§ 9711. Authority and obligations of agent

(a) When the requirements of subsection 9706(a) of this title are met, and subject to the provisions of this chapter, other applicable law, and any express instructions regarding the agent's authority set forth in an advance directive or a court order, an agent shall have the authority to make any health care decisions on the principal's behalf that the principal could make if the principal had capacity.

(b) A principal with capacity retains concurrent authority with the principal's agent to make health care decisions. In the event the principal and the agent disagree on a decision regarding the principal's health care, the decision of the principal shall be controlling.

(c) The authority of an agent ceases to be effective:

(1) if the advance directive became effective pursuant to subdivision 9706(a)(1) of this title, upon a clinician's determination that the principal has recovered capacity; or

(2) when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title no longer is met.

(d)(1) After consultation with the principal, to the extent possible, and with the principal's clinician and any other appropriate health care providers and any individuals identified in the advance directive as those with whom the agent shall consult, the agent shall make health care decisions by attempting to determine what the principal would have wanted under the circumstances. In making the determination, the agent shall consider the following:

(A) the principal's specific instructions contained in an advance directive to the extent those directions are applicable;

(B) the principal's wishes expressed to the agent, guardian, or health care provider, since or prior to the execution of an advance directive, if any, to the extent those expressions are applicable; or

(C) the agent's knowledge of the principal's values or religious or moral beliefs.

(2) If the agent cannot determine what the principal would have wanted under the circumstances, the agent shall make the determination through an assessment of the principal's best interests. When making a decision for the principal on this basis, the agent shall not authorize the provision or withholding of health care on the basis of the principal's economic status or preexisting, long-term mental or physical disability.

(3) When making a determination under this subsection, the agent shall not consider the agent's own interests, wishes, values, or beliefs.

(4) If an agent is unable or unwilling to make a health care decision for the principal in compliance with the requirements of this subsection, the agent shall:

(A) recuse himself or herself with respect to the decision or resign from being the principal's agent; and

(B) notify the principal, alternate agent, health care provider, and residential care provider of the recusal or resignation.

(e) Unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights a principal with capacity would have to:

(1) request, review, receive, and copy any oral or written information regarding the principal's physical or mental health, including medical and hospital records;

(2) participate in any meetings, discussions, or conferences concerning health care decisions related to the principal;

(3) consent to the disclosure of health care information; and

(4) file a complaint on behalf of the principal regarding a health care provider, health care facility, or residential care facility.

(f) Nothing in this chapter shall be construed to give an agent authority to consent to voluntary sterilization.

(g) Unless the Probate Division of the Superior Court expressly orders otherwise in a guardianship proceeding pursuant to 14 V.S.A. § 3069(b), the authority of an agent appointed and the instructions contained in an advance directive executed prior to the appointment of the guardian shall remain in effect, and the ward may not execute an advance directive. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)