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Louisiana Health Law / Louisiana Medical Consent Law / Louisiana Mandates - (Power of Attorney)

Louisiana Living Will Law

Title 40 Public Health and Safety Code

PART XXIV-A. DECLARATIONS CONCERNING LIFE-SUSTAINING PROCEDURES

§1299.58.1. Legislative purpose, findings and intent

A. Purpose and findings.

(1) The legislature finds that all persons have the fundamental right to control the decisions relating to their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances where such persons are diagnosed as having a terminal and irreversible condition.

(2) The legislature further finds that the artificial prolongation of life for a person diagnosed as having a terminal and irreversible condition may cause loss of individual and personal dignity and secure only a precarious and burdensome existence while providing nothing medically necessary or beneficial to the person.

(3) In order that the rights of such persons may be respected even after they are no longer able to participate actively in decisions concerning themselves, the legislature hereby declares that the laws of the state of Louisiana shall recognize:

(a) The right of such a person to make a declaration instructing his physician to withhold or withdraw life-sustaining procedures or designating another to make the treatment decision and make such a declaration for him, in the event he is diagnosed as having a terminal and irreversible condition; and

(b) The right of certain individuals to make a declaration pursuant to which life-sustaining procedures may be withheld or withdrawn from an adult patient who is comatose, incompetent, or otherwise physically or mentally incapable of communication, or from a minor, in the event such adult patient or minor is diagnosed and certified as having a terminal and irreversible condition.

(4) In furtherance of the rights of such persons, the legislature finds and declares that nothing in this Part shall be construed to be the exclusive means by which life-sustaining procedures may be withheld or withdrawn, nor shall this Part be construed to require the application of medically inappropriate treatment or life-sustaining procedures to any patient or to interfere with medical judgment with respect to the application of medical treatment or life-sustaining procedures.

B. Intent.

(1) The legislature intends that the provisions of this Part are permissive and voluntary. The legislature further intends that the making of a declaration pursuant to this Part merely illustrates a means of documenting a patient's decision relative to withholding or withdrawal of medical treatment or life-sustaining procedures.

(2) It is the intent of the legislature that nothing in this Part shall be construed to require the making of a declaration pursuant to this Part.

(3) It is the intent of the legislature that nothing in this Part shall be construed to be the exclusive means by which life-sustaining procedures may be withheld or withdrawn, nor shall this Part be construed to require the application of medically inappropriate treatment or life-sustaining procedures to any patient or to interfere with medical judgment with respect to the application of medical treatment or life-sustaining procedures.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985.

§1299.58.2. Definitions

As used in this Part, the following words shall have the meanings ascribed to them unless the context clearly states otherwise:

(1) "Attending physician" means the physician who has primary responsibility for the treatment and care of the patient.

(2) "Cardiopulmonary resuscitation" means those measures used to restore or support cardiac or respiratory function in the event of a cardiac or respiratory arrest.

(3) "Certified emergency medical technician" means a certified emergency medical technician as defined in R.S. 40:1231.

(4) "Certified first responder" means any person who has successfully completed a training course developed and promulgated by the United States Department of Transportation and adopted by the bureau of emergency medical services of the Department of Health and Hospitals and who is certified by the bureau.

(5) "Declaration" means a witnessed document, statement, or expression voluntarily made by the declarant, authorizing the withholding or withdrawal of life-sustaining procedures, in accordance with the requirements of this Part. A declaration may be made in writing, orally, or by other means of nonverbal communication.

(6) "Declarant" means a person who has executed a declaration as defined herein.

(7) "Do-not-resuscitate identification bracelet" means a standardized bracelet as described in R.S. 40:1299.58.3(D)(1)(b).

(8) "Health care provider" means any health maintenance organization, home health agency, hospice, hospital, or nursing facility.

(9) "Life-sustaining procedure" means any medical procedure or intervention which, within reasonable medical judgment, would serve only to prolong the dying process for a person diagnosed as having a terminal and irreversible condition, including such procedures as the invasive administration of nutrition and hydration and the administration of cardiopulmonary resuscitation. A "life-sustaining procedure" shall not include any measure deemed necessary to provide comfort care.

(10) "Minor" means a person under eighteen years of age.

(11) "Physician" means a physician or surgeon licensed by the Louisiana State Board of Medical Examiners or by the official licensing authority of another state.

(12) "Qualified patient" means a patient diagnosed and certified in writing as having a terminal and irreversible condition by two physicians who have personally examined the patient, one of whom shall be the attending physician.

(13) "Registry" means a registry for declarations established and maintained by the secretary of state pursuant to this Part.

