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S.B. 89
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MUTUAL DEPENDENCE BENEFITS CONTRACT
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2005 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Gregory S. Bell
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LONG TITLE
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General Description:
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This bill provides for the creation of mutual dependence benefits contracts, which allow
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two adults, not eligible for marriage, to share certain rights and responsibilities
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regarding property ownership or health-related matters.
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Highlighted Provisions:
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This bill:
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. defines terms;
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. provides for the creation of mutual dependence benefits contracts;
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. establishes eligibility requirements for mutual dependence benefits contracts;
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. allows parties to a mutual dependence benefits contract to select the following
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groups of rights and responsibilities to be shared:
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. health-related rights and responsibilities; and
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. property-related rights and responsibilities;
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. makes amendments related to the exercise of rights and responsibilities selected by
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the parties;
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. requires the Department of Health to administer the creation of mutual dependence
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benefits contracts;
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. requires the Department of Health to maintain a database of mutual dependence
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benefits contracts;
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. allows the Department of Health to collect fees for the recording and copying of
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related forms;
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. allows the Department of Health to retain, as a dedicated credit to offset its costs,
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fees collected for the recording and copying of mutual dependence benefits contract
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forms;
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. provides for the termination of mutual dependence benefits contracts;
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. requires notification to a party to a mutual dependence benefits contract of certain
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guardianship proceedings instituted in the interest of the other party to a mutual
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dependence benefits contract; and
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. makes technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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26-28-4, as last amended by Chapter 343, Laws of Utah 1995
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57-1-5, as last amended by Chapter 89, Laws of Utah 2002
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58-9-602, as enacted by Chapter 49, Laws of Utah 2003
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75-5-309, as last amended by Chapter 104, Laws of Utah 1988
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78-14-5, as last amended by Chapter 9, Laws of Utah 2001
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ENACTS:
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26-48-101, Utah Code Annotated 1953
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26-48-102, Utah Code Annotated 1953
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26-48-201, Utah Code Annotated 1953
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26-48-202, Utah Code Annotated 1953
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26-48-203, Utah Code Annotated 1953
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26-48-204, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
26-28-4
is amended to read:
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26-28-4. Anatomical gifts by others -- Donations or revocations.
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(1) Unless a person made an unrevoked refusal to make an anatomical gift, in
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accordance with Subsection
26-28-3
(12), any of the following persons, in order of priority
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listed, may make an anatomical gift of all or a part of a decedent's body in accordance with this
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chapter:
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(a) the decedent's spouse;
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(b) a person who is a party to a mutual dependence benefits contract with the decedent
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in which the parties have elected to share health-related rights and responsibilities under
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Subsection
26-48-202
(2);
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[(b)] (c) the decedent's adult son or daughter;
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[(c)] (d) either of the decedent's parents;
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[(d)] (e) the decedent's brother or sister who is 18 years of age or older;
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[(e)] (f) the decedent's grandparent; or
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[(f)] (g) the decedent's court appointed guardian at the time of the decedent's death.
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(2) A person listed in Subsection (1) may not make an anatomical gift if:
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(a) a person in a prior class is available at the time of death to determine whether to
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make an anatomical gift;
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(b) [he] the person knows of a refusal or contrary indications made by the decedent; or
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(c) [he] the person knows of an objection to making an anatomical gift by a member of
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the person's class or a prior class.
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(3) A person authorized in accordance with this section may make an anatomical gift
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only by:
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(a) signing a document of gift;
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(b) making a telegraphic, facsimile, recorded telephonic, or other recorded message; or
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(c) making any other form of communication directed to and received simultaneously
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by two individuals[,] if:
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(i) one of [whom] the individuals immediately reduces the communication to
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writing[,]; and
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(ii) both individuals sign [it] the written communication.
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(4) A person of the same or prior class may revoke an anatomical gift made by a person
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authorized in accordance with Subsection (1) if the procurement entity knows of the revocation
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before a designee or employee of the entity has begun to physically remove the part.
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(5) A failure to make an anatomical gift under this section is not an objection to or
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refusal to the making of an anatomical gift.
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Section 2.
