Advanced Directive for Healthcare

In Pennsylvania, capacitated adults have the right to decide whether to accept, reject or discontinue medical care and treatment. There may be times, however, when a person cannot make his or her wishes known to a medical provider. For example, a person may be incompetent, in a terminal condition or in a state of permanent unconsciousness, and unable to tell his or her doctor what kind of care or treatment he or she would like to receive or not to receive ( 20 Pa. C.S.A. § 5401 ).

What is an advance directive?

An advance directive is a written document that you may use, under certain circumstances, to tell others what care you would like to receive or not receive should you become unable to express your wishes at some time in the future ( 20 Pa. C.S.A. § 5402 ( a ) ). An advance directive may take many forms, and are commonly referred to as a ‘living will’. In Pennsylvania, a living will is known in the law as an advance directive for health care.

Who may make a living will?

A person may make a living will who is at least 18 years old, or is a high school graduate, or has married ( 20 Pa. C.S.A. § 5404 ( a ) ).

What does it mean to be “incompetent”?

Incompetence is the lack of sufficient capacity for a person to make or communicate decisions concerning himself or herself ( 20 Pa. C.S.A. § 5403 ). The law allows your doctor to decide if you are incompetent, or in a terminal condition or permanently unconscious for purposes of a living will ( 20 Pa. C.S.A. § 5405 ).

How is a Power of Attorney terminated?

The Principal has the right to revoke, terminate, or modify the Power of Attorney at any time. The document is automatically revoked with the notice of death ( 20 Pa. C.S.A. § 5605 ( a ) ) or upon disability or incapacity if the document is not durable ( 20 Pa. C.S.A. § 5605 ( b ) ). or upon the filing for a Divorce where spouse is Agent ( 20 Pa. C.S.A. § 5601 ( e ) ( 2 ) and ( 4 ) ).

Relevant Issues

The Agent must keep separate the assets of the Principal from those of the Agent and keep a full, complete and accurate record of all transactions, receipts and disbursements on behalf of the Principal ( 20 Pa. C.S.A. § 5601 ( e ) ( 2 ) and ( 4 ) ).

The Agent may authorize admission of the Principal to a medical facility and authorize medical procedures ( 20 Pa. C.S.A. § 5603 ( h ) ) ):
A power to authorize admission to a medical, nursing, residential or similar facility and to enter into agreements for care means that the Agent may apply for the admission of the Principal to a medical, nursing, residential or other similar facility, execute any consent or admission forms required by such facility and enter into agreements for the care of the Principal ( see 20 Pa. C.S.A. § 5602 ( a ) ( 8 ) ).
A power to authorize medical and surgical procedures means that the Agent may arrange for and consent to medical, therapeutic and surgical procedures for the Principal, including the administration of drugs ( see 20 Pa. C.S.A. § 5602 ( a ) ( 9 ) ).

Liability ( 20 Pa. C.S.A. § 5608 ( a ) ):

Any person who is given instructions by an Agent, in accordance with the terms of a Power of Attorney, shall comply with the instructions. Any person who without reasonable cause fails to comply with those instructions shall be subject to civil liability for any damages resulting from non compliance. Reasonable cause shall include, but not be limited to, a good faith report having been made to the local protective services agency (Area Agency on Aging)regarding abandonment, abuse, exploitation or neglect pursuant to the Older Adults Protective Services Act ( 35 P.S. § 10225.101 ).