(14) "Terminal and irreversible condition" means a continual profound comatose state with no reasonable chance of recovery or a condition caused by injury, disease, or illness which, within reasonable medical judgment, would produce death and for which the application of life-sustaining procedures would serve only to postpone the moment of death.

(15) "Witness" means a competent adult who is not related to the declarant or qualified patient, whichever is applicable, by blood or marriage and who would not be entitled to any portion of the estate of the person from whom life-sustaining procedures are to be withheld or withdrawn upon his decease.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985; Acts 1990, No. 522, §1; Acts 1990, No. 749, §1; Acts 1991, No. 194, §1; Acts 1991, No. 320, §1; Acts 1991, No. 321, §1, eff. Jan. 1, 1992; Acts 1999, No. 641, §1, eff. July 1, 1999.

§1299.58.3. Making of declaration; notification; illustrative form; registry; issuance of do-not-resuscitate identification bracelets

A.

(1) Any adult person may, at any time, make a written declaration directing the withholding or withdrawal of life-sustaining procedures in the event such person should have a terminal and irreversible condition.

(2) A written declaration shall be signed by the declarant in the presence of two witnesses.

(3) An oral or nonverbal declaration may be made by an adult in the presence of two witnesses by any nonwritten means of communication at any time subsequent to the diagnosis of a terminal and irreversible condition.

B.

(1) It shall be the responsibility of the declarant to notify his attending physician that a declaration has been made.

(2) In the event the declarant is comatose, incompetent, or otherwise mentally or physically incapable of communication, any other person may notify the physician of the existence of the declaration. In addition, the attending physician or health care facility may directly contact the registry to determine the existence of any such declaration.

(3) Any attending physician who is so notified, or who determines directly or is advised by the health care facility that a declaration is registered, shall promptly make the declaration or a copy of the declaration, if written, or a notation of the existence of a registered declaration, a part of the declarant's medical record.

(4) If the declaration is oral or nonverbal, the physician shall promptly make a recitation of the reasons the declarant could not make a written declaration and make the recitation a part of the patient's medical records.

C.

(1) The declaration may, but need not, be in the following illustrative form and may include other specific directions including but not limited to a designation of another person to make the treatment decision for the declarant should he be diagnosed as having a terminal and irreversible condition and be comatose, incompetent, or otherwise mentally or physically incapable of communications:

DECLARATION

Declaration made this _______________ day of __________ (month, year).

I, _______________________, being of sound mind, willfully and voluntarily make known my desire that my dying shall not be artificially prolonged under the circumstances set forth below and do hereby declare:

If at any time I should have an incurable injury, disease or illness, or be in a continual profound comatose state with no reasonable chance of recovery, certified to be a terminal and irreversible condition by two physicians who have personally examined me, one of whom shall be my attending physician, and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life-sustaining procedure would serve only to prolong artificially the dying process, I direct that such procedures be withheld or withdrawn and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care.

In the absence of my ability to give directions regarding the use of such life-sustaining procedures, it is my intention that this declaration shall be honored by my family and physician(s) as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from such refusal.

I understand the full import of this declaration and I am emotionally and mentally competent to make this declaration.

Signed ____________________

City, Parish and State of Residence ____________________

The declarant has been personally known to me and I believe him or her to be of sound mind.

Witness ____________________

Witness ____________________

(2) Should any of the other specific directions be held to be invalid, such invalidity shall not affect other directions of the declaration which can be given effect without the invalid direction, and to this end the directions in the declaration are severable.

(3) Any declaration executed prior to January 1, 1992, which does not contain directions regarding life sustaining procedures in the event that the declarant is in a continual profound comatose state shall not be invalid for that reason. Such declaration shall be applicable to any terminal and irreversible condition, as defined in this Part, unless it clearly provides to the contrary.

D.

(1)

(a) The secretary of state shall establish a declaration registry in which a person, or his attorney, if authorized by the person to do so, may register the original, multiple original, or a certified copy of the declaration.

(b) The secretary of state shall issue a do-not-resuscitate identification bracelet to qualified patients listed in the registry. The do-not-resuscitate identification bracelet must include the patient's name, date of birth, and the phrase "DO NOT RESUSCITATE".

(2) Any attending physician or health care facility may, orally or in writing, request the secretary of state to confirm immediately the existence of a declaration and to disclose the contents thereof for any patient believed to be a resident of Louisiana. A copy of the declaration or a facsimile thereof transmitted from the office of the secretary of state shall be deemed authentic. However, nothing herein requires a physician or health care facility to confirm the existence of such declaration or obtain a copy thereof prior to the withholding or withdrawal of medical treatment or life-sustaining procedures.

