance Directive. Do not assumethat all patients with Advance Direc-tives wish to forego treatment.

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of ANH. It is not enough if the documentonly states the patient does not want life-sustaining treatment in general.

Before the Living Will section of an AdvanceDirective goes into effect, the attending phy-sician and another physician must first deter-mine that the patient is not capable of makingan informed decision about health care,including ANH. Second, the attending physi-cian and a second physician must determinethat the patient falls into one of the categoriesaddressed in the form:• Terminal Condition – having an incur-

able and irreversible condition that willresult in death within six months evenwith life-sustaining treatment

• Persistently Unconscious – having anirreversible condition causing a lack ofthought and awareness of self and theenvironment

• End-Stage Condition – having anuntreatable and irreversible conditionresulting in severe and permanentdeterioration, indicated by completephysical dependence and incompe-tence

• Any other condition specified by thepatient in the Advance Directive forHealth Care.

If these requirements are met, the patient’sinstructions in the Advance Directive regard-ing ANH should be followed.

The Attending Physician Knows thePatient’s Wishes

ANH may be withheld or withdrawn if theattending physician has actual knowledge thatthe patient would not consent to such treat-ment. This requires that the patient and physi-cian discussed the patient’s specific prefer-ences about ANH at a time when the patienthad capacity and enough information tomake an informed decision.

If such a conversation occurs, it is stronglyrecommended that the details of the discus-sion be included in the patient’s medicalrecord.

A Court Determines the Patient’s Wishes

A judge can authorize the withholding orwithdrawal of ANH only if there is sufficientevidence that the patient did not want suchtreatment under the circumstances. Theevidence must show that the patient, whencompetent, made an informed decision thatANH should be withheld or withdrawn.


Pregnancy Exception

If an incapacitated patient is knownto be pregnant, Oklahoma law re-quires she be given life-sustainingtreatment. The only exception is ifthe patient completed an AdvanceDirective for Health Care in whichshe wrote in her own words that life-sustaining treatment and/or ANHshould be withheld or withdrawn inthe course of pregnancy.

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The patient’s wishes must be proved by clearand convincing evidence. This is a highstandard of proof. The evidence must be sostrong that the judge can say without reserva-tion that the patient would not have wantedANH under the specific circumstances. Thisevidence can be in the form of written or oralstatements made by the patient. The morespecific the statement, the better. For ex-ample, a general statement about wanting todie with dignity is not as strong as a state-ment such as, “If I ever have Alzheimer’sdisease and can’t feed myself, don’t put meon a feeding tube.”

ANH Is Not Medically Appropriate

There are three circumstances in which ANHcan be withheld or withdrawn based on adetermination of medical inappropriateness.These determinations must be made by theattending physician and a second consultingphysician.

ANH can be withheld or withdrawn if theattending physician and a second consultingphysician determine that any one of thefollowing is true:• That ANH would cause severe, intrac-

table, and long-lasting pain• That it is not medically possible to

administer ANH• That the patient will never regain com-

petence, that the patient is in the finalstage of a terminal condition, thatdeath is imminent, and that death willbe caused by the underlying condition,not the withdrawal of ANH.


Other Life-Sustaining Treatment

As with CPR and ANH, the law presumesthat incapacitated patients would want toreceive other types of life-sustaining treat-ment unless there is sufficient evidence to thecontrary. Other types of life-sustaining treat-ment include, for example, dialysis, ventila-tors, and pacemakers.

If the patient completed the Living Will sec-tion of an Advance Directive for Health Carestating the wish not to receive life-sustainingtreatment, those wishes must be honored.(See the previous section on ANH for moreinformation about when the Living Will sec-tion of an Advance Directive for Health Caretakes effect.)

Who Cannot Make Decisionsabout ANH or Other Life-

Sustaining Treatment

An Advance Directive for Health Careis the only document that can em-power a patient’s representative tomake decisions regarding ANH andother life-sustaining treatment. Adurable power of attorney cannotgrant that authority. Nor can a court-appointed guardian make the deci-sion unless the court has issued aseparate order.

A representative appointed as guard-ian or under a durable power ofattorney can make other medicaldecisions, including signing a DNRConsent form.

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A health care proxy named in an AdvanceDirective for Health Care can make decisionsabout life-sustaining treatment. However, thehealth care proxy cannot make decisions thatcontradict the express wishes of the patient.If the patient’s wishes are not known, thehealth care proxy should try to determinewhat the patient would have wanted based onthe patient’s values and personal views. Ifthere is not sufficient information to deter-mine what the patient would have wanted, thedecision can be made based on what is in thebest interest of the patient.

Oklahoma law is less clear about when life-sustaining treatment other than CPR or ANH

can be withheld or withdrawn absent anAdvance Directive for Health Care. Theguiding principle should always be to honorthe patient’s wishes.

Oklahoma law specifies that substitutedecisionmakers should first consider andhonor the known wishes of the patient. Ifthere is not sufficient information about whatthe patient would have wanted, the surrogateis to use reasonable judgment in determiningwhat the patient would have wanted based onthe patient’s values. If this is not possible, thedecision should be made based on what is inthe best interest of the patient.

Non Life-Sustaining Treatment

There is more flexibility in who can make nonlife-sustaining treatment decisions on behalfof incapacitated patients. A health care proxynamed in an Advance Directive for HealthCare can make health care decisions, as canan attorney-in-fact appointed by a DurablePower of Attorney containing health carepowers. A guardian of the person appointedby a court may also make decisions aboutmost non life-sustaining treatments. (Seepage 23 for more on guardians’ authority.)

Often health care providers will look to closerelatives for guidance. While Oklahoma doesnot have a statute explicitly authorizingspouses or relatives to make health caredecisions on behalf of incapacitated familymembers, Oklahoma law does state a strongpreference for keeping medical treatmentdecisions out of the courts whenever pos-sible.


Questions for Surrogates

When discussing an incapacitatedpatient’s values and preferences withsurrogates, consider using the follow-ing discussion questions:

• What was he like before he gotsick? What was important tohim?

• Did he ever know someone whowas seriously ill? Did he talkabout how he might want to betreated if he were in a similarsituation?

• Did he ever discuss what hewould want if he could not makedecisions for himself?

• Did he ever talk about his fearsor wishes about illness or death?

• Was he religious or spiritual?How might his beliefs shape hisdecision?

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Disclosing Health Information

The Health Insurance Portability and Ac-countability Act (HIPAA) provides nationalstandards to protect patients’ medicalrecords and personal health information.There has been much confusion and concernabout what patient information HIPAA doesand does not allow health care providers todisclose.

HIPAA does allow the sharing of health careinformation with surrogates, family members,and others. If a patient has capacity, a healthcare provider may share information withfamily and friends if the patient consents.Consent can be given by an affirmative agree-ment or by failing to object after being givenan opportunity to do so. Health care provid-

ers can exercise professional judgment todetermine whether the patient consents.

If a patient lacks the capacity to consent,health care providers can share informationwith family and friends if, in their profes-sional judgment, it would be in the bestinterest of the patient to do so. If someonebesides a family member or friend is seekinginformation, the health care provider mustfirst determine that the person is involved inthe patient’s health care or payment for healthservices.

Whether or not a patient has capacity, onlythe information the third party needs to knowshould be shared. For example, family mem-bers may be informed of the patient’s currentcondition, but not about the patient’s pastunrelated health problems.

HIPAA also permits friends and family mem-bers to pick up prescriptions, medical sup-plies, x-rays, and other similar medical itemson behalf of a patient. Again, health careproviders are to use their professional judg-ment to determine if it is in the best interest ofthe patient to allow third parties to pick upthese items.

Consent to Participate inExperimental Treatment

Oklahoma law allows family mem-bers to consent on behalf of anincapacitated patient to participationin a board-approved experimentaltreatment, test, or drug. If no guard-ian, attorney-in-fact, or health careproxy has the authority, the follow-ing persons can consent, in order ofpreference: spouse, adult child,parent, adult sibling, or other relativeby blood or marriage.

A guardian must get prior courtpermission unless the treatment isnecessary in an emergency to savethe patient’s life.

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Document Who Can Execute

Advance Directive forHealth Care

Durable Power ofAttorney

DNR Consent

Letters ofGuardianship

HIPAA Authorization

Patient Representatives & Legal Documents

The patient, if hascapacity

Patient Representatives and LegalDocuments

If a patient lacks capacity to make medicaldecisions, a representative often must step into make decisions on behalf of the patient.Representatives can be appointed in advanceby the patient or may be appointed by acourt.

