CO Code § 15-18.5-104 (2021)
2021 Colorado Code|Title 15 - Probate, Trusts, and Fiduciaries|Article 18.5 - Proxy and Surrogate Decision-Makers for Medical Treatment and Health Care Benefit Decisions|§ 15-18.5-104. Surrogate Decision-Makers for Health-Care Benefits

  A proxy decision-maker for medical treatment selected in accordance with section 15-18.5-103 or a person with the right to act as a surrogate decision-maker in a designated beneficiary agreement made pursuant to article 22 of this title shall have authority to make health-care benefit decisions on behalf of an adult patient and may be known additionally as a surrogate decision-maker for health-care benefits.    A court or the attending physician may make the determination that a person lacks the decisional capacity to make health-care benefit decisions. The determination shall be documented in such patient's medical record. The determination may also be made by an advanced practice nurse who has collaborated about the patient with a licensed physician either in person, by telephone, or electronically. The advanced practice nurse shall document in the patient's record the name of the physician with whom the advanced practice nurse collaborated. The attending physician or nurse shall make specific findings regarding the cause, nature, and projected duration of the person's lack of decisional capacity regarding health-care benefit decisions. Such determination and findings shall be documented in the person's medical record.    Upon a determination that an adult patient lacks decisional capacity to make health-care benefit decisions, the attending physician, advanced practice nurse, or the physician's or nurse's designee shall make reasonable efforts to notify the patient of the patient's lack of decisional capacity. In addition, the attending physician or advanced practice nurse or the physician's or nurse's designee shall make reasonable efforts to locate as many interested persons as defined in this subsection (3) as practicable, and the attending physician or advanced practice nurse may rely on such individuals to notify other family members or interested persons. For the purposes of this section, “interested persons” means the patient's spouse; either parent of the patient; any adult child, sibling, or grandchild of the patient; or any close friend of the patient. Upon locating an interested person, the attending physician or advanced practice nurse or the physician's or nurse's designee shall inform such person of the patient's lack of decisional capacity and determine whether such interested person is available, willing, and has the capability to act as a surrogate decision-maker for health-care benefits for the patient.    If a proxy decision-maker for medical treatment or an interested person, as defined in subsection (3) of this section, is unavailable, unwilling, or does not have the capability to make a health-care benefit decision on behalf of a person lacking the decisional capacity to make a health-care benefit decision pursuant to this section, then the attending physician or his or her designee may appoint a surrogate decision-maker for health-care benefits as described in subsection (5) of this section.    The surrogate decision-maker for health-care benefits appointed by an attending physician or his or her designee may be a private individual or an individual acting on behalf of an organization, including an employee of the organization, willing to voluntarily assume the fiduciary responsibility to make health-care benefit decisions in the best interests of the person who lacks the decisional capacity to make health-care benefit decisions. The appointed surrogate decision-maker for health-care benefits shall be free of conflicts specified in subsection (9) of this section.    Community and charitable organizations may provide volunteers or employees to serve as surrogate decision-makers for health-care benefits. The division of insurance, established in section 10-1-103, C.R.S., shall be available to provide assistance to surrogate decision-makers for health-care benefits regarding medicare benefits. A physician or his or her designee may contact nonprofit entities that serve the elderly or disability communities for assistance in locating an appropriate surrogate decision-maker for health-care benefits.    After a physician or his or her designee locates an individual willing to act as the surrogate decision-maker for health-care benefits pursuant to subsection (3) of this section, the physician shall certify the appointment in writing on the form set forth in section 15-18.5-105.    If the surrogate decision-maker for health-care benefits, a proxy decision-maker for medical treatment, an interested person, the person's guardian, or the attending physician believes the patient has regained decisional capacity, then the attending physician shall reexamine the patient and determine whether or not the patient has regained such decisional capacity and shall enter the decision and the basis therefor into the patient's medical record and shall notify the patient, the surrogate decision-maker for health-care benefits, and the person who initiated the redetermination of decisional capacity.    A surrogate decision-maker for health-care benefits may not be an employee, a contractor, or an official representative of, or receive any remuneration of any kind from, a health-care provider, medical benefit provider, pharmaceutical company, pharmacy benefit management company, pharmacy, or any person or entity engaged in the sale of insurance.    A surrogate decision-maker for health-care benefits shall have access to all necessary information, including but not limited to:   Personal health information as defined by the federal “Health Insurance Portability and Accountability Act of 1996”, 42 U.S.C. sec. 1320d-7 (a)(2); and    Financial information needed to make appropriate health-care benefit decisions; except that any bank, trust company, savings and loan association, credit union, or insurance company regulated under any laws of this state or the United States and any officer, employee, agent, or affiliate of any of the foregoing entities shall be exempt from any requirement to provide financial information to a surrogate decision-maker under the provisions of this section.       A surrogate decision-maker for health-care benefits shall make decisions that are in the best interests of the person on whose behalf the decisions are made.    Any entity, including a financial entity, that relies in good faith on a certificate of appointment of a surrogate decision-maker for health-care benefits received directly from the attending physician or his or her designee shall be immune from liability for actions taken on the basis of said certificate.    A surrogate decision-maker for health-care benefits shall be immune from liability for decisions made in good faith.    An attending physician, health-care provider, or health-care facility that acts in substantial compliance with this section shall not be subject to civil or criminal liability or regulatory sanction relating to the selection or actions of a surrogate decision-maker for health-care benefits.    Nothing in this section shall be construed as requiring a surrogate decision-maker for health-care benefits to make a decision or from prohibiting an individual from consulting another person or entity to obtain assistance in making a health-care benefit decision.     History. Source: L. 2006: Entire section added, p. 841, § 5, effective May 4. L. 2008: (2) and (3) amended, p. 125, § 6, effective January 1, 2009. L. 2009: (1) amended,(HB 09-1260), ch. 107, p. 446, § 14, effective July 1. L. 2010: (1) amended,(SB 10-199), ch. 374, p. 1754, § 21, effective July 1.    Cross references:   For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101 .   ANNOTATION   Decision to agree to arbitrate is not a “medical treatment decision” and as such not within the authority of a health care proxy. There exists a distinction between an agreement to provide medical services, including an agreement to admit a patient to a health care facility, and an agreement to arbitrate a health care dispute. Lujan v. Life Care Ctrs. of Am., 222 P.3d 970 (Colo. App. 2009).