The Vermont Statutes Online

Title 18 : Health

Chapter 231 : Advance Directives for Health Care, Disposition of Remains, and Surrogate Decision Making

Subchapter 001 : ADVANCE DIRECTIVES AND DISPOSITION OF REMAINS

• § 9703. Form and execution

  (a) An adult with capacity may execute an advance directive at any time.

  (b)(1) The advance directive shall be dated, executed by the principal or by another individual in the principal’s presence at the principal’s express direction if the principal is physically unable to do so, and signed by two or more witnesses at least 18 years of age, who shall sign and affirm that the principal appeared to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed.

  (2) On and after April 1, 2024, the principal shall have either signed in the physical presence of the witness or the following conditions shall have been met if the witness is a remote witness:

  (A) the principal and the remote witness were known to each other;

  (B) based on communication between the principal and the remote witness through a live, interactive, audio-video connection or by telephone, the remote witness attested that the principal seemed to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed; and

  (C) the principal included on the advance directive the name and contact information for the remote witness and the nature of the principal’s relationship to the remote witness.

  (3) A health care provider may serve as a witness to the principal’s execution of the advance directive under this subsection.

  (4) If the principal is being admitted to or is a resident of a nursing home or residential care facility or is being admitted to or is a patient in a hospital at the time of execution, the individual who explained the nature and effect of the advance directive to the principal pursuant to subsection (d) or (e) of this section may also serve as one of the witnesses to the principal’s execution of the advance directive under this subsection.

  (c) Neither the agent appointed by the principal nor the principal’s spouse, parent, adult sibling, adult child, or adult grandchild may witness the advance directive.

  (d)(1) An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a resident of a nursing home as defined in 33 V.S.A. § 7102 or a residential care facility, unless one of the following individuals explains the nature and effect of an advance directive to the principal and signs a statement affirming that the individual has provided the explanation:

  (A) an ombudsman;

  (B) a recognized member of the clergy;

  (C) an attorney licensed to practice in this State;

  (D) a Probate Division of the Superior Court designee;

  (E) an individual designated by a hospital pursuant to subsection 9709(d) of this title;

  (F) a mental health patient representative;

  (G) an individual who is volunteering at the nursing home or residential care facility without compensation and has received appropriate training regarding the explanation of advance directives; or

  (H) a clinician, provided the clinician is not employed by the nursing home or residential care facility at the time of the explanation.

  (2) It is the intent of this subsection to ensure that residents of nursing homes and residential care facilities are willingly and voluntarily executing advance directives.

  (3) The individual who explains the nature and effect of an advance directive to the principal under this subsection may be physically present in the same location as the principal at the time of the explanation or may deliver the explanation to the principal through a live, interactive, audio-video connection or by telephone.

  (e)(1) An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a patient in a hospital, unless one of the following individuals explains the nature and effect of an advance directive to the principal and signs a statement affirming that the individual has provided the explanation:

  (A) an ombudsman;

  (B) a recognized member of the clergy;

  (C) an attorney licensed to practice in this State;

  (D) a Probate Division of the Superior Court designee;

  (E) an individual designated by the hospital pursuant to subsection 9709(d) of this title; or

  (F) a mental health patient representative.

  (2) The individual who explains the nature and effect of an advance directive to the principal under this subsection may be physically present in the same location as the principal at the time of the explanation or may deliver the explanation to the principal through a live, interactive, audio-video connection or by telephone.

  (f) A durable power of attorney for health care, terminal care document, or advance directive executed prior to the enactment of this chapter shall be a valid advance directive if the document complies with the statutory requirements in effect at the time the document was executed or with the provisions of this chapter.

  (g) A principal, a witness, or an individual who explains an advance directive under subsection (d) or (e) of this section may sign the advance directive or the explanation affirmation statement using a digital signature, provided that, for a remote witness, the conditions set forth in subdivision (b)(2) of this section shall be met. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2009, No. 154 (Adj. Sess.), § 238a, effective February 1, 2011; 2013, No. 192 (Adj. Sess.), § 18; 2015, No. 23, § 48; 2017, No. 121 (Adj. Sess.), § 2, eff. May 3, 2018; 2023, No. 88 (Adj. Sess.), § 2, eff. April 1, 2024.)