There are different legal documents that grantrepresentatives authority and/or provideinformation about patient wishes. Theseinclude:• Advance Directive for Health Care• Durable Power of Attorney• DNR Consent• Letters of Guardianship• HIPAA Authorization

Each type of document has different require-ments for valid execution, takes effect atvarious times, and serves a different purpose.

Advance Directive for Health Care

An Advance Directive for Health Care isused to communicate in advance a patient’sinstructions regarding medical treatment,including life-sustaining treatment, in theevent the patient is not able to make deci-sions in the future. It is also used to appointrepresentatives, called “health care proxies,”who can make all health care decisions onbehalf of the person who executed the docu-ment.



If patient lacks capac-ity, an attorney-in-factfor health care, ahealth care proxy,guardian of the per-son, or attendingphysician

A judge, upon afinding that the patientis incompetent


If patient lacks capac-ity, a representativeauthorized to makehealth care decisions

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What It Can Do Requirements When It Takes Effect


Evidence the patient’s wishesregarding medical treatment,including life-sustaining treatment

Appoint representatives to makeall health care decisions, includinglife-sustaining treatment decisions

Evidence the patient’s wishesregarding organ or body donation

Patient must have been at least18 and capacitated

Signed by the patient and by 2witnesses who were at least 18and who are not going to inheritfrom the patient

NO notary required

When attending physician andsecond physician determine thepatient is unable to make healthcare decisions

Appoint a representative to makefinancial and/or health caredecisions, as described in thedocument

CANNOT grant authority to makelife-sustaining treatment decisions

Patient must have been at least18 and capacitated

Signed by the patient and by 2witnesses who were at least 18,not named as attorney-in-fact,and not related to those namedor to the patient

YES notary required

Either immediately or upon theincapacity of the patient, depend-ing on the language of the docu-ment

Evidence the patient’s wish not toreceive CPR or other interventionto restart heart or breathingfunction

Signed by patient, representative,or physician

If signed by patient or represen-tative, signed also by 2 witnesseswho were at least 18 and who willnot inherit from the patient

If signed by physician, no wit-nesses required

NO notary required

Immediately

Appoint a guardian to makefinancial and/or medical decisions

CANNOT grant authority to makelife-sustaining treatment decisionswithout a separate court order

Signed by a judge Immediately

Grants third party access topatient’s medical records andinformation

Signed by patient or representa-tive

NO notary required

Immediately, unless specifiesotherwise

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What Does an Advance Directive forHealth Care Authorize?

An Advance Directive for Health Care autho-rizes a health care proxy to make all healthcare decisions on behalf of an incapacitatedpatient. This includes both life-sustainingtreatment decisions and other health caredecisions.

The health care proxy must make decisionsconsistent with the known wishes of thepatient. This means the choices made by thepatient in the Living Will section of the Ad-vance Directive must be followed. For ex-ample, if a patient instructed that no life-sustaining treatment be administered if hebecame terminally ill, the health care proxy

does not have the authority to override theseinstructions. Likewise, if a patient elected alltreatment in her Living Will, the health careproxy does not have the power to authorizethe withholding or withdrawal of life-sustain-ing treatment.

The health care proxy may also know thepatients’ wishes through other sources,including writings or conversations the pa-tient had with the proxy or others.

Sometimes there is not enough evidence toshow what the patient would have wanted. Inthat case, the health care proxy should usereasonable judgment to determine what thepatient would have chosen, based on theknown values of the patient. If that is notpossible, the decision should be made basedon what the proxy reasonably determines isin the best interest of the patient.

When Does It Take Effect?

An Advance Directive for Health Care onlytakes effect if a patient is unable to makemedical decisions. For purposes of activatingan Advance Directive for Health Care, apatient lacking capacity is called a “qualifiedpatient.”

To activate an Advance Directive for HealthCare, the patient’s attending physician andanother physician who has examined thepatient must determine that the patient isunable to make an informed decision regard-ing health care, including life-sustaining treat-ment.


There is a common misperceptionthat health care providers are notlegally allowed to witness AdvanceDirectives or other legal documents.It is perfectly legal for healthcare providers to witness signa-tures of patients.

For many patients, health care pro-viders may be the only people avail-able to witness their planning docu-ments. Refusal to serve as witnessescan be a significant obstacle forsome patients wanting to completeAdvance Directives, Durable Powersof Attorney, or DNR Consent forms.

If an institution has internal policiesforbidding employees from servingas witnesses, staff should take anactive role in finding alternativewitnesses for patients.

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There is no need to refer to a patient’s Ad-vance Directive for Health Care for guidance,nor can a health care proxy make decisions,until the patient has been determined to be aqualified patient.

Who Can Complete an Advance Directivefor Health Care?

Anyone who is at least 18 and has sufficientmental capacity can complete an AdvanceDirective for Health Care. A person is pre-sumed to have sufficient mental capacityunless there is evidence to the contrary.

Each person must complete his own Ad-vance Directive for Health Care. No one cancomplete an Advance Directive for HealthCare for someone else. Forging or falsifyingan Advance Directive for Health Care is afelony.

How To Tell If an Advance Directive forHealth Care Is Valid

In order to be valid, an Advance Directive forHealth Care must meet certain requirements.The person who executed the form musthave been at least 18 and of sound mind. Ifthe patient filled out the Living Will section ofthe form, the patient’s choices regarding life-sustaining treatment should be initialed. Thedocument should be dated and signed by thepatient.

It should also be signed by two witnesseswho are not related to the patient or going toinherit from the patient. While not specificallyprohibited, the people named as health careproxies should not serve as witnesses.

An Advance Directive for Health Care doesnot need to be notarized. Unless they knowinformation to the contrary, health care pro-viders can presume that an Advance Direc-tive for Health Care is valid.

Copies of an Advance Directive form are justas valid as the original.

Once it is determined that the Advance Direc-tive for Health Care was validly executed, thenext step is to make sure it has not beenrevoked. If the patient has completed morethan one Advance Directive for Health Care,only the most recently executed form is ineffect.

What about Advance Directives Executedin Other States?

Oklahoma law recognizes Advance Directivesfrom other states as long as the person whoexecuted the form was a resident of thatother state at the time, was in that state whenthe form was completed, and the form com-plies with either the law of that other state or


Checklist for an AdvanceDirective for Health Care

Patient initialed next to choicesregarding life-sustaining treatmentdecisionsDated and signed by the patientSigned by two witnesses who arenot related to the patient and willnot inherit from the patientDocument has not been revokedby the patient

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with Oklahoma law. For example, NewMexico law does not require that an AdvanceDirective be witnessed. Therefore, an Ad-vance Directive executed by a New Mexicoresident in New Mexico would be valid inOklahoma even if not witnessed.

Unlike Oklahoma’s Advance Directive form,forms from many other states do not sepa-rate ANH from other life-sustaining treatmentchoices. For example, Florida’s Living Willonly refers to “life-prolonging procedures”and does not address ANH specifically.Under Oklahoma’s Advance Directive Act,this alone would not be sufficient to authorizethe withholding or withdrawal of ANH.

Other states’ forms specifically authorize thewithholding or withdrawal of ANH, but donot provide separate provisions dealing onlywith ANH that are to be separately markedby the patient. For example, the New Jerseyform specifically includes ANH in its defini-tion of life-sustaining treatment. But, it doesnot provide a place for a patient to separatelyexpress his wishes about ANH.

Under Oklahoma law, as long as the personwho executed the form was not a resident ofOklahoma or in Oklahoma, a form like NewJersey’s can be deemed to authorize thewithholding or withdrawal of ANH. If theperson was an Oklahoma resident or inOklahoma at the time the form was com-pleted, there must be a separate sectiondealing only with ANH that is separatelymarked (such as by initials). This can beadded in the person’s own words.

If the patient’s Advance Directive does notmeet the requirements of Oklahoma law, thatdoes not necessarily mean that the patientmust receive ANH. The attending physicianmay still authorize the withholding or with-drawal of ANH if that physician knows thepatient gave informed consent for this whencompetent. Likewise, the other ways ofovercoming the presumption of providingANH still apply (see pages 7-10). The focusshould always be on honoring the knownwishes of the patient.

What about the Five Wishes® Form?

