Pennsylvania Health Care Power of Attorney/ Living Will
PENNSYLVANIA HEALTH CARE DECISION MAKING
ACT 169 OF 2006, EFFECTIVE JANUARY 29, 2007
by Dana & Robert Breslin, Esquires
All competent adults have the right to direct their own health care, providing such does not cause harm to another (Example, pregnant mother who refuses care which causes harm to her unborn child). However what happens when a person is no longer able to make a decision due to incapacity as a result of an accident, illness or other cause?
In 1992 Pennsylvania granted by statute the right of a competent adult to direct his/her treatment or to refuse treatment at their end of life stage. This is commonly reduced to a writing in what is referred to as a Living Will or what Pennsylvania calls an Advance Directive for Health Care. Pennsylvania also provided, within its Power of Attorney Statute, the right of a principal to appoint an agent who may consent to treatment and/or admission to a health care facility. This was commonly referred to as a Health Care Power of Attorney. A few years ago, Pennsylvania passed legislation whereby an individual could execute a Do Not Resuscitate Order – Out of Hospital for an individual at an end of life stage, not in an institution or facility (such as a person with advanced Lou Gehrig’s Disease who is still residing at home).
Act 169 of 2006 (Senate Bill 628 of 2005) was passed by the Pennsylvania Legislature and signed by Governor Rendell on November 29, 2006. It became effective January 29, 2007. This law attempts to combine all of the measures concerning health care decision making while adding other measures or duties into a new Chapter 54 to be found within the Pennsylvania Estate and Fiduciary Code. 20 Pa. CSA, Chapter 54 .
The Chapter is titled ” Health Care. ” It contains five sub chapters.
Sub Chapter A includes general provisions and definitions . Of importance is what it does not include which is a definition for “sound mind.” Incompetent is defined as a condition in which an individual despite being provided appropriate medical information, communication supports and technical assistance is documented by a health care provider to be:
(1) Unable to understand potential material benefits, risks and alternatives involved in a specific proposed health care decision;
(2) Unable to make that health care decision on his own; or
(3) Unable to communicate that health care decision to another person.
End stage medical condition replaces the term ” terminal condition. ” End stage medical condition means an incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment. Except as specifically set forth in an Advance Health Care Directive, the term is not intended to preclude treatment of a disease, illness or physical, mental, cognitive or intellectual condition, even if incurable and irreversible and regardless of severity, that both of the following apply:
(1) The patient would benefit from the medical treatment, including palliative care.
(2) Such treatment would not merely prolong the process of dying.
Permanent unconsciousness is a medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, an irreversible vegetative state or irreversible coma.
Health Care Power of Attorney is defined as a writing made by a principal designating an individual to make health care decisions for the principal.
Sub Chapter B – Living Wills .
The 1992 Law avoided using the phrase ” Living Will ” and substituted the term “Advance HealthCare Directive. ” Act 169 brings back the term ” Living Will. “The statute and sample form includes treatment instructions for when a person is incompetent and either at an ” end stage medical condition ” or ” permanently unconscious. ” It directs the medical care a person desires to receive or not receive at end of life. The determination as to who may make a Living Will and the execution requirements are identical to the prior law. Any competent person 18 years and over (or high school graduate or married or emancipated minor) can make a Living Will. It must be dated and witnessed by two persons. It does not need to be notarized. It can also be executed by mark or by someone on behalf of the principal. In the latter case, the person who signs on behalf of the principal cannot be a witness. It becomes operative when a copy is provided to the attending physician, the attending physician documents in the chart the principal is incompetent and is at an end stage medical condition or permanent state of unconsciousness. Revocation can be at any time and in any manner without regard to the mental condition of the principal. Revocation is effective upon communication to the attending physician by the principal or a witness to the revocation. All valid pre-existing and out of state Living Wills continue to be valid providing the directions do not conflict with Pennsylvania Law. (Example, if completed in Oregon and provided for euthanasia, PA would not accept the direction.)
Sub Chapter C, Health Care Agent/Representative
Chapter C provides for the appointment of a proxy decision maker for the principal. The proxy decision maker is either a ” health care agent ” when the principal has made the designation or a ” health care representative ” when no such designation has been made or effective.
