A bill that would add “adult friend” to the list of individuals allowed by law to make health care decisions for another person was approved in a House committee Wednesday.
House Bill 385 passed the House Judiciary Committee on an 18-0 vote. Rep. Kimberly Poore Moser (R-Taylor Mill) is the bill’s sponsor. She introduced the bill this year on recommendation of the Kentucky Judicial Commission on Mental Health, a state commission overseen by the Kentucky Court of Justice. The bill is named “Seth’s Law” for Seth Stevens, a young attorney with the state’s Administrative Office of the Courts who died by suicide last year.
Kentucky law now only allows legal guardians, durable power of attorney, spouses, adult children, parents, or the “nearest living relative” to make health care decisions for someone who hasn’t outlined their wishes in an “advance directive” (such as a living will) and are currently unable to make their own health care decisions. Friends – including live-in partners – are not on the list.
Elderly patients with dementia or others deemed incapable of making health care decisions for themselves — but who don’t have an advance directive or anyone under current law to speak for them –would be most helped by HB 385, said Moser.
The bill could, for example, help hospitals determine where a patient should go when they are discharged, Moser told the committee Wednesday.
“Do they want to go home, do they want to go to long term care, do they want to go to hospice?” are some questions that a close friend may be able to answer, said Moser. Without someone to speak for them or legal documentation, many patients are left to emergency guardianship as a last resort, according to Kenton County Attorney Stacy Tapke, who testified with Moser before the committee Wednesday.
“That is problematic for a lot of individuals, particularly those who are low income. It presents barriers for them, both from taking off work, transportation concerns, and it can be a deterrent to even step up to begin with,” said Tapke.
Tapke – who often handles court-ordered emergency guardianship at her office – said that authority most often goes to a friend or a significant other living with the person anyway. Pastors, priests, even neighbors can also be tapped to do the job, she said.
“I’ve had a neighbor, someone who checked on (the patient) on the regular and they were willing to step up and do this,” said Tapke. “I think you would not want to be too restrictive.”
“Adult friend” is defined in the legislation as someone who “has maintained regular contact with the patient and is familiar with the patient’s activities, health, and religious and moral beliefs.”
Some lawmakers on the committee questioned how broadly “adult friend” could be interpreted. Rep. Patrick Flannery (R-Olive Hill), who ultimately voted to get the bill out of committee, said, “I guess my concern is that could be somewhat broad, and I wouldn’t want there to be some potential of abuse on that.”
Ashland Republican Scott Sharp, who also voted out HB 385 on Wednesday, asked how hospitals looking at an adult friend would “document their relationship.”
Basically, who qualifies as an adult friend would be left up to the hospital or medical staff in a majority of cases, Tapke said. “I would defer to the hospitals. I suspect they are going to have a pretty healthy process where they are going to document how they came to decide they were going to allow them to be a decision maker.”
House Judiciary chair Rep. Daniel Elliott (R-Danville) said making the language too restrictive could be problematic.
“If we were to make that too onerous, the medical staff is having to go through the evaluation process of who’s a friend and who isn’t,” Elliott said before voting for the bill.
The legislation would also streamline mental evaluations of court defendants, allowing outpatient examinations at jails or when a defendant is out on bond, for example, instead of requiring inpatient state evaluations only.
HB 385 now returns to the full House for its consideration.