Some patients choose to use the FiveWishes® advance directive, a form developedand distributed by the national organizationAging with Dignity. As long as the form wasproperly executed under Oklahoma statute, itis valid in Oklahoma.

However, unlike Oklahoma’s Advance Direc-tive form, the Five Wishes® form does notseparate AHN from other life-sustainingtreatment. Instead, it defines “life-supporttreatment” to include all treatment designed toprolong life, including tube feeding.

As long as the person who executed the formwas not a resident of Oklahoma at the timeand the form was completed outside ofOklahoma, the Five Wishes® form can autho-rize the withholding or withdrawal of ANH. If


For more information about theforms and requirements of otherstates, go to www.caringinfo.org.

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the person was an Oklahoma resident at thetime the form was completed, or if the formwas completed in Oklahoma, there must be aseparate section dealing only with ANH thatis separately marked. This can be added inthe person’s own words.

If the Five Wishes® form is not by itselfsufficient to overcome the presumption ofadministering ANH, the attending physicianmay still authorize the withholding or with-drawal of ANH if that physician knows thepatient gave informed consent for this whencompetent. Likewise, the other ways ofovercoming the presumption of providingANH still apply (see pages 7-10). The focusshould always be on honoring the knownwishes of the patient.

What about Older Advance DirectiveForms?

The Oklahoma Advance Directive for HealthCare form was updated by statute in 2006.Advance Directive forms that were validlyexecuted prior to then are still valid. How-ever, they are limited to their terms. Forexample, older forms may not address end-stage conditions. Patients who are ableshould be encouraged to update their olderAdvance Directives using the current form.

How Can an Advance Directive BeChanged or Revoked?

If a patient wants to make changes, he shouldcomplete a new Advance Directive form. Forexample, if a patient wants to change thename of his health care proxy, he shouldcomplete a new form rather than crossing outthe name and writing in the replacement.

All patients can revoke their Advance Direc-tives for Health Care, even those who havebeen determined to lack capacity. A patientcan revoke part or all of an Advance Direc-tive in any manner sufficient to communicatethe intent to revoke. This may include cross-ing out sections or the entire form, tearing upthe form, or stating orally or in writing that ithas been revoked. Anyone who witnesses apatient revoke an Advance Directive shouldinform the patient’s health care providers assoon as possible.

The revocation becomes effective as soon asit has been communicated to the attendingphysician or other health care provider. Oncea health care provider is aware that a patient’sAdvance Directive has been revoked in partor entirely, the revocation must be docu-mented in the patient’s medical record.

It is a felony to willfully hide or withholdknowledge that someone has revoked herAdvance Directive for Health Care.

Only the patient can revoke an AdvanceDirective for Health Care. No one else canrevoke an Advance Directive on behalf of apatient. It is a felony to willfully hide, change,or destroy someone else’s Advance Directivefor Health Care without permission.

Can a Health Care Provider Refuse toComply with an Advance Directive?

Before an Advance Directive takes effect, anyphysician or other health care provider givena patient’s Advance Directive who is unwill-ing to comply with the patient’s wishes mustpromptly tell the patient.


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A physician or other health care provider mayrefuse to comply with a patient’s AdvanceDirective for Health Care once it becomesactive. However, Oklahoma law requires thatshe promptly take all reasonable steps toarrange care for the patient by another pro-vider who will comply. Furthermore, a physi-cian or other health care provider must com-ply with an Advance Directive pending trans-fer to another provider if refusal would likelyresult in the death of the patient. Willfullyfailing to arrange for alternate care for apatient constitutes unprofessional conduct.

Durable Power of Attorney

A durable power of attorney is a legal docu-ment in which one person gives anotherperson the power to act on her behalf. Theperson who executes a durable power ofattorney is called the “principal.” The personwho is given the power to act on behalf ofthe principal is called the “attorney-in-fact” or“agent.”

What Does a Durable Power of AttorneyAuthorize?

Each durable power of attorney is differentand must be read carefully to determine whatit authorizes. Some are narrow and coveronly a few types of decisions. Others arebroad and encompass all financial and healthcare decisions.

Furthermore, durable powers of attorneymay sometimes include limitations on author-ity. For example, some may require morethan one person to sign off on certain deci-sions. Others may contain specific instruc-

tions regarding health care that an attorney-in-fact must follow.

A durable power of attorney can never grantsomeone the authority to execute an AdvanceDirective for Health Care for the principal.Nor can it give the power to make life-sus-taining treatment decisions unless it complieswith the requirements of an Advance Direc-tive for Health Care. This means that anyparagraph authorizing the attorney-in-fact tomake life-sustaining treatment decisions mustbe separately initialed or signed by the princi-pal.


There are two types of durable powers ofattorney. One type takes effect as soon as itis signed. The other type, called a “spring-ing” durable power of attorney, takes effectonly if the principal becomes incapacitated.

Each durable power of attorney shouldinclude a section that states whether thedocument takes effective immediately or onlyif the principal becomes incapacitated.

Springing durable powers of attorney gener-ally will also include a description of whenthe principal will be determined to be inca-pacitated. Usually, a determination of inca-pacity requires written documentation by twophysicians.

If a durable power of attorney requires writ-ten documentation of the principal’s incapac-ity, it does not take effect until that documen-tation is attached.


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Who Can Complete a Durable Power ofAttorney?

Anyone who is at least 18 and of sound mindmay execute a durable power of attorney.

Each person must execute her own durablepower of attorney. However, if the principalis mentally competent but physically unableto sign her name, she may direct another tosign it for her on her behalf and in her pres-ence.

How To Tell If a Durable Power ofAttorney Is Valid

A valid durable power of attorney that in-cludes health care powers should be signedby the principal and two witnesses. Wit-nesses must be at least 18 and not related byblood or marriage to the principal or toanyone named as attorney-in-fact. A personnamed as attorney-in-fact cannot also serveas a witness.

Durable powers of attorney that includehealth care powers must be notarized.

Once it is determined that the durable powerof attorney was validly executed, the nextstep is to make sure it has not been revoked.

If the patient has completed more than onedurable power of attorney, only the mostrecent validly executed one is in effect.

Copies of a durable power of attorney areusually just as valid as the original, unless thedocument states otherwise. Often the durablepower of attorney will address this explicitly.

What about Durable Powers of AttorneyExecuted in Other States?

Oklahoma law recognizes durable powers ofattorney from other states as long as theyconform to the requirements of a validlyexecuted durable power of attorney underOklahoma law (see section above).

How Can a Durable Power of AttorneyBe Changed or Revoked?

The principal may make changes to a durablepower of attorney in a separate document,often called “Amendment to Durable Powerof Attorney.” Changes should never be madedirectly on the original document. Anyamendment must be signed, witnessed, andnotarized in the same manner as a durablepower of attorney.

As long as the principal is still of soundmind, she can revoke her power of attorneyin any manner and at any time. The revoca-tion becomes effective when the attorney-in-fact is informed that the power of attorneyhas been revoked.


Checklist for a DurablePower of Attorney

Signed by the patientSigned by two witnesses who arenot named as attorney-in-fact norrelated to the principal or to any-one named as attorney-in-factNotarizedDocument has not been revokedby the patient

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A durable power of attorney is automaticallyrevoked when the principal dies and theattorney-in-fact becomes aware of theprincipal’s death.

Can a Physician Refuse to Honor aDurable Power of Attorney?

There is no statute requiring that a physicianor other health care provider honor a durablepower of attorney by allowing the attorney-in-fact to exercise his authority.

Do-Not-Resuscitate (DNR)Consent

A Do-Not-Resuscitate (DNR) Consent formdocuments a patient’s wish that, should thepatient’s heart or breathing stop, no medicalprocedures are to be used to restore heartfunction or breathing.

What Does a DNR Consent Authorize?

A DNR Consent form instructs health careproviders, including EMS personnel, not togive a patient CPR. The form only applies toemergency medical treatment aimed at restor-ing breathing or heart function. It does notaddress any other life-sustaining medicaltreatment.


A DNR Consent form takes effect as soon asit is signed. It is very important that patientsand caregivers understand this fact. A DNRConsent form is a “near death” documentthat should only be used in cases when CPRor other medical procedures to restorebreathing and heart functions would be inap-propriate or unwelcome.

Who Can Complete a DNR Consent?