Health Care Representative :
In the absence of a specific written authorization, or when the agent is not available to act, or the principal is unable to make decisions, the decision making authority passes to a health care representative. The statute sets out an order of priority as to who may act:
1. Spouse (unless divorce action is pending or the adult children of the principal are not the children of the spouse. Then the spouse and children have equal standing.)
2. Adult children
4. Adult brothers and sisters
5. Adult grandchildren
6. An adult with knowledge of the preference and wishes of the principal.
Health Care Agent :
If the principal appoints the proxy decision maker, then that person is called a health care agent. The document is called the Health Care Power of Attorney. Pennsylvania does not require that a Health Care Power of Attorney be a springing power, i.e. effective upon disability. However, there is a presumption that the Health Care Power of Attorney is springing. Also, providing the principal is competent, then the medical provider must first turn to the principal regarding his or her desires. For practical purposes when preparing a Health Care Power of Attorney , you may want to make the provision regarding the agent’s ability to obtain records, HIPPA Laws, etc., effective immediately and not just upon disability. Where the principal lacks capacity, a properly prepared Health Care Power of Attorney, aside from choosing the person to make decisions, can spell out a number of various wishes, goals and desires of the principal. Importantly, the health care agent can act regardless of whether the principal is in an end stage medical condition or permanently unconscious. The Health Care Power of Attorney can therefore be crafted to include the ability of the agent to act when the principal is incapacitated due to advanced diseases such as Alzheimers Disease. (Under prior law the debate was whether the agent by having the ability or power to consent to treatment also had the power to withhold consent or refuse treatment.) The appointment of an agent for health care issues, including end of life guidance directions, is a Combined or Comprehensive Health Care Directive. Act 169 includes an example of a Comprehensive Health Care Directive. The execution of the Health Care Power of Attorney mirrors the execution of a Living Will. Due to the creation of an order of priority for health care representatives, a principal in his/her Health Care Power of Attorney may want to specifically disqualify certain individuals from acting as a health care representative. (For example: An estranged child.) Further the Health Care Power of Attorney should describe the goals, the limits, and the wishes regarding continuation or withholding of life sustaining treatment. It can nominate a guardian of the person . It can name a sole agent or joint agents and should include successor agents. If joint agents are named, a provision should include whether the agents must act together or if they can act separately. In the absence of direction, it is presumed that they must act together. The Power of Attorney may also spell out the mechanisms for resolving differences among multiple agents. The Power of Attorney should specifically detail if the agent is authorized to decline health care necessary to preserve life, even though the principal may not be at an end life stage or in a permanent state of unconsciousness. The document should specifically spell out the wishes regarding artificial hydration and nutrition. The Power of Attorney may contain the power for the agent to make postmortem decisions regarding anatomical gifting, disposing of the remains or consenting to an autopsy. One important distinction between a health care representative and health care agent is that a health care representative may not decline health care necessary to preserve life unless a patient is in an end stage medical condition or permanent state of unconsciousness. The Decision Making Process – Act 169 spells out the steps the health care agent or representative must take in arriving at a decision. They are required to consult with health care providers, follow the understanding and interpretation of the principal’s instructions, including clear verbal instructions, writings, religious and moral beliefs in the principal’s best interest. In the absence of instruction, then the order or priority of decision making is:
(1) Preservation of life;
(2) Relief from suffering;
(3) Preservation or restoration of functioning
In the absence of specific written authorization or direction by a principal to withhold or withdraw nutrition and hydration artificially administered, the health care agent shall presume the principal would want nutrition and hydration. This is a rebuttable presumption. Where the agent can show previously clearly expressed wishes of the principal regarding withholding or withdrawing nutrition, etc., then such shall be followed. Absent clearly expressed wishes of the principal, the agent should consider the values and preferences of the principal. The practice point is to make sure the principal’ s wishes are clearly stated within the document and that the agent, client and family members understand its contents.
Countermand – The principal need not be of sound mind to reverse a decision to withhold or withdraw life sustaining treatment. It can be made in any manner. To countermand other decisions of the agent, the principal must be of ” sound mind. ” Sound mind is necessary to amend or revoke the Health Care Power of Attorney. Any amendment must be in writing while a revocation may be oral and is effective upon its transmittal to the attending physician or health care provider or agent.
