Living Will and Durable Power of Attorney for Health Care
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE ARKANSAS CODE
HEALTH CARE DECLARATION
(20-17-201 through 20-17-214)
Definitions: 20-17-201
As used in this subchapter, unless the context otherwise requires:
(1)Attending physician means the physician who has primary responsibility for the treatment and care of the patient;
(2)(A)Declaration means a writing executed in accordance with the requirements of 20-17-202(a);
(B)Declaration is an advance directive under 20-6-102;
(3)Health care proxy is a person eighteen (18) years old or older appointed by the patient as attorney-in-fact to make health care decisions including the withholding or withdrawal of life-sustaining treatment if a qualified patient, in the opinion of the attending physician, is permanently unconscious, incompetent, or otherwise mentally or physically incapable of communication;
(4)Health care provider means a person who is licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession;
(5)Life-sustaining treatment means any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dyingor to maintain the patient in a condition of permanent unconsciousness;
(6)Permanently unconscious means a lasting condition, indefinitely without change in which thought, feeling, sensations, and awareness of self and environment are absent;
(7)Person means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity;
(8)Physician means an individual licensed to practice medicine in this state;
(9)Qualified patient means a patient eighteen (18) or more years of age who has executed a declaration or appointed a health care proxy and who has been determined to be in a terminal condition or in a permanently unconscious state by the attending physician and another qualified physician who has examined the patient;
(10)State means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico; and
(11)Terminal condition means an incurable and irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of the attending physician, result in death within a relatively short time.
Cite as Ark. Code 20-17-201
History.Amended byAct 2017, No. 974,4, eff. 8/1/2017.
Acts 1987, No. 713, 1; 1999, No. 1536, 1.
20-17-202: Declaration relating to use of life-sustaining treatment
(a)
(1) An individual of sound mind and eighteen (18) or more years of age may execute at any time a declaration governing the withholding or withdrawal of life-sustaining treatment. The declaration must be signed by the declarant, or another at the declarant's direction, and witnessed by two (2) individuals.
(2) A declaration executed under this section before July 1, 2017, is valid if the declaration substantially complies with subsection (a) of this section.
(3) A declaration executed under this section on and after July 1, 2017, is valid if the declaration document:
(A) Is notarized but does not have two (2) witnesses; or
(B) Satisfies the requirements of Arkansas Healthcare Decisions Act, 20-6-101et seq.
20-17-204: Revocation of declaration
(a)A declaration may be revoked at any time and in any manner by the declarant, without regard to the declarant's mental or physical condition. A revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation.
(b)The attending physician or other health care provider shall make the revocation a part of the declarant's medical record.
20-17-205: Recording determination of terminal condition or permanent unconsciousness and declaration.
Upon determining that the declarant is in a terminal condition or permanently unconscious, the attending physician who knows of a declaration shall record the determination and the terms of the declaration in the declarant's medical record.
20-17-206: Treatment of qualified patient
(a)A qualified patient may make decisions regarding life-sustaining treatment as long as the patient is able to do so.
(b)This subchapter does not affect the responsibility of the attending physician or other health care provider to provide treatment, including nutrition and hydration, for a patient's comfort, care, or alleviation of pain.
(c)The declaration of a qualified patient known to the attending physician to be pregnant must not be given effect as long as it is possible that the fetus could develop to the point of live birth with continued application of life-sustaining treatment.
20-17-207: Transfer of patients - compliance by health care provider or healthcare institution
(a) A declaration under this subchapter is a written advance directive under the Arkansas Healthcare Decisions Act, 20-6-101et seq.
(b) The provisions of Arkansas Healthcare Decisions Act, 20-6-101et seq., concerning compliance by a health care provider or healthcare institution apply to:
(1) Determine whether an attending physician or other health care provider may decline to comply with a declaration executed under this subchapter; and
(2) Any duty to transfer a patient when the attending physician or other health care provider declines to comply with a declaration executed under this subchapter.
Cite as Ark. Code 20-17-207
History.Amended byAct 2017, No. 974,6, eff. 8/1/2017.
Acts 1987, No. 713, 7.