If the patient has capacity, the patient maysign a DNR Consent form. If the patientlacks sufficient capacity, an authorized repre-sentative may sign a DNR Consent form onbehalf of the patient. Authorized representa-tives can be one of the following:• Attorney-in-fact acting under a Durable

Power of Attorney that includes healthcare decisionmaking

• Health care proxy acting under anAdvance Directive for Health Care

• Guardian of the Person

If the patient is under the care of a health carefacility, a representative must be informed inwriting by the patient’s attending physicianthat the representative is required to base thedecision on what the incapacitated patientwould have wanted. The attending physicianshould also encourage the representative toconsult family members and others close tothe patient before making the decision. Theattending physician should explain the conse-quences of signing a DNR Consent form tothe representative and others being consulted.

The reason why a representative, rather thanthe patient, signed the DNR Consent formand evidence that the nature and conse-quences of the decision were explained mustbe documented in the patient’s medicalrecords.

In the event an incapacitated person lacks anauthorized representative, an attending physi-cian may sign a DNR Consent form onbehalf of the patient. The attending physician


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must know by clear and convincing evidencethat the patient, when competent, made aninformed decision to forego CPR. The at-tending physician may know the patient’swishes based on oral or written communica-tion between the patient and family members,friends, or health care providers. Informationabout the patient’s wishes may come fromthe patient directly or from third parties.

How To Tell If a DNR Consent Is Valid

Oklahoma law provides a standardized DNRConsent form. The form should be signed bythe patient, if competent at the time. If thepatient is not competent, the form may besigned by an authorized representative or theattending physician.

If the form was signed by the patient orrepresentative, it should be dated and signedby two witnesses who were at least 18 anddid not stand to inherit from the patient. If theform is signed on the back by the physician,it does not need to be witnessed.


Checklist for a DNR ConsentForm

Signed by the patient, an autho-rized representative, or an attend-ing physicianSigned by two witnesses who willnot inherit from patient (unlesssigned by physician, then nowitness required)Document has not been revokedby the patient or representative

A DNR Consent does not need to be nota-rized or signed by a physician. Copies of aDNR Consent are just as valid as the original.

DNR Consent forms other than the oneprovided by Oklahoma law may be valid ifthey comply with Oklahoma law. For ex-ample, a patient could write instructions in anAdvance Directive for Health Care directingthat CPR not be performed.

What about DNR Forms Executed inOther States?

Oklahoma law does not specifically addresswhether or not DNR forms from other statesare recognized in Oklahoma. If the form issimilar to Oklahoma’s form, it should behonored. Furthermore, any form that com-municates the wishes of the patient regardingCPR may be used as evidence of thepatient’s wishes by a representative or attend-ing physician to sign an Oklahoma DNRConsent form on behalf of an incapacitatedpatient.

How Can a DNR Consent Be Changed orRevoked?

If a patient is receiving health care services,she may revoke a DNR Consent by tellingthe physician or other health care providereither in writing or verbally. Any health careprovider who is notified that a patient hasrevoked a DNR Consent must immediatelyinform the attending physician. As soon asthe attending physician is informed that theDNR Consent is revoked, that physicianmust immediately cancel the DNR Order andnotify the other health care professionalsproviding care to the patient.

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If a patient is not receiving health care ser-vices, the DNR Consent may be revoked bydestroying the form and removing all DNRidentification from the person (e.g., a DNRbracelet). The patient is responsible for tellingher attending physician that her DNR Con-sent has been revoked.

An incapacitated patient’s representative mayalso revoke a DNR Consent by telling aphysician or other health care provider eitherverbally or in writing. The representative mayalso destroy the DNR Consent form andremove all DNR identification from thepatient’s body. It is up to the representativeto notify the attending physician that theDNR Consent has been revoked.

Can Physicians or Other Health CareProviders Refuse To Issue or Complywith a DNR Consent?

If a patient goes into cardiac or respiratoryarrest, physicians and health care providersmust comply with the patient’s wishes ex-pressed in a DNR Consent. Likewise, Okla-homa law requires that, when given a DNRConsent form, health care providers takeappropriate actions to comply.

If a physician knows that she will not be ableto comply with a DNR Consent, that physi-cian must take reasonable steps to promptlyinform the patient or patient’s representativeof the refusal. The physician must alsopromptly take all reasonable steps to arrangefor care of the patient by another physicianor health care provider who will comply.


Required Policies RegardingDNR Consent and Orders

Health care agencies are required tohave written policies and procedures toensure patients’ rights are honored.The policies and procedures mustrequire that:

• All decisions regarding CPR are tobe made by the patient unless thepatient lacks capacity

• The reason a representative,rather than the patient, is makinga decision regarding CPR must bedocumented in the patient’srecord

• Representatives must be givenwritten materials instructing themthat they are to make their deci-sions based on what the patientwould have decided if able

• Physicians are to encourageconsultation among family mem-bers and others close to thepatient

• Physicians are to explain to pa-tient representatives and familymembers the nature and conse-quences of the decision to bemade and to document in thepatient’s record the fact that suchan explanation was given

• Patients, health care providers,and the community must beprovided with ongoing educationby the health care agency aboutthe use of the DNR Consent.

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Guardianship

A guardian is a person appointed by a courtto make decisions on behalf of an incapaci-tated or partially incapacitated person. Anincapacitated person under a guardianship iscalled a “ward.”

When a judge appoints a guardian, she willissue an order. She will also issue Letters ofGuardianship. The guardianship order mayspecify the scope of the guardian’s authority.The Letters of Guardianship are evidence thatthe guardianship has taken effect.

What Does a Guardianship Authorize?

There are two types of guardianship in Okla-homa. Guardianship of the Person can grantthe authority to make decisions regarding theward’s personal and health care. Guardian-ship of the Property (sometimes calledGuardianship of the Estate) can grant thepower to manage the ward’s finances andassets. Usually the same person is appointedas Guardian of the Person and the Property(or Estate). However, if a person is onlyappointed Guardian of the Property (orEstate), she probably does not have authorityto make personal care or medical decisionson behalf of the ward.

Guardianships can also be General or Lim-ited. A General Guardian of the Person hasbroad authority to make almost all decisionsabout the ward’s personal and health care. ALimited Guardian of the Person has only theauthority specifically granted by the court.Usually, these powers are described in acourt order.

In some cases, co-guardians may be ap-pointed. Co-guardians must act jointly unlessone has given the other written permission toact for them both or if the court order allowsthem to act independently. The court mayalso issue an order declaring one of theguardians to be unable to carry out the dutiesof guardianship and allowing the remainingguardian to act alone. If more than twoguardians are appointed, the majority of theguardians may act.

A guardian can sign a DNR Consent withouta separate court order. The power of aguardian to authorize the withholding orwithdrawal of other life-sustaining treatmentis very limited.

If the ward has an Advance Directive forHealth Care, the guardian can carry out thewishes expressed in the document. However,

Limitations on Guardians’Authority

Unless there is a life-threatening emer-gency, a guardian must get courtpermission to consent to certain nonlife-sustaining medical procedures onbehalf of the patient, including:

• abortion• psychosurgery• removal of a bodily organ• experimental biomedical or be-

havioral procedure• participation in a biomedical or

behaviorial experiment.

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if the ward does not have an Advance Direc-tive, the guardian must obtain an order fromthe court authorizing the withholding orwithdrawal of life-sustaining treatment. Thiscan only be done at the time the ward is inneed of such treatment.


A guardianship takes effect as soon as Let-ters of Guardianship are issued by the court.

Who Can Appoint a Guardian?

Only a district court judge can appoint aguardian.

How To Tell If Guardianship Papers AreValid

Guardianship orders and Letters of Guard-ianship must be signed by a judge. Letters ofGuardianship should also be signed underoath by the guardian.

Make sure there is a file stamp stating thecourt and date of filing. This is usually in the

upper right hand corner on the first page ofthe document. If you have doubts, you canask for a certified copy. This is a copy thathas been embossed and signed by a deputycourt clerk confirming that the copy matchesthe original filed with the court clerk’s office.

Guardianship files are not public record. Ajudge may authorize the release of part or allof a guardianship file.

What about Guardianships Granted inOther States?

Every state’s guardianship laws are different.Transferring guardianship from one state toanother is often a complicated legal process.However, it is fairly safe to say that, at leastfor wards who are only visiting Oklahoma,guardianships granted in other states remainvalid and should be honored.

Some state laws limit a guardian’s authorityto move a ward to a different county or state.Generally, when a ward has permanentlymoved to a different state, the guardianshould have the guardianship transferred to acourt in the new state.


