Senate Bill No.1, as passed by the 119th Ohio General Assembly  and signed by the governor, provides for two forms of advance directives and also provides a framework for making health care decisions for those people who have not executed an advance directive. Senate Bill No.1 modifies the Durable Power of Attorney for Health Care for Ohio, which has existed since Septmeber, 1989.  It is important to note that Senate Bill No.1 does not affect the validity of any Power of Attorney for Health Care which was executed under the prior law.  The new act does however, broaden the scope of the Durable Power of Attorney for Health Care by clarifying the definition of "terminal conition" and by adding the definition of a "permanently unconscious state".  If a person falls within either of the above defined conditions, then Senate Bill No. 1 provides that nutrition and hydration may be withdrawn if the Durable of Attorney for Health Care provides for such a withdrawal. In order to provide for such a withdrawal, the Durable Power of Attorney for Health Care must provide IN CAPITAL LETTERS  a statement that is separately initialed providing that nutrition and hydration may be withdrawn.

Senate Bill No. 1 also provides for health care declarations, more commonly known as Living Wills. Unlike the Durable Power of Attorney for Health Care, in which a person appoints a surrogate to make health care decisons, the declaration is a written statement executed by a person while they have the capacity to make the health care decisons which sets forth that person's predisposition as to health care matters.  Similar to the Durable Power of Attorney for Health Care, the declaration may provide for the withdrawal of nutrition and hydration if the statutory guidelines are met.

Both the Durable Power of Attorney for Health Care and the Declaration or Living Will now have an appeal procedure that may be utilized by a family member who does not agree with the proposed treatment or withdrawal of treatment. The statute provides that the Probate Court will have jurisdiction over only certain issues relating to the decision. 

Finally, Senate Bill No. 1 provides a framework around which to make health care decisions if the patient has not executed any form of advance directive.  This alternative should only be utilized as a last resort since the structure of the statute can provide for significant delays and additional costs. 

It is important to remember that the state laws governing the power of attorney vary significantly from state to state. For instance, don't automatically assume you can use a power of attorney for health care decisions. Check with your legal advisor before you act on this to be sure your decision fits your state laws. It is important to remember that a Durable Power of Attorney is never a substitute for a will.

Questions and Answers:

What is a Durable Power of Attorney For Health Care?

A Durable Power of Attorney for Health Care is a legal document in which you are able to name a person (your attorney-in-fact) to make medical decisions for you if you are unable to make them for yourself. The attorney-in-fact has the power to authorize and refuse medical treatment for you. This power is only effective if you are not competent to make health care decisions for yourself.

Who Can Serve As My Attorney-In-Fact?

Any adult can serve as your attorney-in-fact under a Durable Power of Attorney for Health Care except (1) your physician,  (2) an employee or agent of your physican, or (3) an employee or agent of any hospital or other health care facility in which you are being treated.

What Decisions May My Attorney-In-Fact Make For Me? 

With a few exceptions, your attorney-in-fact can make any decision concerning your health care which you could make if you were competent.  Your attorney-in-fact, however, cannot refuse health care necessary to maintain your life unless you are in a terminal condition.  In addition, he or she cannot refuse treatment for you which is considered to be comfort care (such as pain medication). On the other hand, your attorney-in-fact does have the authority in certain circumstances to withhold or withdraw consent for medically administered nutrition or hydration (fluids). In addition, your attorney-in-fact cannot permit the withdrawal or refusal of health care, which would terminate a pregnancy, unless the pregnancy or health care would pose a substantial risk to your life, or unless two physicians determine that the child would not be born alive. Your atttorney-in-fact cannot permit the withdrawal of any health care to which you previously consented unless your condition has changed significantly or unless the health care is no longer effective. Most importantly, your attorney-in-fact cannot make any decision which is contrary to your expressed wishes, whether listed in your Durable Power of Attorney For Health Care or expressed to your attorney-in-fact in any other manner.

Can My Atttorney-In-Fact Review My Medical Records?

Your attorney-in-fact will have the same right as you to receive information regarding your medical care unless you provide otherwise in your Durable Power of Attorney for Health Care.

How Do I Create A Durable Power of Attorney For Health Care? 

You can either contact your lawyer or use a pre-printed form, such as the one made available to doctors by the Ohio State Medical Association.  You must either acknowledge the Power of Attorney before a notary public or have your signature witnessed by two people.  The following people may NOT serve as witnesses: a person who is (1) related to you by blood, marriage, or adoption, (2) entitled to benefit in any way from your death, (3) named as your Attorney-In-Fact, (4)  a physician, or (5) an employee of a physician or of a health care facility.

What If I Change My Mind?  

You can revoke a Durable Power of Attorney For Health Care by (1) notifying your attorney in writting or orally, (2) notifying your physician, (3) destroying the document, or (4) executing a New Durable Power of Attorney For Health Care. In any event, unless you specify a shorter time period, your Durable Power of Attorney For Health Care will expire after seven years.  If, at the time it would otherwise expire, you are incompetent to make health care decision for yourself, the power of attorney will remain in effect until you regain competency.

Where Can I Obtain A Durable Power Of Attorney For Health Care Form?

Your physician can usually provide you with a pre-printed Durable Power of Attorney For Health Care form which satisfies the legal requirements.  A form has been provided for your physician as a public service of the Ohio State Medical Association. Any legal questions you may have about the execution of, operations of, or a Durable Power of Attorney For Health Care should be directed to your legal advisor.