(3) The secretary of state may charge a fee of twenty dollars for registering a declaration and issuing a do-not-resuscitate identification bracelet and a fee of five dollars for filing a notice of revocation. No charge shall be made for the furnishing of information concerning the existence of a declaration, the disclosure of its contents, or the providing of a copy or facsimile thereof.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985; Acts 1991, No. 194, §1; Acts 1991, No. 321, §1, eff. Jan. 1, 1992; Acts 1999, No. 641, §1, eff. July 1, 1999.

§1299.58.4. Revocation of declaration

A. A declaration may be revoked at any time by the declarant without regard to his or her mental state or competency by any of the following methods:

(1) By being cancelled, defaced, obliterated, burned, torn, or otherwise destroyed by the declarant or by some person in the presence of and at the direction of the declarant.

(2)

(a) By a written revocation of the declarant expressing the intent to revoke, signed and dated by the declarant.

(b) The attending physician shall record in the patient's medical record the time and date when notification of the written revocation was received.

(3)

(a) By an oral or nonverbal expression by the declarant of the intent to revoke the declaration.

(b) Such revocation by any method enumerated in this Section shall become effective upon communication to the attending physician.

(c) The attending physician shall record in the patient's medical records the time and date when notification of the revocation was received.

B. A declaration registered with the secretary of state's office may be revoked by the filing of a written notice of revocation in that office. The secretary of state shall indicate on the declaration the date and time the notice of revocation was received in his office. Until the notation has been indicated on the declaration, any physician or health care facility acting in good faith may rely upon the validity of the declaration.

Acts 1991, No. 194, §1.

§1299.58.5. Procedure for making a declaration for a qualified patient who has not previously made a declaration

A.

(1) Nothing in this Part shall be construed in any manner to prevent the withholding or the withdrawal of life-sustaining procedures from a qualified patient with a terminal and irreversible condition who is comatose, incompetent, or otherwise physically or mentally incapable of communication and has not made a prior declaration in accordance with this Part.

(2) When a comatose or incompetent person or a person who is physically or mentally incapable of communication has been certified as a qualified patient and has not previously made a declaration, any of the following individuals in the following order of priority, if there is no individual in a prior class who is reasonably available, willing, and competent to act, may make a declaration on the qualified patient's behalf:

(a) Any person or persons previously designated by the patient, while an adult, by written instrument signed by the patient in the presence of at least two witnesses, to have the authority to make a declaration for the patient in the event of the patient's inability to do so. If the instrument so authorizes more than one person, it may include the order in which the persons designated shall have authority to make the declaration.

(b) The judicially appointed tutor or curator of the patient if one has been appointed. This Subparagraph shall not be construed to require such appointment in order that a declaration can be made under this Section.

(c) The patient's spouse not judicially separated.

(d) An adult child of the patient.

(e) The parents of the patient.

(f) The patient's sibling.

(g) The patient's other ascendants or descendants.

(3) If there is more than one person within the above named class in Subparagraphs (d) through (g), then the declaration shall be made by all of that class available for consultation upon good faith efforts to secure participation of all of that class.

B. In any case where the declaration is made by a person specified in Subparagraphs (A)(2)(b), (c), (d), (e), or (f), there shall be at least two witnesses present at the time the declaration is made.

C. The absence of a declaration by an adult patient shall not give rise to any presumption as to the intent to consent to or to refuse life-sustaining procedures.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985; Acts 1991, No. 323, §1.

§1299.58.6. Making a declaration for the benefit of a terminally ill minor

A. If a minor has been certified as a qualified patient, the following individuals may voluntarily make a declaration to document the decision relative to withholding or withdrawal of medical treatment or life-sustaining procedures on a minor's behalf:

(1) The spouse if he has reached the age of majority; or

(2) If there is no spouse, or if the spouse is not available, or is a minor, or is otherwise unable to act, then either the parent or guardian of the minor.

B. An individual named in Subsection A of this Section may not make a declaration:

(1) If he has actual notice of contrary indications by the minor who is terminally ill; or

(2) If, as a parent or guardian, he has actual notice of opposition by either another parent, or guardian, or a spouse who has attained the age of majority.

C. Nothing in this Section shall be construed to require the making of a declaration for a terminally ill minor. The legislature intends that the provisions of this Part are permissive and voluntary. The legislature further intends that the making of a declaration pursuant to this Part merely illustrates a means of documenting the decision relative to withholding or withdrawal of medical treatment or life-sustaining procedures on behalf of a minor.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985.