Checklist for Letters ofGuardianship

Signed by a judgeSigned by the guardian underoathSpecifies that it grants Guardian-ship of the Person

DHS Guardianship

The Department of Human Services(DHS) may be appointed guardian ofan incapacitated person who hasbeen the victim of abuse, neglect, orexploitation if that person is at sub-stantial risk of death or seriousharm. As guardian, DHS cannotconsent to or deny consent to a DNRorder or other life-sustaining treat-ment. Only the district court over-seeing the guardianship has author-ity to make life-sustaining treatmentdecisions.

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HIPAA Authorization

The Health Insurance Portability and Ac-countability Act (HIPAA) allows a patient ora representative to execute an “authorization”giving health care providers permission toshare protected information with named thirdparties.

What Does a HIPAA AuthorizationAuthorize?

A HIPAA Authorization permits the disclo-sure of otherwise protected medical informa-tion to third parties named in the document.Each document should be read to determinethe scope and timeframe of the authorization.


Unless otherwise specified, a HIPAA Autho-rization will take effect as soon as it is signed.A HIPAA Authorization remains in effect untilit is revoked or it expires.

Who Can Execute a HIPAAAuthorization?

The patient or the patient’s representativewho is authorized to make health care deci-sions may sign an authorization. If the autho-rization is signed by a representative, a de-scription of the representative’s authoritymust be included.

How to Tell if a HIPAA Authorization isValid

Federal regulations outline the basic require-ments of a valid HIPAA Authorization. First,it must contain a specific and meaningfuldescription of the information that can beused or disclosed. Guidelines provided by


Checklist for a HIPAAAuthorization

Describes information to be usedor disclosedDescribes the person(s) or classesauthorized to disclose the informa-tionDescribes the person(s) or classesauthorized to receive the informa-tionStates an expiration date or de-scribes an expiration eventIncludes a statement about thepatient’s right to revoke and howto revokeStates that a person who receivesthe information may disclose it toothers, and it may thereby lose itsprotected statusSigned and dated by the patient orrepresentativeIf signed by the representative, adescription of the representative’sauthorityThe document is not known tohave expired or been revoked

These requirements apply to HIPAAAuthorizations that are not being pro-vided to the patient by an entity cov-ered by HIPAA.

There are additional requirements forvalid HIPAA Authorizations given topatients by covered entities, such ashospitals, on behalf of themselves orother covered entities.

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the U.S. Department of Health and HumanServices state that this description can bebroad, such as “entire medical record.”However, the guidelines warn that generalstatements such as “all protected healthinformation” are likely too vague becausepatients may not understand the scope of theinformation covered.

Second, the authorization must identify theperson(s) or class of persons who are autho-rized to disclose the information. It is notnecessary to list individual health care provid-ers if the authorization describes classes orcategories of providers. For example, adocument may authorize “any physician,health care professional, hospital, medicalfacility, or other health care provider” todisclose information. It may also simply say“all medical sources.”

Third, the document must identify theperson(s) or class of persons who are autho-rized to request and receive the information.Often this will be specifically named peopleor entities. However, an authorization canpermit disclosure to a class of people, suchas employees of a particular company.

A HIPAA Authorization should also containan expiration date or event. If the expirationis not a fixed date, it must be based on eitherthe patient (e.g., when the patient reaches acertain age) or the purpose of the disclosure(e.g., when enrollment in a plan ends).

A HIPAA Authorization must include a state-ment describing the patient’s right to revokethe authorization and describe how the pa-

tient can revoke. It must also contain a state-ment that information used or disclosed as aresult of the authorization may be redisclosedby the person who received the information,thereby losing its protection.

The patient must sign and date the authoriza-tion. If the authorization was executed by arepresentative, the document should state thesource of this representative’s authority.

There is no requirement under federal orOklahoma law that a HIPAA Authorization benotarized or witnessed. Copies are as valid asthe original.

How Can a HIPAA Authorization BeRevoked?

A HIPAA Authorization can be revoked inwriting at any time. The revocation takeseffect when it is received by the health careprovider who was previously authorized todisclose information.

Can Physicians or Other Health CareProviders Refuse To Comply with aHIPAA Authorization?

A physician or other health care provider canrefuse to disclose medical information if hereasonably believes the patient may be sub-ject to abuse or neglect by the person re-questing the information, or if he otherwisebelieves releasing the information would putthe patient in danger.

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Protection from Liability

Oklahoma law protects physicians and otherhealth care providers from liability if they actreasonably and in good faith. Physicians arerequired to use their best judgment, exerciseordinary care, and apply the knowledge andskills possessed and used by other physi-cians in good standing who are engaged inthe same field of practice. This is a nationalstandard of competence.

Absent contrary knowledge, physicians andother health care providers can presume thatdocuments such as Advance Directives forHealth Care are valid. Health care providerscannot be held liable if they reasonably relyon documents that they were unaware hadbeen revoked or were not validly executed.

Physicians and other health care providerscan also presume, absent evidence to thecontrary, that patients have sufficient capacityto make decisions about their medical care.

Legal Requirements

Both state and federal law impose require-ments on health care organizations and pro-fessionals regarding advance planning formedical treatment and honoring patients’wishes.

Informing Patients of Their Rights

Most hospitals, home health care agencies,hospice organizations, HMOs, and nursinghomes are required to provide patients withwritten information regarding their rights tomake medical decisions, including the right toexecute planning documents such as Ad-

vance Directives. Generally, this informationis provided to patients at the time of admis-sion or prior to the initiation of services.

In the event state law changes, written materi-als provided to patients must be updatedwithin 90 days from the effective date of thechange.

Health care institutions must also providepatients with written information about theirpolicies regarding implementing patients’treatment preferences. If the organization hasan institutional objection to honoring certainwishes, patients must be given written state-ments of limitation that describe the range ofmedical conditions or procedures affectedby the objection. These statements must alsoclarify the difference between objections ofthe institution as a whole and objectionsraised by individual health care providers.These statements of limitation should cite tothe legal authority permitting such objections.

Documenting Patients’ Wishes

In addition to providing patients with infor-mation, health care organizations are requiredto have systems in place for documentingwhether patients have Advance Directives orDNR Consents. They are also required tohave policies and procedures designed toensure patients’ wishes are honored.

Other Legal & Ethical Issues

While health care providers mustgive patients information aboutAdvance Directives and other plan-ning documents, they cannot requirepatients to complete these forms.

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POLST Forms

POLST, which stands for PhysicianOrders for Life-Sustaining Treatment,is a system designed to improve thequality of end-of-life care by convert-ing patients’ preferences into medicalorders. A POLST form is a brightlycolored order form completed by ahealth care provider in consultationwith a patient or surrogate decision-maker. A POLST form does notreplace other forms like AdvanceDirectives or DNR Consents. Rather,it serves to translate those forms intomedical orders that go with thepatient and help to ensure thathealth care providers in differentsettings comply with the patient’send-of-life wishes. For more informa-tion about the POLST program, go towww.POLST.org.

Checklist of LegalRequirements

Does your facility . . .

Have written policies about docu-menting patients’ wishes, AdvanceDirectives, and DNR Consent orOrder forms?Ask patients if they have AdvanceDirectives or DNR Consent forms?Inform patients about their rightsto make medical decisions andcomplete Advance Directives andDNR Consent forms?Provide patients with currentAdvance Directive for Health Careand DNR Consent forms whenrequested?Make patients’ wishes and formspart of their medical records?Educate staff and patients aboutAdvance Directives, DNR Consentforms and patients’ rights?Treat patients equally whetherthey have an Advance Directive ornot?Promptly inform patients if youare unable to honor their ex-pressed wishes?Have systems in place to ensuredocumentation of patients’ wishesfollow the patients when they aredischarged or transferred?

A health care provider who is given a copy ofa patient’s Advance Directive or DNR Con-sent form must make it a part of the patient’smedical record. Likewise, these documentsshould follow the patient if transferred to adifferent facility or health care provider.

Honoring Patients’ Wishes

If a physician or other health care providerwould not be willing to comply with a com-petent patient’s Advance Directive for HealthCare or DNR Consent, she must promptlyinform the patient of this fact.