20-17-208: Immunities
(a)In the absence of knowledge of the revocation of a declaration, a person is not subject to civil or criminal liability or discipline for unprofessional conduct for carrying out the declaration pursuant to the requirements of this subchapter.
(b)A physician or other health care provider, whose actions under this subchapter are in accord with reasonable medical standards, is not subject to criminal or civil liability or discipline for unprofessional conduct with respect to those actions. See Form.
20-17-209: Penalties
(a)A physician or other health care provider who willfully fails to transfer in accordance with 20-17-207 is guilty of a Class A misdemeanor.
(b)A physician who willfully fails to record the determination of terminal condition or permanent unconsciousness in accordance with 20-17-205 is guilty of a Class A misdemeanor.
(c)An individual who willfully conceals, cancels, defaces, or obliterates the declaration of another without the declarant's consent or who falsifies or forges a revocation of the declaration of another is guilty of a Class A misdemeanor.
(d)An individual who falsifies or forges the declaration of another, or willfully conceals or withholds personal knowledge of a revocation as provided in 20-17-204, is guilty of a Class D felony.
(e)An individual who requires or prohibits the execution of a declaration as a condition for being insured for, or receiving, health care services is guilty of a Class D felony.
(f)A person who coerces or fraudulently induces another to execute a declaration under this subchapter is guilty of a Class D felony.
(g)The sanctions provided in this section do not displace any sanction applicable under other law.
20-17-210: Miscellaneous provisions
(a) Death resulting from the withholding or withdrawal of life-sustaining treatment pursuant to a declaration and in accordance with this subchapter does not constitute, for any purpose, a suicide or homicide.
(b) The making of a declaration pursuant to 20-17-202 does not affect in any manner the sale, procurement, or issuance of any policy of life insurance or annuity, nor does it affect, impair, or modify the terms of an existing policy of life insurance or annuity. A policy of life insurance or annuity is not legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining treatment from an insured qualified patient, notwithstanding any term to the contrary.
(c)A person may not prohibit or require the execution of a declaration as a condition for being insured for, or receiving, health care services.
(d)This subchapter creates no presumption concerning the intention of an individual who has revoked or has not executed a declaration with respect to the use, withholding, or withdrawal of life-sustaining treatment in the event of a terminal condition or permanent unconsciousness.
(e) This subchapter does not affect the right of a patient to make decisions regarding use of life-sustaining treatment, so long as the patient is able to do so, or impair or supersede any right or responsibility that a person has to effect the withholding or withdrawal of medical care.
(f) This subchapter does not require any physician or other health care provider to take any action contrary to reasonable medical standards.
(g) This subchapter does not condone, authorize, or approve mercy killing or euthanasia.
20-17-211: When health care provider may presume validity of declaration
In the absence of knowledge to the contrary, a physician or other health care provider may presume that a declaration complies with this subchapter and is valid.
20-17-212: Recognition of declaration executed in another state
A declaration executed in another state in compliance with the law of that state or of this state is validly executed for purposes of this subchapter.
20-17-213: Effect of previous declaration
An instrument executed before July 20, 1987, which substantially complies with 20-17-202(a) must be given effect pursuant to the provision of this subchapter.
20-17-214: Who may execute written request for another
If any person is a minor, or an adult where a valid declaration does not exist and a health care proxy has not been designated and who, in the opinion of the attending physician, is no longer able to make health care decisions, then such declaration may be executed in the same form on his or her behalf by the first of the following individuals or category of individuals who exist and are reasonably available for consultation:
(1)A legal guardian of the patient, if one has been appointed;
(2)In the case of an unmarried patient under the age of eighteen (18), the parents of the patient;
(3)The patient's spouse;
(4)The patient's adult child, or, if there is more than one (1), then a majority of the patient's adult children participating in the decision;
(5)The parents of a patient over the age of eighteen (18);
(6)The patient's adult sibling, or, if there is more than one (1), then a majority of the patient's adult siblings participating in the decision;
(7) Persons standing in loco parentis to the patient;
(8)A majority of the patient's adult heirs at law who participate in the decision.