§1299.58.7. Physician, health care provider, certified emergency technician, and certified first responder responsibility

A. Any attending physician who has been notified of the existence of a declaration made under this Part or at the request of the proper person as provided in R.S. 40:1299.58.5 or R.S. 40:1299.58.6 upon diagnosis of a terminal and irreversible condition of the patient, or who on his own determines the existence of a declaration on file in the registry, shall take necessary steps to provide for written certification of the patient's terminal and irreversible condition, so that the patient may be deemed to be a qualified patient as defined in R.S. 40:1299.58.2.

B. Any attending physician who refuses to comply with the declaration of a qualified patient or declaration otherwise made pursuant to this Part shall make a reasonable effort to transfer the patient to another physician.

C. No provision of this Part imposes a duty upon the physician or health care facility to make a search of the registry for the existence of a declaration.

D. If the policies of a health care provider preclude compliance with the declaration of a qualified patient under this Part or preclude compliance with the provisions pertaining to a representative acting on behalf of a qualified patient, then the provider shall take all reasonable steps to transfer the patient to a provider with which the provisions of this Part can be effectuated.

E. Certified emergency medical technicians and certified first responders shall make a reasonable effort to detect the presence of a do-not-resuscitate identification bracelet on the patient.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985; Acts 1991, No. 194, §1; Acts 1991, No. 320, §1; Acts 1999, No. 641, §1, eff. July 1, 1999.

§1299.58.8. Immunity from liability

A

(1) Any health care facility, physician, or other person acting under the direction of a physician shall not be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the withholding or the withdrawal of life-sustaining procedures from a qualified patient who has made a declaration or is wearing a do-not-resuscitate identification bracelet in accordance with the provisions of this Part.

(2) Any person, health care facility, physician, or other person acting under the direction of a physician who authorizes the withholding or withdrawal of life-sustaining procedures in accordance with a qualified patient's declaration or do-not-resuscitate identification bracelet, or as otherwise provided in this Part shall not be subject to criminal prosecution or civil liability for such action.

B. In instances where a patient diagnosed as having a terminal and irreversible condition or his representative utilized means other than those in accordance with the provisions of this Part to document or manifest the patient's intention and desire that medical treatment or life-sustaining procedures be withheld or withdrawn, any health care facility, physician, or other person acting under the direction of a physician shall not be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the withholding or withdrawal of life-sustaining procedures when the health care facility, physician, or other person acting under the direction of a physician has acted in good faith reliance on the patient's or his representative's manifestations that medical treatment or life-sustaining procedures be withheld or withdrawn and the continued utilization of life-sustaining procedures would, within reasonable medical judgment, serve only to prolong the dying process.

C.

(1) Inasmuch as the provisions of this Part are declared by the legislature to provide an alternative nonexclusive means by which life-sustaining procedures may be withheld or withdrawn, the provisions of this Section shall apply to any case in which life-sustaining procedures are withheld or withdrawn unless it is shown by a preponderance of the evidence that the person authorizing or effectuating the withholding or withdrawal of life-sustaining procedures did not, in good faith, comply with the provisions of this Part or did not act in good faith compliance with the intention of the terminal and irreversible patient that medical treatment or life-sustaining procedures be withheld or withdrawn.

(2) A declaration made in accordance with this Part shall be presumed to have been made voluntarily.

D.

(1) A certified emergency medical technician or a certified first responder shall not be subject to criminal prosecution or civil liability for withholding life-sustaining procedures from a qualified patient who is wearing a do-not-resuscitate identification bracelet.

(2) A certified emergency medical technician or a certified first responder shall not be subject to criminal prosecution or civil liability for administering life-sustaining procedures to a qualified patient who is not wearing the do-not-resuscitate identification bracelet.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985; Acts 1999, No. 641, §1, eff. July 1, 1999.

§1299.58.9. Penalties

A. Any person who willfully conceals, cancels, defaces, obliterates, or damages the declaration of another, including the removal of a do-not-resuscitate identification bracelet, without such declarant's consent or who falsifies or forges a revocation or the declaration of another shall be civilly liable.

B. Any person who falsifies or forges the declaration of another or willfully conceals or withholds personal knowledge of a revocation of a declaration with the intent to cause the withholding or withdrawal of life-sustaining procedures contrary to the wishes of the declarant, and thereby because of such act directly causes life-sustaining procedures to be withheld or withdrawn and death thereby to be hastened may be subject to prosecution under Title 14 of the Louisiana Revised Statutes of 1950.

Acts 1984, No. 382, §1; Acts 1999, No. 641, §1, eff. July 1, 1999.