If the attending physician or other health careprovider is not willing to comply with anincapacitated patient’s Advance Directive forHealth Care or DNR Consent, that healthcare provider must promptly take all reason-able steps to arrange care for the patient byanother provider who is willing to comply. Ifrefusal to comply with the wishes of thepatient would likely result in the death of thepatient, the provider must comply with the

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patient’s treatment decision until the patient istransferred to another provider’s care. It isconsidered unprofessional conduct to refuseto arrange alternate care for a patient.

Ongoing Education

Health care agencies are required to provideongoing education to patients, staff, and thegeneral public about Advance Directives forHealth Care and DNR Consent forms. Agen-cies are also required to provide ongoingeducation to staff regarding organizationalpolicies and procedures.

Reporting Suspected Abuse, Neglect, orExploitation

If a physician or other health care profes-sional suspects abuse, neglect, or exploita-tion of a vulnerable person, she must make areport to the Department of Human Servicesor local law enforcement. Knowingly andwillingly failing to make such a report is amisdemeanor.

Anyone who makes a report in good faith isprotected from liability. Employers are notpermitted to retaliate against employees forreporting suspected abuse.

More information about the the signs ofcaregiver abuse, neglect, and exploitation canbe found on the Resource Center section ofthe Senior Law Resource Center’s website,www.OklahomaSeniorLaw.org.

Ethical Issues

Below is a brief discussion of some of thecommon ethical issues that arise when caring

for patients with diminished capacity, particu-larly at the end of life. Questions regardingthe ethical implications of treatment choicesshould be referred to the ethics committee ofthe health care facility.

Informed and Freely Given Consent

Patients have the right to exercise informedconsent when making medical decisions. Toexercise informed consent, patients musthave sufficient information about their medi-cal condition, treatment options, and likelyside effects and outcomes.

If a patient lacks the capacity to understandthe information about her condition andtreatment options, she cannot exercise in-formed consent. Likewise, if someone whohas power or influence over the patient isexerting pressure, the patient’s decision maynot be based on true consent.

Reporting Abuse, Neglect, orExploitation

If danger appears to be immediate,call 911.

Notify Adult Protective Services at(800) 522-3511.

If the suspected abuse is taking placein a nursing home or other long-term care facility, contact Oklahoma’sLong-Term Care Ombudsman at(405) 521-6734.

Notify the local police, sheriff, ordistrict attorney’s office.

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Withholding Treatment vs. WithdrawingTreatment

Never starting treatment may seem less prob-lematic than withdrawing treatment that hasalready been started. However, there is nolegal or ethical difference between withhold-ing and withdrawing treatment.

Withholding or Withdrawing ANH

Of all the life-sustaining treatments, withhold-ing or withdrawing artificially administerednutrition and hydration (ANH) is perhaps themost troubling to health care providers andthe general public. We associate ANH withthe basic human acts of eating and drinking.However, it is important to distinguish ANHfrom food and water. Delivering nourishmentand hydration through a tube inserted into thestomach is fundamentally different fromassisting a patient to take in food and liquidsby mouth.

ANH is a medical intervention that can causecomplications, including infection, bloating,loss of mobility, and discomfort. Rejectionof hydration and nutrition is a normal part ofthe dying process as the body’s functionsshut down. For patients at the end of life whoare not longer able to take in food or water,death is caused by the underlying medicalcondition, not by the removal of ANH.

Refusal of Treatment vs. Suicide

Refusing treatment may hasten death, but it isnot the same as committing suicide. When apatient refuses treatment, the cause of deathis the underlying illness or injury. Refusingtreatment is a legally protected right. Suicide

Double Effect

Patients at the end of life who expe-rience chronic and severe discomfortmay be given high doses of painmedication. Some of these medica-tions may have the side effect ofsuppressing breathing to the point ofhastening death. This is referred toas “double effect.”

As long as the purpose of the medi-cation is to treat pain and alleviatesymptoms, such treatment is bothlegal and ethical. However, morphineor other pain treatment cannot beadministered in high doses with theintent of causing death.

involves an act that directly causes death.There is no legal right to commit suicide.

Honoring a patient’s wish to forego treatmentis not assisted suicide. When a health careprovider withholds or withdraws life-sustain-ing treatment, the cause of death is the under-lying terminal condition. It is not illegal orunethical to withhold or withdraw unwantedlife-sustaining treatment. However, it is illegalin Oklahoma and in most other states toadminister a lethal dose of medication orotherwise act in a way that directly causes thedeath of a patient.

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Appendix A: Glossary of Key Terms

Advance Directive for Health Care: Adocument that enables a person to statewhat kind of life-sustaining treatment heor she would wish to receive or forego ifthe person is no longer able to makedecisions in the future. It also allows aperson to appoint decisionmakers, calledhealth care proxies.

Artificially Administered Nutrition andHydration (ANH): A method of deliver-ing liquids and nutrients through a tubeinserted through the nose and throat orsurgically placed into the stomach forpatients who cannot eat or drink bymouth.

Attending Physician: A licensed physicianwith primary responsibility for treatmentof a patient. A patient may have more thanone attending physician who share re-sponsibility.

Cardiopulmonary Resuscitation (CPR):Emergency measures used to restore heartor breathing function.

Do-Not-Resuscitate (DNR) ConsentForm: A form completed by a patient,representative, or physician to documenta patient’s wishes that, should thepatient’s heart or breathing stop, no medi-cal procedures are to be used to restoreheart function or breathing.

Do-Not-Resuscitate (DNR) Order: Aphysician’s order not to perform CPR ona patient.

Durable Power of Attorney: A documentused to delegate legal authority to anotherperson, called an attorney-in-fact.

Guardian: A person appointed by a courtand given power to make some or alldecisions on behalf of an incapacitatedperson.

Health Care Provider: Any physician,dentist, nurse, paramedic, psychologist,or other professional providing medical,dental, nursing, psychological, hospice,or other health care services.

Incapacity: The inability, because of physi-cal or mental impairment, to understandthe nature and likely consequences of adecision, to make an informed choice,and/or to communicate that choice.

Living Will: See Advance Directive forHealth Care.

Persistent Vegetative State: A deep andpermanent unconsciousness. Patients mayhave eyes open, but they have very littlebrain activity and are capable only ofinvoluntary and reflex movements.

Persistent Unconsciousness: See PersistentVegetative State.

Terminal Condition: An incurable conditionfrom which a person is expected to diewithin six months, even if treatment isadministered.

32

Appendix B: Information Resources

AARP(866) 295-7277Oklahoma Chapter (405) 632-1945www.aarp.org/endoflife

Adult Protective Services(800) 522-3511

Aging with Dignity(888) 5WISHES (594-7437)www.agingwithdignity.org

Alzheimer’s Association(800) 272-3900www.alz.orgOklahoma Chapter www.alz.org/alzokar

Alzheimer’s Resource Roomwww.aoa.gov/alz/index.asp

American Bar Association Commissionon Law and Aging(202) 662-8690www.abanet.org/aging

American Bar Association Health LawSectionwww.abanet.org/health

American Health Lawyers Association(202) 833-1100www.healthlawyers.org

American Medical Association(800) 621-8335www.ama-assn.org

American Nurses Association1-800-274-4ANAwww.nursingworld.org

Americans for Better Care of the Dying703-647-8505www.abcd-caring.org

Bazelon Center for Mental Health Law202-467-5730www.bazelon.org

CAAVA: Court-Appointed Advocates forVulnerable Adults(405) 522-3077

Center for Practical Bioethics(800) 344-3829www.practicalbioethics.org

Centers for Medicare and MedicaidServiceswww.cms.hhs.gov

Department of Health and HumanServiceswww.hhs.gov

Joint Commission on Accreditation ofHealth Care Organizationswww.jointcommission.org

Last Acts(877) 843-7953www.lastacts.org

Legal Aid Senior Law Project(405) 557-0014www.legalaidok.org/

Long-Term Care Ombudsman(405) 521-6734

National Gerontological NursingAssociationwww.ngna.org

National Hospice and Palliative CareOrganizationwww.nhpco.org

33

Appendix B: Information Resources

Oklahoma Alliance for Better Care of theDyingwww.okabcd.org

Oklahoma Attorney General’s Office(405) 521-3921 or (918) 581-2885www.oag.state.ok.us

Oklahoma Bar Association(405) 416-7000 or (800) 522-8065www.okbar.org

Oklahoma Department of HumanServices, Aging Services Division(800) 211-2116www.okdhs.org(Advance Directive forms can be orderedfrom DHS by calling (877) 283-4113 or byfax at (405) 524-9633)