Section
26-48-101
is enacted to read:
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CHAPTER 48. MUTUAL DEPENDENCE BENEFITS CONTRACT ACT
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Part 1. General Provisions
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26-48-101. Title.
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This chapter is known as the "Mutual Dependence Benefits Contract Act."
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Section 3.
Section
26-48-102
is enacted to read:
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26-48-102. Definitions.
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As used in this chapter:
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(1) "Contract" means a mutual dependence benefits contract made pursuant to this
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chapter.
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(2) "Health care facility" means:
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(a) a general acute hospital;
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(b) a specialty hospital;
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(c) a home health agency;
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(d) a hospice;
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(e) a nursing care facility;
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(f) a residential-assisted living facility;
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(g) a birthing center;
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(h) an ambulatory surgical facility;
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(i) a small health care facility;
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(j) an abortion clinic;
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(k) a facility owned or operated by a health maintenance organization; and
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(l) an end stage renal disease facility.
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(3) "Incapacity" means impairment to the extent of lacking sufficient understanding or
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capacity to make or communicate responsible decisions by reason of:
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(a) mental illness;
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(b) mental deficiency;
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(c) physical illness or disability;
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(d) chronic use of drugs;
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(e) chronic intoxication; or
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(f) other cause.
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(4) "Party" means a person who has entered into a mutual dependence benefits contract
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pursuant to this chapter.
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Section 4.
Section
26-48-201
is enacted to read:
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26-48-201. Formation of a mutual dependence benefits contract.
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(1) Two individuals may create a mutual dependence benefits contract by satisfying the
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requirements of this section.
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(2) To form a mutual dependence benefits contract under this chapter:
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(a) both individuals must be at least 18 years of age;
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(b) neither individual may be married;
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(c) neither individual may be a party to any other mutual dependence benefits contract;
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(d) the individuals must not be eligible for marriage to one another under the laws of
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Utah;
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(e) each individual shall sign a mutual dependence benefits contract form provided by
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the department;
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(f) each individual's signature required by Subsection (2)(e) shall be acknowledged by
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a notary pursuant to Title 46, Chapter 1, Notaries Public Reform Act;
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(g) the mutual dependence benefits contract form shall be filed with the department
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pursuant to Section
26-48-203
; and
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(h) on the mutual dependence benefits contract form the individuals shall make the
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election provided for by Subsection
26-48-202
(1).
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Section 5.
Section
26-48-202
is enacted to read:
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26-48-202. Mutual dependence benefits contract.
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(1) A mutual dependence benefits contract, at the election of the parties, may provide
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for:
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(a) health-related rights and responsibilities, pursuant to Subsection (2);
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(b) property-related rights and responsibilities, pursuant to Subsection (3); or
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(c) both health-related and property-related rights and responsibilities.
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(2) Health-related rights and responsibilities provided by a mutual dependence benefits
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contract are limited to:
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(a) the right to make decisions concerning the medical care of the other party to the
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contract under Subsection
78-14-5
(4) in the event of incapacity;
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(b) the right to visit the other party to the contract in a health care facility under the
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same terms as an immediate family member would be allowed visitation by the health care
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facility;
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(c) in the event of the death of the other party to the contract, the right to make an
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anatomical gift on behalf of the other party to the contract under Subsection
26-28-4
(1); and
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(d) the right and responsibility, upon the death of the other party to the contract, to
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control the disposition of remains of the deceased under Section
58-9-602
.
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(3) Property-related rights and responsibilities provided by a mutual dependence
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benefits contract are limited to a presumption that real property acquired by the parties during
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the pendency of the contract is held in joint tenancy with rights of survivorship under
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Subsection
57-1-5
(1)(b).
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Section 6.
Section
26-48-203
is enacted to read:
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26-48-203. Administration of mutual dependence benefits contract.