§1299.58.8. Immunity from liability

A.

(1) Any health care facility, physician, or other person acting under the direction of a physician shall not be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the withholding or the withdrawal of life-sustaining procedures from a qualified patient who has made a declaration or is wearing a do-not-resuscitate identification bracelet in accordance with the provisions of this Part.

(2) Any person, health care facility, physician, or other person acting under the direction of a physician who authorizes the withholding or withdrawal of life-sustaining procedures in accordance with a qualified patient's declaration or do-not-resuscitate identification bracelet, or as otherwise provided in this Part shall not be subject to criminal prosecution or civil liability for such action.

B. In instances where a patient diagnosed as having a terminal and irreversible condition or his representative utilized means other than those in accordance with the provisions of this Part to document or manifest the patient's intention and desire that medical treatment or life-sustaining procedures be withheld or withdrawn, any health care facility, physician, or other person acting under the direction of a physician shall not be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the withholding or withdrawal of life-sustaining procedures when the health care facility, physician, or other person acting under the direction of a physician has acted in good faith reliance on the patient's or his representative's manifestations that medical treatment or life-sustaining procedures be withheld or withdrawn and the continued utilization of life-sustaining procedures would, within reasonable medical judgment, serve only to prolong the dying process.

C.

(1) Inasmuch as the provisions of this Part are declared by the legislature to provide an alternative nonexclusive means by which life-sustaining procedures may be withheld or withdrawn, the provisions of this Section shall apply to any case in which life-sustaining procedures are withheld or withdrawn unless it is shown by a preponderance of the evidence that the person authorizing or effectuating the withholding or withdrawal of life-sustaining procedures did not, in good faith, comply with the provisions of this Part or did not act in good faith compliance with the intention of the terminal and irreversible patient that medical treatment or life-sustaining procedures be withheld or withdrawn.

(2) A declaration made in accordance with this Part shall be presumed to have been made voluntarily.

D.

(1) A certified emergency medical technician or a certified first responder shall not be subject to criminal prosecution or civil liability for withholding life-sustaining procedures from a qualified patient who is wearing a do-not-resuscitate identification bracelet.

(2) A certified emergency medical technician or a certified first responder shall not be subject to criminal prosecution or civil liability for administering life-sustaining procedures to a qualified patient who is not wearing the do-not-resuscitate identification bracelet.

Acts 1984, No. 382, §1; Acts 1985, No. 187, §1, eff. July 6, 1985; Acts 1999, No. 641, §1, eff. July 1, 1999.

§1299.58.9. Penalties

A. Any person who willfully conceals, cancels, defaces, obliterates, or damages the declaration of another, including the removal of a do-not-resuscitate identification bracelet, without such declarant's consent or who falsifies or forges a revocation or the declaration of another shall be civilly liable.

B. Any person who falsifies or forges the declaration of another or willfully conceals or withholds personal knowledge of a revocation of a declaration with the intent to cause the withholding or withdrawal of life-sustaining procedures contrary to the wishes of the declarant, and thereby because of such act directly causes life-sustaining procedures to be withheld or withdrawn and death thereby to be hastened may be subject to prosecution under Title 14 of the Louisiana Revised Statutes of 1950.

Acts 1984, No. 382, §1; Acts 1999, No. 641, §1, eff. July 1, 1999.

§1299.58.10. General application

A. Nothing in this Part shall be construed to condone, authorize, or approve mercy killing or euthanasia or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

B.

(1) The withholding or withdrawal of life-sustaining procedures from a qualified patient in accordance with the provisions of this Part shall not, for any purpose, constitute a suicide.

(2) Nor shall the making of a declaration pursuant to this Part affect the sale, procurement, or issuance of any life insurance policy, nor shall it be deemed to modify the terms of an existing policy.

(3) No policy shall be legally impaired or invalidated by the withholding or withdrawal of life-sustaining procedures from an insured, qualified patient, notwithstanding any term of the policy to the contrary.

(4) A person shall not be required to make a declaration as a condition for being insured or for receiving health care services.

(5) The removal of life support systems or the failure to administer cardio-pulmonary resuscitation under this Part shall not be deemed the cause of death for purposes of insurance coverage.

C. The provisions of this Part are cumulative with existing law pertaining to an individual's right to consent or refuse to consent to medical or surgical treatment.

D. A declaration properly executed in and under the laws of another state is deemed to be validly executed for purposes of this Part.

Acts 1984, No. 382, §1; Acts 1990, No. 749, §1; Acts 1999, No. 641, §1, eff. July 1, 1999.

 

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