Oklahoma Developmental DisabilitiesCouncil(405) 521-4984 or (800) 836-4470www.okddc.ok.gov

Oklahoma Disability Law Center(405) 525-7755 or (800) 880-7755www.oklahomadisabilitylaw.org

Oklahoma Health Care Authority(405) 522-7300www.ohca.state.ok.us

Oklahoma Hospice and Palliative CareAssociation(405) 606-4442, (866) 459-4152, or(800) 356-0622www.okhospice.org

Oklahoma Geriatric Education Center(405) 271-8199www.ouhsc.edu/OkGEC

Oklahoma Mental Health and AgingCoalitionwww.omhac.org

Oklahoma Palliative Care ResourceCenter(405) 271-1491, ext. 49194http://okpalliative.nursing.ouhsc.edu

Oklahoma Supreme Court Networkwww.oscn.net

Partnership for Caring(800) 658-8898www.partnershipforcaring.org

POLST: Physician Orders for Life-Sustaining Treatment Paradigmwww.POLST.org

Promoting Excellence in End-of-LifeCarewww.promotingexcellence.org

Senior Law Resource Center(405) 528-0858www.OklahomaSeniorLaw.org

Sooner Palliative Care Institute(405) 271-1491, ext. 49160www.nursing.ouhsc.edu/SPCI

Supportive Care Coalitionwww.supportivecarecoalition.org

TIME: Toolkit of Instruments toMeasure End-of-Life Carewww.chcr.brown.edu/pcoc/toolkit.htm

34

Appendix C: Relevant Law

Oklahoma Statutes

All of these statutes can be viewed atwww.oscn.net.

Hydration and Nutrition for IncompetentPatients Act (63 O.S. §§ 3080.1 – 3080.5)This act creates a presumption that all incom-petent patients consent to artificially adminis-tered nutrition and hydration (ANH). It alsolays out the circumstances when this pre-sumption can be overcome.

Oklahoma Advance Directive Act (63O.S. §§ 3101.1 – 3102A)This act codifies the constitutional right todecline medical treatment. It provides theAdvance Directive for Health Care formwhich can be used by patients to state whattypes of medical treatment they would wantat the end of life and to appoint representa-tives, called health care proxies, to makemedical decisions in the event the patientsever lack capacity.

Oklahoma Do-Not-Resuscitate Act (63O.S. §§ 3131.1 – 3131.14)This act creates a presumption that all pa-tients consent to cardiopulmonary resuscita-tion (CPR) if their heart or breathing stops. Italso describes the circumstances in whichthis presumption can be overcome. Thestatute includes the DNR Consent Form usedby patients, their representatives, or theirphysicians to choose not to consent to CPR.

Uniform Durable Power of Attorney Act(58 O.S. §§ 1071 – 1077)This act permits a competent adult to appointa representative (called an attorney-in-fact) tomake financial and/or medical decisions onhis or her behalf. It sets out the requirements

for appointing an attorney-in-fact and putssome limits on the types of medical decisionsthe attorney-in-fact can make.

Oklahoma Guardianship andConservatorship Act (30 O.S. §§ 1-101 –4-904)This act outlines the procedure by which aguardian may be appointed by a court tomake decisions, including medical decisions,on behalf of an incompetent person. It alsoplaces certain limits on guardians’ powers tomake medical decisions.

Advance Directive for Mental HealthTreatment Act (43A O.S. §§ 11-101 – 11-113)This act recognizes individuals’ right tocontrol their own mental health treatment. Itprovides the Advance Directive for MentalHealth Treatment form which can be used tostate in advance what kinds of mental healthtreatment a person consents to if he or she isever unable to make decisions. It also allowsfor the appointment of attorneys-in-fact tomake mental health treatment choices.

Protective Services for Vulnerable AdultsAct (43A O.S. §§ 10-101 – 10-111)This act defines abuse, neglect, and exploita-tion of vulnerable adults and requires healthcare professionals and others to report sus-pected abuse, neglect, or exploitation. It alsodescribes the procedure for investigatingallegations.

Abuse, Neglect, or Financial Exploitationby Caretaker (21 O.S. §§ 843.1 – 844)This act makes it a felony to abuse, neglect,or exploit a vulnerable adult. It makes verbalabuse of a vulnerable adult a misdemeanor.

35


Federal Statutes & Regulations

Health Insurance Portability andAccountability Act (HIPAA)This federal act and accompaning regulationscreates national standards for giving patients’control over their personal health information.Among other things, the act and regulationsput limits on who can access private medicalrecords. An excellent source for guidance onHIPAA laws and regulations is the U.S.Department of Health and Human Serviceswebsite www.hhs.gov/hipaafaq.

Patient Self-Determination Act (PSDA)The federal law commonly referred to as thePatient Self-Determination Act requires mosthealth care providers, including hospitals,nursing homes, hospices, HMOs, and homehealth agencies, to provide patients withinformation about advance directives. Gener-ally this is done at admission by providing awritten handout about patients’ rights tomake health care decisions and by givingpatients the opportunity to make advancedirectives part of their medical records. Thelaw also prohibits health care providers fromdiscriminating against patients for having ornot having advance directives.

Unfortunately, the relevant federal provisionsare embedded in complex laws and regula-tions spanning hundreds of pages. For guid-ance on federal requirements, the followingwebsites are recommended:• Department of Health and Human

Services www.hhs.gov• Centers for Medicare and Medicaid

Services www.cms.hhs.gov

• The Joint Commission on Accredita-tion of Health Care Organizationswww.jointcommission.org

Attorney General Opinions

Attorney General Opinions can be accessedat www.oscn.net.

Oklahoma Attorney General Opinion2006 OK AG 7This opinion addresses the effectiveness ofthe Five Wishes® advance directive formunder Oklahoma law. The opinion states thatthe Five Wishes® form is sufficient to give anattending physician knowledge that the pa-tient authorized the withholding or withdrawalof ANH. It also determined that Oklahoma’sformer law was unconstitutional and led to arevision of the Advance Directive statute,expanding the circumstances under whichpatients could refuse ANH.

Oklahoma Attorney General Opinion2006 OK AG 32In 2006, the Oklahoma Legislature amendedthe advance directive statute. This opinionheld that advance directives executed prior toMay 2006 were still valid and enforceable.

Oklahoma Attorney General Opinion2006 OK AG 34This opinion deals with the issue of whether adurable power of attorney can be used toappoint someone to make life-sustainingtreatment decisions. The opinion states thatto do so, the durable power of attorney mustcomply with the requirements of an advancedirective form and specifically authorize theattorney-in-fact to withhold or withdrawANH.

36


Case Law

Cruzan v. Director, Mo. Dep’t of Health,497 U.S. 261 (1990)Nancy Beth Cruzan was a young womanwho, after a severe car accident, was in apersistent vegetative state. The state courtrefused her parents’ request that the feedingtube be removed. The U.S. Supreme Courtheld that Cruzan had a constitutional right torefuse unwanted treatment, including life-sustaining treatment, but that states canrequire such wishes be proven by clear andconvincing evidence.

Washington v. Glucksberg, 521 U.S. 702(1997); Vacco v. Quill, 521 U.S. 793(1997)In both of these cases, the U.S. SupremeCourt made a distinction between refusingmedical treatment and physician-assistedsuicide. The constitutional right to refusetreatment is based on the right to maintainbodily integrity. However, the constitutiondoes not guarantee the right to commit sui-cide or hasten death.

OKLAHOMA ADVANCE DIRECTIVE FOR HEALTH CARE

If I am incapable of making an informed decision regarding my health care, I direct my health careproviders to follow my instructions below.

I. Living WillIf my attending physician and another physician determine that I am no longer able to make decisionsregarding my health care treatment, I direct my attending physician and other health care providers,pursuant to the Oklahoma Advance Directive Act, to follow my instructions as set forth below:

(1) If I have a terminal condition, that is, an incurable and irreversible condition that even with theadministration of life-sustaining treatment will, in the opinion of the attending physician and anotherphysician, result in death within six (6) months:

(Initial only one option)

_____ I direct that my life not be extended by life-sustaining treatment, except that if I am unable to takefood and water by mouth, I wish to receive artificially administered nutrition and hydration.

_____ I direct that my life not be extended by life-sustaining treatment, including artificially administerednutrition and hydration.

_____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by mouth,I wish to receive artificially administered nutrition and hydration.