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(1) The department shall:
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(a) create a mutual dependence benefits contract form that complies with the
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provisions of this chapter;
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(b) distribute copies of the mutual dependence benefits contract form:
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(i) online;
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(ii) at the department's offices; and
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(iii) to county clerks;
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(c) record completed mutual dependence benefits contracts in the department's records;
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(d) record documents terminating mutual dependence benefits contracts in the
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department's records;
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(e) provide a certified copy of a mutual dependence benefits contract to each of the
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parties to the contract:
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(i) at time of recording; and
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(ii) upon request by either of the parties to the mutual dependence benefits contract;
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and
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(f) maintain a database of mutual dependence benefits contracts and terminations.
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(2) The department is not required to verify that the parties to a mutual dependence
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benefits contract:
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(a) are at least 18 years of age;
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(b) are not married; or
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(c) are not eligible for marriage to one another under the laws of Utah.
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(3) (a) The department may establish and collect reasonable fees for the recording or
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copying of a mutual dependence benefits contract or termination of a contract.
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(b) Funds generated under Subsection (3)(a) may be used by the department as a
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dedicated credit to cover the reasonable costs of administering this chapter, including the cost
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of:
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(i) providing contract forms;
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(ii) recording contracts and terminations;
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(iii) providing certified copies of contracts; and
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(iv) maintaining a database of contracts and terminations.
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Section 7.
Section
26-48-204
is enacted to read:
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26-48-204. Termination of mutual dependence benefits contract.
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(1) Any party to a mutual dependence benefits contract may unilaterally terminate the
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contract by recording a writing with the department that:
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(a) is signed by the party seeking termination;
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(b) immediately rescinds all rights and responsibilities under the contract; and
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(c) is acknowledged by a notary pursuant to Title 46, Chapter 1, Notaries Public
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Reform Act.
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(2) A mutual dependence benefits contract is automatically terminated on the day on
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which a party to the contract marries.
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(3) The termination of a mutual dependence benefits contract has no impact on:
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(a) existing property rights, including ownership rights in property acquired during the
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existence of the mutual dependence benefits contract; or
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(b) rights and responsibilities existing independent of the mutual dependence benefits
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contract.
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Section 8.
Section
57-1-5
is amended to read:
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57-1-5. Creation of joint tenancy presumed -- Tenancy in common -- Severance of
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joint tenancy.
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(1) (a) Beginning on May 5, 1997, every ownership interest in real estate granted to
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two persons in their own right who are designated as husband and wife in the granting
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documents is presumed to be a joint tenancy interest with rights of survivorship, unless
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severed, converted, or expressly declared in the grant to be otherwise.
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(b) Every ownership interest in real estate granted to two persons in their own right
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who are designated in the granting documents as parties to a mutual dependence benefits
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contract who have elected to share property-related rights and responsibilities under Subsection
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26-48-202
(3), is presumed to be a joint tenancy interest with rights of survivorship, unless
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severed, converted, or expressly declared in the grant to be otherwise.
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[(b)] (c) Every ownership interest in real estate [which] that does not qualify for the
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joint tenancy presumption as provided in this Subsection (1)[(a)] is presumed to be a tenancy in
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common interest unless expressly declared in the grant to be otherwise.
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(2) (a) Use of words "joint tenancy" or "with rights of survivorship" or "and to the
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survivor of them" or words of similar import means a joint tenancy.
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(b) Use of words "tenancy in common" or "with no rights of survivorship" or
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"undivided interest" or words of similar import shall declare a tenancy in common.
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(3) A sole owner of real property shall create a joint tenancy in himself and another or
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others:
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(a) by making a transfer to himself and another or others as joint tenants by use of the
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words as provided in Subsection (2)(a); or
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(b) by conveying to another person or persons an interest in land in which an interest is
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retained by the grantor and by declaring the creation of a joint tenancy by use of the words as
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provided in Subsection (2)(a).
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(4) In all cases, the interest of joint tenants shall be equal and undivided.
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(5) A "joint tenancy" is severed and is converted into a "tenancy in common" by a joint
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tenant by making a bona fide conveyance of the joint tenant's interest in the property to himself
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or to another.
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(6) The amendments to this section in Chapter 124, Laws of Utah 1997 have no
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retrospective operation and shall govern instruments executed and recorded on or after May 5,
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1997.
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Section 9.
Section
58-9-602
is amended to read:
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58-9-602. Determination of control of disposition.
