The purpose of this subchapter is to affirm the right of all competent adults to control decisions relating to their own health care and to have their rights and intentions in health care matters respected and implemented by others if they become incapable of making or communicating decisions for themselves.
§ 21–2202. Definitions.
For the purposes of this subchapter, the term:
(1) “Attorney in fact” means the person who receives the power of attorney for health-care decisions pursuant to the provisions of this subchapter.
(1A) “Close friend” means any adult who has exhibited significant care and concern for the patient, and has maintained regular contact with the patient so as to be familiar with his or her activities, health, and religious and moral beliefs.
(2) “District” means the District of Columbia.
(2A) “Domestic partner” means an adult person living with, but not married to, another adult person in a committed, intimate relationship. The term “domestic partner” shall include any adult who has registered as a domestic partner under the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701 et seq.), as well as any adult who has registered as a domestic partner in a substantially equivalent program administered by another jurisdiction.
(2B) “Domestic partnership” means 2 adult persons living together, but not married, in a committed, intimate relationship. The term “domestic partnership” shall include any relationship registered under § 32-701(4), as well as any relationship in another jurisdiction that includes a substantially equivalent registration requirement, including those relationships recognized under § 32-702(i).
(3) “Durable power of attorney for health care” means a legally enforceable document that:
(A) Is executed in the District in a manner consistent with this subchapter or validly executed in another jurisdiction pursuant to similar provisions of the law of that jurisdiction; and
(B) Creates a power of attorney for health-care decisions, which is effective upon, and only during incapacitation and is unaffected by the subsequent disability or incapacity of the principal as defined in this subchapter.
(4) “Health-care provider” means any person or organizational entity, including health care facilities as defined in § 44-501, licensed or otherwise authorized to provide health-care services in the District.
(5) “Incapacitated individual” means an adult individual who lacks sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner.
(5A) “Member of a religious order or diocesan priest” means an unmarried adult who, by vow or other bond of commitment, voluntarily undertakes a style of living under the rule and direction of a religious order or community that has been established for religious purposes and has been recognized and approved as a religious order or community by a church.
(6) “Principal” means a person who is competent to make health-care decisions for his or her own benefit or on his or her own account.
(6A) “Qualified psychologist” means a person who is licensed pursuant to § 3-1205.01 and has:
(A) One year of formal training within a hospital setting; or
(B) Two years of supervised clinical experience in an organized health-care setting, one year of which must be post-doctoral.
(7) “Religious superior” means a bishop or a member of a religious order who, under the approved constitution, laws, statutes, bylaws, or rules of the religious order or community, exercises authority over the particular community or unit of the religious order to which the member of the religious order or community belongs.
§ 21–2203. Presumption of capacity.
An individual shall be presumed capable of making health-care decisions unless certified otherwise under § 21-2204. Mental incapacity to make a health-care decision shall not be inferred from the fact that an individual:
(1) Has been voluntarily or involuntarily hospitalized for mental illness pursuant to § 21-501 et seq.;
(2) Has a diagnosis of an intellectual disability or has been determined by a court to be incompetent to refuse commitment under § 7-1301.01 et seq.; or
(3) Has a conservator or guardian appointed pursuant to § 21-1501 et seq. [repealed] or § 21-2001 et seq.
§ 21–2204. Certification of incapacity.
(a) Mental incapacity to make a health-care decision shall be certified by 2 professionals who are licensed to practice in the District and qualified to make a determination of mental incapacity. One of the 2 certifying professionals shall be a physician and one shall be a qualified psychologist or psychiatrist. At least 1 of the 2 certifying professionals shall examine the individual in question within 1 day preceding certification. Both certifying professionals shall give an opinion regarding the cause and nature of the mental incapacity as well as its extent and probable duration.
(b) All professional findings and opinions forming the basis of certification under subsection (a) of this section shall be expressed in writing, included in the patient-care records of the individual, and provide clear evidence that the person is incapable of understanding the health-care choice, making a decision concerning the particular treatment or services in question, or communicating a decision even if capable of making it.
(c) Certification of incapacity under this section shall be limited in its effect to the capacity to make health-care decisions and shall not be construed as a finding of incompetency for any other purpose.
§ 21–2205. Durable power of attorney for health care.
(a) A competent adult may designate, in writing, an individual who shall be empowered to make health-care decisions on behalf of the competent adult, if the competent adult becomes incapable, by reason of mental disability, of making or communicating a choice regarding a particular health-care decision.