A health care agent is under the control of the guardian of the person. Guardian of the person may revoke or amend the appointment of a health care agent. However, the guardian of the person may not revoke or amend other instructions in the Health Care Directive or Power of Attorney absent judicial consent.
Act 169 spells out what happens in the event of a disagreement among multiple agents or representatives. Essentially ” majority rules. ” If there is no majority and no resolution can be reached by consent, the matter will most likely end up at Orphans Court frustrating the very purpose of the document.
Sub Chapter D – the Combined Form which is attached hereto. This is not a required form.
Sub Chapter E – Out of Hospital DNR Order which does not change any of the prior out of hospital DNR Rules.
The Combined Statutory Form
DURABLE HEALTH CARE POWER OF ATTORNEY AND HEALTH CARE TREATMENT INSTRUCTIONS (LIVING WILL)
INTRODUCTORY REMARKS ONHEALTH CARE DECISION MAKING
You have the right to decide the type of health care you want. Should you become unable to understand, make or communicate decisions about medical care, your wishes for medical treatment are most likely to be followed if you express those wishes in advance by:
(1) naming a health care agent to decide treatment for you; and
(2) giving health care treatment instructions to your health care agent or health care provider.
An advance health care directive is a written set of instructions expressing your wishes for medical treatment. It may contain a health care power of attorney, where you name a person called a ” health care agent ” to decide treatment for you, and a living will, where you tell your health care agent initiation, continuation, withholding or withdrawal of life-sustaining treatment and other specific directions. You may limit your health care agent’ s involvement in deciding your medical treatment so that your health care agent will speak for you only when you are unable to speak for yourself or you may give your health care agent the power to speak for you immediately. This combined form gives your health care agent the power to speak for you only when you are unable to speak for yourself. A living will cannot be followed unless your attending physician determines that you lack the ability to understand, make or communicate health care decisions for yourself and you are either permanently unconscious or you have an end-stage medical condition, which is a condition that will result in death despite the introduction or continuation of medical treatment. You, and not your health care agent, remain responsible for the cost of your medical care. If you do not write down your wishes about your health care in advance, and if later you become unable to understand, make or communicate these decisions, those wishes may not be honored because they may remain unknown to others. A health care provider who refuses to honor your wishes about health care must tell you of its refusal and help to transfer you to a health care provider who will honor your wishes.
You should give a copy of your advance health care directive (a living will, health care power of attorney or a document containing both) to your health care agent, your physicians, family members and others whom you expect would likely attend to your needs if you become unable to understand, make or communicate decisions about medical care. If your health care wishes change, tell your physician and write a new advance health care directive to replace your old one. It is important in selecting a health care agent that you choose a person you trust who is likely to be available in a medical situation where you cannot make decisions for yourself. You should inform that person that you have appointed him or her so that your health care agent will understand your health care objectives. You may wish to consult with knowledgeable, trusted individuals such as family members, your physician or clergy when considering an expression of your values and health care wishes. You are free to create your own advance health care directive to convey your wishes regarding medical treatment. The following form is an example of an advance health care directive that combines a health care power of attorney with a living will.
NOTES ABOUT THE USE OF THIS FORM
If you decide to use this form or create your own advance health care directive, you should consult with your physician and your attorney to make sure that your wishes are clearly expressed and comply with the law. If you decide to use this form but disagree with any of its statements, you may cross out those statements. You may add comments to this form or use your own form to help your physician or health care agent decide your medical care. This form is designed to give your health care agent broad powers to make health care decisions for you whenever you cannot make them for yourself. It is also designed to express a desire to limit or authorize care if you have an end-stage medical condition or are permanently unconscious. If you do not desire to give your health care agent broad powers, or you know not wish to limit your care if you have an end-stage medical condition or are permanently unconscious, you may wish to use a different form or create your own. You should also use a different form if you wish to express your preferences in more detail than this form allows or if you wish for your health care agent to be able to speak for you immediately. In these situations, it is particularly important that you consult with your attorney and physician to make sure that your wishes are clearly expressed.