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The right and duty to control the disposition of a deceased person, including the
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location and conditions of the disposition, vest in the following degrees of relationship in the
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order named:
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(1) a person designated in a written instrument, excluding a power of attorney that
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terminates at death under Sections
75-5-501
and
75-5-502
, if the written instrument contains:
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(a) the name and address of the decedent;
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(b) the name and address of the person designated under this Subsection (1);
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(c) the signature of the decedent;
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(d) the signatures of at least two unrelated individuals who are not the person
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designated under this Subsection (1), each of whom signed within a reasonable time after
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witnessing the signing of the form by the decedent; and
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(e) the date or dates the written instrument was prepared and signed;
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(2) the surviving, legally recognized spouse of the decedent;
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(3) a person who is a party to a mutual dependence benefits contract with the decedent
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in which the parties have elected to share health-related rights and responsibilities under
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Subsection
26-48-202
(2);
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[(3)] (4) the surviving child or the majority of the surviving children of the decedent
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over the age of 18;
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[(4)] (5) the unanimous consent of the surviving parent, parents, or lawful custodian of
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the decedent;
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[(5)] (6) the person or persons in the next degree of succession under Title 75, Chapter
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2, Intestate Succession and Wills;
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[(6)] (7) any public official charged with arranging the disposition of deceased persons;
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[(7)] (8) a person or persons whom the funeral service director reasonably believes is
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entitled to control the disposition; and
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[(8)] (9) in the absence of any person under Subsections (1) through [(7)] (8), any
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person willing to assume the right and duty to control the disposition.
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Section 10.
Section
75-5-309
is amended to read:
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75-5-309. Notices in guardianship proceedings.
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(1) In a proceeding for the appointment or removal of a guardian of an incapacitated
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person other than the appointment of a temporary guardian or temporary suspension of a
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guardian, notice of hearing shall be given to each of the following:
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(a) the ward or the person alleged to be incapacitated and spouse, parents, and adult
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children of the ward or person;
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(b) a person who is a party to a mutual dependence benefits contract with the ward or
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person alleged to be incapacitated in which the parties have elected to share health-related
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rights and responsibilities under Subsection
26-48-202
(2);
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[(b)] (c) any person who is serving as guardian or conservator or who has care and
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custody of the ward or person;
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[(c)] (d) in case no other person is notified under Subsection (1)(a), at least one of the
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closest adult relatives, if any can be found; and
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[(d)] (e) any guardian appointed by the will of the:
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(i) parent who died later; or
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(ii) spouse of the incapacitated person.
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(2) (a) The notice shall be in plain language and large type and the form shall have the
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final approval of the Judicial Council.
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(b) The notice shall indicate the time and place of the hearing, the possible adverse
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consequences to the person receiving notice of rights, a list of rights, including the person's
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own or a court appointed counsel, and a copy of the petition.
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(3) (a) Notice shall be served personally on the alleged incapacitated person and the
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person's spouse and parents if they can be found within the state.
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(b) Notice to the spouse and parents, if they cannot be found within the state, and to all
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other persons except the alleged incapacitated person shall be given as provided in Section
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75-1-401
.
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(c) Waiver of notice by the person alleged to be incapacitated is not effective unless:
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(i) the person attends the hearing; or
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(ii) the person's waiver of notice is confirmed in an interview with the visitor appointed
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pursuant to Section
75-5-303
.
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Section 11.
Section
78-14-5
is amended to read:
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78-14-5. Failure to obtain informed consent -- Proof required of patient --
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Defenses -- Consent to health care.