(Initial only if applicable)

_____ See my more specific instructions in paragraph (4) below.

(2) If I am persistently unconscious, that is, I have an irreversible condition, as determined by the attendingphysician and another physician, in which thought and awareness of self and environment are absent:



_____ I direct that my life not be extended by life-sustaining treatment, including artificially administerednutrition and hydration.

_____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water by mouth,I wish to receive artificially administered nutrition and hydration.



(Page 1 of 4)

(3) If I have an end-stage condition, that is, a condition caused by injury, disease, or illness, which resultsin severe and permanent deterioration indicated by incompetency and complete physical dependency forwhich treatment of the irreversible condition would be medically ineffective:



_____ I direct that my life not be extended by life-sustaining treatment, including artificiallyadministered nutrition and hydration.

_____ I direct that I be given life-sustaining treatment and, if I am unable to take food and water bymouth, I wish to receive artificially administered nutrition and hydration.



(4) OTHER. Here you may:

(a) describe other conditions in which you would want life-sustaining treatment or artificiallyadministered nutrition and hydration provided, withheld, or withdrawn,

(b) give more specific instructions about your wishes concerning life-sustaining treatment or artificiallyadministered nutrition and hydration if you have a terminal condition, are persistently unconscious, orhave an end-stage condition, or

(c) do both of these:

_______Initial

(Page 2 of 4)

II. My Appointment of My Health Care ProxyIf my attending physician and another physician determine that I am no longer able to make decisionsregarding my medical treatment, I direct my attending physician and other health care providers pursuantto the Oklahoma Advance Directive Act to follow the instructions of ____________________________,whom I appoint as my health care proxy. If my health care proxy is unable or unwilling to serve, Iappoint______________________________ as my alternate health care proxy with the same authority.My health care proxy is authorized to make whatever health care treatment decisions I could make if Iwere able, except that decisions regarding life-sustaining treatment and artificially administered nutritionand hydration can be made by my health care proxy or alternate health care proxy only as I have indicatedin the foregoing sections.

If I fail to designate a health care proxy in this section, I am deliberately declining to designate a healthcare proxy.

III. Anatomical GiftsPursuant to the provisions of the Uniform Anatomical Gift Act, I direct that at the time of my death myentire body or designated body organs or body parts be donated for purposes of:

(Initial all that apply)

_____ transplantation therapy

_____ advancement of medical science, research, or education

_____ advancement of dental science, research, or education

Death means either irreversible cessation of circulatory and respiratory functions or irreversiblecessation of all functions of the entire brain, including the brain stem. If I initial the “yes” line below, Ispecifically donate:

_____ My entire body

or

_____ The following body organs or parts:

_____ lungs

_____ pancreas

_____ kidneys

_____ skin

_____ blood/fluids

_____ arteries

_____ liver

_____ heart

_____ brain

_____ bones/marrow

_____ tissue

_____ eyes/cornea/lens

(Page 3 of 4)

IV. General Provisionsa. I understand that I must be eighteen (18) years of age or older to execute this form.b. I understand that my witnesses must be eighteen (18) years of age or older and shall not be related to me and shallnot inherit from me.c. I understand that if I have been diagnosed as pregnant and that diagnosis is known to my attending physician, I will beprovided with life-sustaining treatment and artificially administered hydration and nutrition unless I have, in my ownwords, specifically authorized that during a course of pregnancy, life-sustaining treatment and/or artificially administeredhydration and/or nutrition shall be withheld or withdrawn.d. In the absence of my ability to give directions regarding the use of life-sustaining procedures, it is my intention that thisadvance directive shall be honored by my family and physicians as the final expression of my legal right to choose orrefuse medical or surgical treatment including, but not limited to, the administration of life-sustaining procedures, and Iaccept the consequences of such choice or refusal.e. This advance directive shall be in effect until it is revoked.f. I understand that I may revoke this advance directive at any time.g. I understand and agree that if I have any prior directives, and if I sign this advance directive, my prior directives arerevoked.h. I understand the full importance of this advance directive and I am emotionally and mentally competent to make thisadvance directive.i. I understand that my physician(s) shall make all decisions based upon his or her best judgment applying with ordinarycare and diligence the knowledge and skill that is possessed and used by members of the physician’s profession in goodstanding engaged in the same field of practice at that time, measured by national standards.

Signed this ___ day of ________________, 20 ___.

_____________________________________________Signature

_____________________________________________City of

_____________________________________________County, Oklahoma

_____________________________________________Date of birth (Optional for identification purposes)

This advance directive was signed in my presence.

_______________________________________Signature of Witness

____________________________________, OKResidence

(Page 4 of 4)

_______________________________________Signature of Witness

____________________________________, OKResidence

OKLAHOMA DO-NOT-RESUSCITATE (DNR) CONSENT FORM

I, ____________________________________, request limited health care as described in this document. If myheart stops beating or if I stop breathing, no medical procedure to restore breathing or heart function will beinstituted by any health care provider including, but not limited to, emergency medical services (EMS) personnel.

I understand that this decision will not prevent me from receiving other health care such as the Heimlich maneuveror oxygen and other comfort care measures.

I understand that I amy revoke this consent at any time in one of teh following ways:

1. If I am under the care of a health care agency, by making an oral, written, or other act of communicationto a physician or other health care provider of a health care agency;

2. If I am not under the care of a health care agency, by destroying my do-not-resuscitate form, removing alldo-not-resuscitate identification from my person, and notifying my attending physician of the revocation;

3. If I am incapacitated and under the care of a health care agency, my representative may revoke the do-not-resuscitate consent by written notification of a physician or other health care provider of the healthcare agency or by oral notification of my attending physician; or

4. If I am incapacitated and not under the care of a health care agency, my representative may revoke thedo-not-resuscitate consent by destroying the do-not-resuscitate form, removing all do-not-resuscitateidentification from my person, and notifying my attending physician of the revocation.

I give permission for this information to be given to EMS personnel, doctors, nurses, and other health care pro-viders. I hereby state that I am making an informed decision and agree to a do-not-resuscitate order.

______________________________________ or ______________________________________Signature of Person Signature of Representative

(Limited to an attorney-in-fact for health care deci-sions acting under the Durable Power of AttorneyAct, a health care proxy acting under the OklahomaRights of the Terminally Ill or Persistently Uncon-scious Act or a guardian of the person appointedunder the Oklahoma Guardianship and Conservator-ship Act.)

______________________________________Date

______________________________________ ______________________________________Signature of Witness Address

______________________________________ ______________________________________Signature of Witness Address

(Page 1 of 2)

This DNR consent form was signed in my presence.

CERTIFICATION OF PHYSICIAN

This form is to be used by an attending physician only to certify that an incapacitated person without a representa-tive would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac orrespiratory arrest. An attending physician of an incapacitated person without a representative must know by clearand convincing evidence that the incapacitated person, when competent, decided on the basis of informationsufficient to constitute informed consent that such person would not have consented to the administration ofcardiopulmonary resuscitation in the event of cardiac or respiratory arrest. Clear and convincing evidence for thispurpose shall include oral, written, or other acts of communication between the patient, when competent, andfamily members, health care providers, or others close to the patient with knowledge of the patient’s desires.

I hereby certify, based on clear and convincing evidence presented to me, that I believe

______________________________________ Name of Incapacitated Patient

would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac or respi-ratory arrest. Therefore, in the event of cardiac or respiratory arrest, no chest compressions, artificial ventilation,intubation, defibrillation, or emergency cardiac medications are to be initiated.

______________________________________ ______________________________________Physician’s Signature Physician’s Name (PRINT)

____________________________________________________________________________________Physician’s Address/Phone

_______________________________________Date

(Page 2 of 2)

Publications may be downloaded from www.OklahomaSeniorLaw.org or ordered from:Senior Law Resource Center

P.O. Box 1408Oklahoma City, OK 73106

(405) 528-0858FAX (405) 601-2134

[email protected]

The Senior Law Resource Center offers information about a variety of legal issues on our website:www.OklahomaSeniorLaw.org.

.

SENIOR LAW

RESOURCE CENTER

WWW.OKLAHOMASENIORLAW.ORG

Other Publications Available from the Senior Law Resource Center

Your Right To Decide: Oklahoma’s Advance Directive & Other Health Care Planning Tools

Oklahoma Grandparents’ Legal Guide

Funding for the publication of this guide was provided by the Hospice Foundation ofOklahoma Affiliated Fund of the Oklahoma City Community Foundation.