(b) A durable power of attorney for health care shall include language which clearly communicates that the principal intends the attorney in fact to have the authority to make health-care decisions on behalf of the principal and shall include language identical or substantially similar to the following:
(1) “This power of attorney shall not be affected by the subsequent incapacity of the principal.” ; or
(2) “This power of attorney becomes effective upon the incapacity of the principal.”
(c) A durable power of attorney for health care shall be dated and signed by the principal and 2 adult witnesses who affirm that the principal was of sound mind and free from duress at the time of signing. The 2 adult witnesses shall not include the principal, the health-care provider of the principal or an employee of the health-care provider of the principal.
(d) Of the 2 adult witnesses referred to in subsection (c) of this section, at least 1 shall not be related to the principal by blood, marriage or adoption and shall not be entitled to any part of the estate of the principal by a current will or operation of law.
(e) Any durable power of attorney for health care executed prior to March 16, 1989, and specifically written to include health-care decision making after incompetency shall be effective, if the execution of the prior document meets the requirements of this subchapter.
§ 21–2206. Rights and duties of attorney in fact.
(a) Subject to any express limitations in the durable power of attorney for health care, an attorney in fact shall have all the rights, powers and authority related to health-care decisions that the principal would have under District and federal law. This authority shall include, at a minimum:
(1) The authority to grant, refuse or withdraw consent to the provision of any health-care service, treatment, or procedure;
(2) The right to review the health care records of the principal;
(3) The right to be provided with all information necessary to make informed health-care decisions;
(4) The authority to select and discharge health-care professionals; and
(5) The authority to make decisions regarding admission to or discharge from health-care facilities and to take any lawful actions that may be necessary to carry out these decisions.
(b)(1) Except as provided in paragraph (2) of this subsection and unless a durable power of attorney for health care provides otherwise, the designated attorney in fact, if known to a health-care provider to be available and willing to make a particular health-care decision, shall have priority over any other person to act for the principal in all matters regarding health care.
(2) A designated attorney in fact shall not have the authority to make a particular health-care decision, if the principal is able to give or withhold informed consent with respect to that decision.
(c) In exercising authority under a durable power of attorney for health care, the attorney in fact shall have a duty to act in accordance with:
(1) The wishes of the principal as expressed in the durable power of attorney for health care; or
(2) The good faith belief of the attorney in fact as to the best interests of the principal, if the wishes of the principal are unknown and cannot be ascertained.
(d) Nothing in this subchapter shall affect any right that an attorney in fact may have, independent of the designation in a durable power of attorney for health care, to make or otherwise participate in health-care decisions on behalf of the principal.
§ 21–2207. Forms for creating a durable power of attorney for health care.
Any written form meeting the requirements of § 21-2205 may be used to create a durable power of attorney for health care. The following is offered as a sample form only and its inclusion in this section shall not be construed to preclude the use of alternative language:
INFORMATION ABOUT THIS DOCUMENT
“THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, IT IS VITAL FOR YOU TO KNOW AND UNDERSTAND THESE FACTS:
“THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR ATTORNEY IN FACT THE POWER TO MAKE HEALTH-CARE DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISIONS FOR YOURSELF.
“AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH-CARE DECISIONS FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO. IN ADDITION, AFTER YOU HAVE SIGNED THIS DOCUMENT, NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION.
“YOU MAY STATE IN THIS DOCUMENT ANY TYPE OF TREATMENT THAT YOU DO NOT DESIRE AND ANY THAT YOU WANT TO MAKE SURE YOU RECEIVE.
“YOU HAVE THE RIGHT TO TAKE AWAY THE AUTHORITY OF YOUR ATTORNEY IN FACT, UNLESS YOU HAVE BEEN ADJUDICATED INCOMPETENT, BY NOTIFYING YOUR ATTORNEY IN FACT OR HEALTH-CARE PROVIDER EITHER ORALLY OR IN WRITING. SHOULD YOU REVOKE THE AUTHORITY OF YOUR ATTORNEY IN FACT, IT IS ADVISABLE TO REVOKE IN WRITING AND TO PLACE COPIES OF THE REVOCATION WHEREVER THIS DOCUMENT IS LOCATED.
“IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL WORKER, LAWYER, OR OTHER PERSON TO EXPLAIN IT TO YOU.
