Maine Revised Statutes Title 18-C Sec. 5-806 – Decisions by surrogate
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1. Decisions by surrogate. A surrogate may make a decision to withhold or withdraw life-sustaining treatment for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity, no agent or guardian has been appointed or the agent or guardian is not reasonably available and the patient is in a terminal condition or a persistent vegetative state as determined by the primary physician.
A surrogate also is authorized to make any other health care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian exists, except that a surrogate may not deny surgery, procedures or other interventions that are lifesaving and medically necessary.
A medically necessary procedure is one providing the most patient-appropriate intervention or procedure that can be safely and effectively given.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
Terms Used In Maine Revised Statutes Title 18-C Sec. 5-806
- Adult: means an individual at least 18 years of age or an emancipated individual under 18 years of age. See Maine Revised Statutes Title 18-C Sec. 5-102
- Agent: means an individual with capacity designated in a power of attorney for health care to make a health care decision for the individual granting the power. See Maine Revised Statutes Title 18-C Sec. 5-802
- Capacity: means the ability to have a basic understanding of the diagnosed condition and to understand the significant benefits, risks and alternatives to the proposed health care and the consequences of forgoing the proposed treatment, the ability to make and communicate a health care decision and the ability to understand the consequences of designating an agent or surrogate to make health care decisions. See Maine Revised Statutes Title 18-C Sec. 5-802
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: means a judicially appointed guardian or conservator having authority to make a health care decision for an individual. See Maine Revised Statutes Title 18-C Sec. 5-802
- Health care: means any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition. See Maine Revised Statutes Title 18-C Sec. 5-802
- Health care decision: means a decision made by an individual with capacity or by the individual's agent, guardian or surrogate regarding the individual's health care, including:
A. See Maine Revised Statutes Title 18-C Sec. 5-802Health care institution: means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business. See Maine Revised Statutes Title 18-C Sec. 5-802 Health care provider: means an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession. See Maine Revised Statutes Title 18-C Sec. 5-802 Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases. Life-sustaining treatment: means any medical procedure or intervention that, when administered to a person without capacity and in either a terminal condition or a persistent vegetative state, will serve only to prolong the process of dying. See Maine Revised Statutes Title 18-C Sec. 5-802 Majority: when used in reference to age shall mean the age of 18 and over. See Maine Revised Statutes Title 1 Sec. 72 Minor: means an unemancipated individual who is under 18 years of age. See Maine Revised Statutes Title 18-C Sec. 5-102 Parent: means a person who has established a parent-child relationship with the child under Title 19?A, chapter 61 and whose parental rights have not been terminated. See Maine Revised Statutes Title 18-C Sec. 5-102 Persistent vegetative state: means a state that occurs after coma in which the patient totally lacks higher cortical and cognitive function, but maintains vegetative brain stem processes, with no realistic possibility of recovery, as diagnosed in accordance with acceptable medical standards. See Maine Revised Statutes Title 18-C Sec. 5-802 Physician: means an individual authorized to practice medicine under Title 32. See Maine Revised Statutes Title 18-C Sec. 5-802 Primary physician: means a physician designated by an individual with capacity or by the individual's agent, guardian or surrogate to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility. See Maine Revised Statutes Title 18-C Sec. 5-802 Reasonably available: means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health care needs. See Maine Revised Statutes Title 18-C Sec. 5-802 Supervising health care provider: means the primary physician or, if there is no primary physician or the primary physician is not reasonably available, the health care provider who has undertaken primary responsibility for a patient's health care. See Maine Revised Statutes Title 18-C Sec. 5-802 Surrogate: means an individual with capacity, other than a patient's agent or guardian, authorized under this Part to make health care decisions as provided in section 5?806. See Maine Revised Statutes Title 18-C Sec. 5-802 Terminal condition: means an incurable and irreversible condition that, without the administration of life-sustaining treatment, in the opinion of the primary physician, will result in death within a relatively short time. See Maine Revised Statutes Title 18-C Sec. 5-802
2. Priority of who may act as surrogate. Any member of the following classes of the patient’s family who is reasonably available, in descending order of priority, may act as surrogate:
A. The spouse, unless legally separated; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
B. An adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
C. An adult child; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
D. A parent; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
E. An adult brother or sister; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
F. An adult grandchild; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
G. An adult niece or nephew, related by blood or adoption; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
H. An adult aunt or uncle, related by blood or adoption; or [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
I. Any adult relative of the patient, related by blood or adoption, who is familiar with the patient’s personal values and is reasonably available for consultation. [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
3. Adult who has exhibited special concern. If none of the individuals eligible to act as surrogate under subsection 2 is reasonably available, an adult who has exhibited special concern for the patient, who is familiar with the patient’s personal values and who is reasonably available may act as surrogate.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
4. Communication of assumption of authority. A surrogate shall communicate the surrogate’s assumption of authority as promptly as practicable to the members of the patient’s family specified in subsection 2 who can be readily contacted.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
5. Conflict among potential surrogates; neutral 3rd party or court. If more than one member of a class assumes authority to act as surrogate and they, or members of different classes who are reasonably available, do not agree on a health care decision and the supervising health care provider is so informed, the supervising health care provider may comply with the decision of the class having priority or a majority of the members of that class who have communicated their views to the provider. The health care provider may refer the members of the class or classes to a neutral 3rd party for assistance in resolving the dispute or to a court of competent jurisdiction. If the class is evenly divided concerning the health care decision and the supervising health care provider is so informed, that class and all individuals having lower priority are disqualified from making the decision.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
6. Decision in accordance with instructions, wishes, best interest. A surrogate shall make a health care decision in accordance with the patient’s individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate’s determination of the patient’s best interest and in good faith. In determining the patient’s best interest, the surrogate shall consider the patient’s personal values to the extent known to the surrogate. A consent is not valid if it conflicts with the intention of the patient previously expressed to the surrogate.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
7. Effective without judicial approval. A health care decision made by a surrogate for a patient lacking capacity is effective without judicial approval.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
8. Disqualification. An individual with capacity at any time may disqualify another, including a member of the individual’s family, from acting as the individual’s surrogate by a signed writing or by personally informing the supervising health care provider of the disqualification.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
9. Conflict of interest. A surrogate may not be an owner, operator or employee of a residential long-term health care institution at which the patient is receiving care unless the surrogate is one of the following:
A. The spouse of the patient; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
B. An adult child of the patient; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
C. A parent of the patient; or [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
D. A relative of the patient with whom the patient has resided for more than 6 months prior to the decision. [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
10. Written declaration supporting authority. A supervising health care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
SECTION HISTORY
PL 2017, c. 402, Pt. A, §2 (NEW). PL 2017, c. 402, Pt. F, §1 (AFF). PL 2019, c. 417, Pt. B, §14 (AFF).