Annette Prince JD, MA Bioethics, LCSW Legislative Update 2017 Annette Prince JD, MA Bioethics, LCSW 11th Annual Palliative Care & Bioethics Conference November 3, 2017

New Oklahoma Surrogacy Law Title 63 Oklahoma Statutes Section 3102.4, effective November 1,2017, adds surrogacy hierarchy for patients incapable of medical decision-making.

Prior to November 1, 2017 Oklahoma had no statutory hierarchy of decision makers for patients who could not make their own medical treatment decisions. Family members had no legal authority to direct healthcare providers if the patient failed to appoint a health care proxy or agent under a durable power of attorney. This was often ignored by health providers.

New Surrogacy Hierarchy 1. Guardian 2. Health Care Proxy 3. Durable Power of Attorney 4. Patient’s Spouse 5. Adult Children of the Patient 6. Parents of the Patient 7. Adult Siblings 8. Other Adult Relatives in Order of Kinship 9. Close Friends of the Patient

Exceptions to Surrogacy 21 Oklahoma Statutes Section 843.1: Person convicted of a felony for abuse, financial neglect, neglect, sexual abuse or exploitation by a caretaker; 21 Oklahoma Statutes Section 843.2: Person convicted of a misdemeanor for verbal abuse by a caretaker; 21 Oklahoma Statutes Section 843.3: Person convicted of a felony for abuse, sexual abuse or exploitation of a vulnerable adult; 21 Oklahoma Statutes Section 843.4: Person in a position of trust with elderly or disabled adult endeavors to obtain funds, assets or property; 43A Oklahoma Statutes Section 10-103: Person has committed or been criminally charged with abuse, verbal abuse, or exploitation of vulnerable adult.

More Stuff Disagreement within a class of surrogates= majority rules; Health care provider or any member of a surrogacy class may petition a court to allow a different health care decision to ensure that the decision is based on the known intentions, personal views, and bests interests of the patients as provided by Title 63 Oklahoma Statutes Section 3101.16.

Making Decisions for Patients 63 OK Stat § 63-3101.16 (2014) An individual making life-sustaining treatment decisions pursuant to the provisions of the Oklahoma Advance Directive Act for a declarant shall make such decisions based on the known intentions, personal views and best interests of the declarant. If evidence of the declarant's wishes is sufficient, those wishes shall control. If there is not sufficient evidence of the wishes of the declarant, the decisions shall be based on the reasonable judgment of the individual so deciding about the values of the declarant and what the wishes of the declarant would be based upon those values.

Patients Need to Know the Law If a patient fails to appoint an agent, the statutory hierarchy will determine who has legal authority to make medical decisions when the patient lacks sufficient mental or physical capacity. The patient may not want that person to make decisions. That person may not want to make the decisions.

Questions? annette-prince@ouhsc.edu