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(1) (a) When a person submits to health care rendered by a health care provider, it shall
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be presumed that what the health care provider did was either expressly or impliedly authorized
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to be done. For a patient to recover damages from a health care provider in an action based
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upon the provider's failure to obtain informed consent, the patient must prove the following:
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[(a)] (i) that a provider-patient relationship existed between the patient and health care
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provider;
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[(b)] (ii) the health care provider rendered health care to the patient;
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[(c)] (iii) the patient suffered personal injuries arising out of the health care rendered;
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[(d)] (iv) the health care rendered carried with it a substantial and significant risk of
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causing the patient serious harm;
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[(e)] (v) the patient was not informed of the substantial and significant risk;
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[(f)] (vi) a reasonable, prudent person in the patient's position would not have
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consented to the health care rendered after having been fully informed as to all facts relevant to
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the decision to give consent[. In determining what a reasonable, prudent person in the patient's
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position would do under the circumstances, the finder of fact shall use the viewpoint of the
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patient before health care was provided and before the occurrence of any personal injuries
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alleged to have arisen from said health care]; and
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[(g)] (vii) the unauthorized part of the health care rendered was the proximate cause of
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personal injuries suffered by the patient.
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(b) For purposes of Subsection (1)(a)(vi), in determining what a reasonable, prudent
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person in the patient's position would do under the circumstances, the finder of fact shall use
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the viewpoint of the patient before health care was provided and before the occurrence of any
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personal injuries alleged to have arisen from the health care.
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(2) (a) It shall be a defense to any malpractice action against a health care provider
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based upon alleged failure to obtain informed consent if:
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[(a)] (i) the risk of the serious harm [which] that the patient actually suffered was
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relatively minor;
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[(b)] (ii) the risk of serious harm to the patient from the health care provider was
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commonly known to the public;
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[(c)] (iii) the patient stated, prior to receiving the health care complained of, that [he]
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the patient:
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(A) would accept the health care involved regardless of the risk; or [that he]
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(B) did not want to be informed of the matters to which [he] the patient would be
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entitled to be informed;
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[(d)] (iv) the health care provider, after considering all of the attendant facts and
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circumstances, used reasonable discretion as to the manner and extent to which risks were
343
disclosed, if the health care provider reasonably believed that additional disclosures could be
344
expected to have a substantial and adverse effect on the patient's condition; or
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[(e)] (v) the patient or [his] the patient's representative executed a written consent
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which sets forth the nature and purpose of the intended health care and which contains a
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declaration that the patient accepts the risk of substantial and serious harm, if any, in hopes of
348
obtaining desired beneficial results of health care and which acknowledges that health care
349
providers involved have explained [his] the patient's condition and the proposed health care in
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a satisfactory manner and that all questions asked about the health care and its attendant risks
351
have been answered in a manner satisfactory to the patient or [his] the patient's representative[;
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such].
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(b) The written consent described in Subsection (2)(a)(v) shall be a defense to an action
354
against a health care provider based upon failure to obtain informed consent unless the patient
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proves that the person giving the consent lacked capacity to consent or shows by clear and
356
convincing proof that the execution of the written consent was induced by the defendant's
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affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
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(3) Nothing contained in this [act] chapter shall be construed to prevent any person 18
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years of age or over from refusing to consent to health care for [his] the person's own person
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upon personal or religious grounds.
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(4) The following persons are authorized and empowered to consent to any health care
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not prohibited by law:
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(a) any parent, whether an adult or a minor, for [his] the parent's minor child;
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(b) any married person, for a spouse;
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(c) any person who is a party to a mutual dependence benefits contract in which the
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parties have elected to share health-related rights and responsibilities under Subsection
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26-48-202
(2), for the other party to the contract;
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[(c)] (d) any person temporarily standing in loco parentis, whether formally serving or
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not, for the minor under [his] the person's care and any guardian for [his] the person's ward;
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[(d)] (e) any person 18 years of age or over for [his or her] the person's parent who is
371
unable by reason of age, physical or mental condition, to provide such consent;
372
[(e)] (f) any patient 18 years of age or over;
373
[(f)] (g) any female regardless of age or marital status, when given in connection with
374
her pregnancy or childbirth;
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[(g)] (h) in the absence of a parent, any adult for [his] the adult's minor brother or
376
sister; and
377
[(h)] (i) in the absence of a parent, any grandparent for [his] the grandparent's minor
378
grandchild.
379
(5) [No] A person who in good faith consents or authorizes health care treatment or
380
procedures for another as provided by this [act shall be] chapter may not be subject to civil
381
liability.
Legislative Review Note
as of 11-27-04 2:29 PM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.