Bill to create priority list for incapacitated persons’ health‑care representatives draws mixed questions

House Committee on Judiciary members on March 25 took public testimony on House Bill 3,080, which would establish a statutory priority list of persons who should be appointed as an incapacitated person's health-care representative when the person lacks capacity and no other authority exists.

Sponsor Representative Emerson Levy summarized the bill as an "enumerated list" modeled on Washington state law to give clinicians statutory reliance when rapid decisions are needed: "This is a practical thing that comes up often... it puts a physician in a place of having to make that decision and it broadens the list who can serve as a health care representative for an incapacitated individual."

Under the draft described to the committee, the order would include, in simplified form, a guardian if appointed, spouse, majority of adult children, parents, adult siblings, adult grandchildren/nieces/nephews, and other adult persons who meet requirements such as familiarity with the incapacitated person's values, reasonable availability and a declaration establishing facts the bill requires. The bill would permit health-care providers to rely on a declaration and would prohibit certain persons (including paid caregivers) from serving as a representative in some circumstances. Two posted amendments would: (dash 1) clarify that a spouse's authority ends when a petition for dissolution or annulment is filed; and (dash 2) make additional clarifications on who is excluded from appointment.

Disability Rights Oregon testified in opposition. Ben Gurewitz, speaking for the group, said the proposal raises "serious due process concern[s]" because current practice often involves judicial involvement for guardianship or related proceedings and the bill reduces that judicial role for some situations. He also raised concerns about the bill's lack of definition for "incapacitated" and the potential for health-care professionals to apply the term too broadly or "shop around" among clinicians.

Committee members asked for clarifications about how the statute would operate in practice and whether the focus is short-term emergent decisions (for example, in an emergency department) or longer-term authority. Representative Levy and others told the panel the bill is intended primarily to assist clinicians making rapid decisions — the sponsors described the typical context as emergency care — and that the bill does not itself redefine incapacity but instead creates a priority list for who may act when a person is incapacitated and no prior directive or guardian exists. Representative Levy also pointed to existing statute (ORS 107.115) regarding termination of authority on dissolution and said the dash‑1 amendment would address that point.

Witnesses and committee members discussed possible drafting fixes and sideboards to ensure that the bill does not inadvertently transfer long‑term authority without judicial protections. No committee vote occurred; the chair closed the public hearing and the bill was carried over for a work session.