* * * * *
“YOU SHOULD KEEP A COPY OF THIS DOCUMENT AFTER YOU HAVE SIGNED IT. GIVE A COPY TO THE PERSON YOU NAME AS YOUR ATTORNEY IN FACT. IF YOU ARE IN A HEALTH-CARE FACILITY, A COPY OF THIS DOCUMENT SHOULD BE INCLUDED IN YOUR MEDICAL RECORD.
POWER OF ATTORNEY FOR HEALTH CARE
“I, _________________________, hereby appoint:
_______________
name home address
_______________
home telephone number
_______________
work telephone number
as my attorney in fact to make health-care decisions for me if I become unable to make my own health-care decisions. This gives my attorney in fact the power to grant, refuse, or withdraw consent on my behalf for any health-care service, treatment or procedure. My attorney in fact also has the authority to talk to health-care personnel, get information and sign forms necessary to carry out these decisions.
“If the person named as my attorney in fact is not available or is unable to act as my attorney in fact, I appoint the following person to serve in the order listed below:
1. _______________
name home address
_______________
home telephone number
_______________
work telephone number
2. _______________
name home address
_______________
home telephone number
_______________
work telephone number
“With this document, I intend to create a power of attorney for health care, which shall take effect if I become incapable of making my own health-care decisions and shall continue during that incapacity.
“My attorney in fact shall make health-care decisions as I direct below or as I make known to my attorney in fact in some other way.
“(a) STATEMENT OF DIRECTIVES CONCERNING LIFE-PROLONGING CARE, TREATMENT, SERVICES, AND PROCEDURES:
“(b) SPECIAL PROVISIONS AND LIMITATIONS:
“BY MY SIGNATURE I INDICATE THAT I UNDERSTAND THE PURPOSE AND EFFECT OF THIS DOCUMENT.
“I sign my name to this form on
(date)
at:
(address).
(Signature)
WITNESSES
“I declare that the person who signed or acknowledged this document is personally known to me, that the person signed or acknowledged this durable power of attorney for health care in my presence, and that the person appears to be of sound mind and under no duress, fraud, or undue influence. I am not the person appointed as the attorney in fact by this document, nor am I the health-care provider of the principal or an employee of the health-care provider of the principal.
First Witness
Signature:
Home Address:
Print Name:
Date:
Second Witness
Signature:
Home Address:
Print Name:
Date:
(AT LEAST 1 OF THE WITNESSES LISTED ABOVE SHALL ALSO SIGN THE FOLLOWING DECLARATION.)
“I further declare that I am not related to the principal by blood, marriage or adoption, and, to the best of my knowledge, I am not entitled to any part of the estate of the principal under a currently existing will or by operation of law.
Signature: ________________
Signature: ________________.”
§ 21–2208. Revocation.
(a) At any time that the principal has the capacity to create a durable power of attorney for health care, the principal may:
(1) Revoke the appointment of the attorney in fact under a durable power of attorney for health care by notifying the attorney in fact orally or in writing; or
(2) Revoke the authority to make health-care decisions granted to the attorney in fact under a durable power of attorney for health care by notifying the health-care provider orally or in writing.
(b) If a health-care provider is notified of a revocation pursuant to subsection (a)(2) of this section, the health-care provider shall document this fact in the patient-care records of the principal and make a reasonable effort to notify the attorney in fact of the revocation.
(c) There shall be a rebuttable presumption, affecting the burden of proof, that a principal has the capacity to revoke a durable power of attorney for health care.
(d) Unless it expressly provides otherwise, a valid durable power of attorney for health care revokes any prior durable power of attorney for health-care decisions only.
(e) Unless a durable power of attorney for health care expressly provides otherwise, and after its execution the marriage or domestic partnership of the principal is dissolved, annulled, or terminated in accordance with § 32-702(d), or § 16-904(e), the dissolution, annulment, or termination shall automatically revoke a designation of the former spouse or domestic partner as an attorney in fact to make health-care decisions for the principal. If a designation is revoked solely on account of this subsection, it shall be revived by the remarriage of the principal to the former spouse, or the reentry of the domestic partnership of the principal to the domestic partner, but may be subsequently revoked by an act of the principal.
§ 21–2209. Health-care provider limitation.
(a) No health-care provider may require an individual to execute a durable power of attorney for health care as a condition for the provision of health-care services or admission to a health-care facility, as defined in § 44-501.
(b) After an individual has spent at least 48 hours in a health care facility, a health care provider may request the individual to execute a durable power of attorney for health care subject to the limitations set forth in this subchapter. The health care provider may not be named as the attorney in fact.
§ 21–2210. Substituted consent.
(a) In the absence of a durable power of attorney for health care and provided that the incapacity of the principal has been certified in accordance with § 21-2204, the following individuals, in the order of priority set forth below, shall be authorized to grant, refuse or withdraw consent on behalf of the patient with respect to the provision of any health-care service, treatment, or procedure:
(1) A court-appointed guardian or conservator of the patient, if the consent is within the scope of the guardianship or conservatorship;
(1A) A court-appointed intellectual disability advocate of the patient, if the ability to grant, refuse, or withdraw consent is within the scope of the advocate’s appointment under section 7-1304.13.
(2) The spouse or domestic partner of the patient;
(3) An adult child of the patient;
(4) A parent of the patient;
(5) An adult sibling of the patient;
(5A) A religious superior of the patient, if the patient is a member of a religious order or a diocesan priest;
(5B) A close friend of the patient; or
(6) The nearest living relative of the patient.
(b) A decision to grant, refuse or withdraw consent made pursuant to subsection (a) of this section shall be based on the known wishes of the patient or, if the wishes of the patient are unknown and cannot be ascertained, on a good faith belief as to the best interests of the patient.
(c) There shall be at least 1 witness present whenever a person specified in subsection (a)(2) through (6) of this section grants, refuses or withdraws consent on behalf of the patient.
(d) If no individual in a prior class is reasonably available, mentally capable and willing to act, responsibility for decisionmaking shall rest with the next reasonably available, mentally capable, and willing person on the priority list.
(e) Any person listed in subsection (a) of this section shall have legal standing to challenge in the Superior Court of the District of Columbia any decision made by a person of higher priority as listed within that subsection.
(f) The order of priority established in subsection (a) of this section creates a presumption that may be rebutted if a person of lower priority is found to have better knowledge of the wishes of the patient, or, if the wishes of the patient are unknown and cannot be ascertained, is better able to demonstrate a good-faith belief as to the interests of the patient.
(g) An individual identified in subsection (a)(5B) of this section shall not be authorized to grant, refuse, or withdraw consent on behalf of the patient with respect to a decision regarding a health-care service, treatment, or procedure if the individual is:
(1) A health-care provider who is treating or providing services to the incapacitated patient at the time of the health-care decision; or
(2) An owner, operator, administrator, or employee of, or a person with decision-making authority for, a health-care provider treating or providing services to the incapacitated patient at the time of the health-care decision.
(h) If no person listed in subsection (a) of this section is reasonably available, mentally capable, and willing to act, the health-care provider, or the District of Columbia, for those persons committed to receive habilitation or other services pursuant to Chapter 13 of Title 7, or any interested person may petition the Superior Court of the District of Columbia for appointment of a guardian pursuant to section 21-2044 or section 21-2046.
(i) The health-care provider who is treating or providing services to the incapacitated patient at the time of the health-care decision shall accept the decision of the individual authorized under this section to grant, refuse, or withdraw consent on behalf of the patient as the decision of the principal.
§ 21–2211. Limitations.
No person authorized to act pursuant to § 21-2210 shall have the power:
(1) To consent to an abortion, sterilization or psycho-surgery, unless authorized by a court; or
(2) To consent to convulsive therapy or behavior modification programs involving aversive stimuli, unless authorized by a court.
§ 21–2212. Effect of subchapter.
(a) Nothing in this subchapter shall be construed to condone, authorize, or approve mercy-killing or to permit any affirmative or deliberate act to end a human life other than to permit the natural dying process.
(b) Nothing in this subchapter shall be construed to conflict with or supersede, the Emergency Medical Treatment and Labor Act, approved April 17, 1986 (100 Stat. 164; 42 U.S.C. § 1395dd).
(c) Emergency health care may be provided without consent to a patient who is certified incapacitated under § 21-2204, if no authorized person is reasonably available or if, in the reasonable medical judgment of the attending physician, attempting to locate an authorized person would cause:
(1) A substantial risk of death;
(2) The health of the incapacitated individual to be placed in serious jeopardy;
(3) Serious impairment to the incapacitated individual’s bodily functions; or
(4) Serious dysfunction of any bodily organ or part of the incapacitated individual.
§ 21–2213. Construction.
This subchapter shall be liberally construed and applied to promote its underlying purposes and policies.