This form allows you to tell your health care agent your goals if you have an end-stage medical condition or other extreme and irreversible medical condition, such as advanced Alzheimer’s disease. Do you want medical care applied aggressively in these situations or would you consider such aggressive medical care burdensome and undesirable? You may choose whether you want your health care agent to be bound by your instructions or whether you want your health care agent to be able to decide at the time what course of treatment the health care agent thinks most fully reflects your wishes and values.
If you are a woman and diagnosed as being pregnant at the time a health care decision would otherwise be made pursuant to this form, the laws of this Commonwealth prohibit implementation of that decision if it directs that life-sustaining treatment, including nutrition and hydration, be withheld or withdrawn from you, unless your attending physician and an obstetrician who have examined you certify in your medical record that the life-sustaining treatment:
(1) will not maintain you in such a way as to permit the continuing development and live birth of the unborn child;
(2) will be physically harmful to you; or
(3) will cause pain to you that cannot be alleviated by medication.
A physician is not required to perform a pregnancy test on you unless the physician has reason to believe that you are pregnant. Pennsylvania law protects your health care agent and health care providers from any legal liability for following in good faith your wishes as expressed in the form or by your health care agent’ s direction. It does not otherwise change professional standards or excuse negligence in the way your wishes are carried out. If you have any questions about the law, consult an attorney for guidance. This form and explanation is not intended to take the place of specific legal or medical advice for which you should rely upon your own attorney and physician.
DURABLE HEALTH CARE POWER OF ATTORNEY AND HEALTHCARE TREATMENT INSTRUCTIONS
PART I – DURABLE HEALTHCARE POWER OF ATTORNEY
I______________________ , of ______________________County , Pennsylvania , appoint the person named below to be my health care agent to make health and personal care decisions for me. Effective immediately and continuously until my death or revocation by a writing signed by me or someone authorized to make health care treatment decisions for me, I authorize all health care providers or other covered entities to disclose to my health care agent, upon my agent’s request, any information, oral or written, regarding my physical or mental health, including, but not limited to, medical and hospital records and what is otherwise private, privileged, protected or personal health information, such as health information as defined and described in the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191, 110 Stat. 1936), the regulations promulgated thereunder and any other State or local laws and rules.
Information disclosed by a health care provider or other covered entity may be redisclosed and may no longer be subject to the privacy rules provided by 45 C.F.R. pt. 164. The remainder of this document will take effect when and only when I lack the ability to understand, make or communicate a choice regarding a health or personal care decision as verified by my attending physician. My health care agent may not delegate the authority to make decisions. My health care agent has all of the following powers subject to the health care treatment instructions that follow in part III. (Cross out any powers you do not want to give your health care agent:)
1. To authorize, withhold or withdraw medical care and surgical procedures.
2. To authorize, withhold or withdraw nutrition (food) or hydration (water) medically supplied by tube through my nose, stomach, intestines, arteries or veins.
3. To authorize my admission to or discharge from a medical, nursing, residential or similar facility and to make agreements for my care and health insurance for my care, including hospice and/or palliative care.
4. To hire and fire medical, social service and other support personnel responsible for my care.
5. To take any legal action necessary to do what I have directed.6. To request that a physician responsible for my care issue a do-not-resuscitate (DNR) order, including an out-of hospital DNR order, and sign any required documents and consents. After my death, the dispostion of my remains will be governed by the provisions of 20 Pa.C.S.A. Section 305 of Pennsylvania’ s Probate, Estates and Fiduciaries Code unless my Last Will and Testament specifically provides as to the disposition of my remains.
APPOINTMENT OF HEALTH CARE AGENT
I appoint the following health care agent:
Health Care Agent:__________________________________________ (Name and relationship)
Telephone Number: Home_________________ Work _______________
If you do not name a health care agent, health care providers will ask your family or an adult who knows your preferences and values for help in determining your wishes for treatment. Note that you may not appoint your doctor or other health care provider as your health care agent unless related to you by blood, marriage, or adoption.
If my health care agent is not readily available or if my health care agent is my spouse and an action for divorce is filed by either of us after the date of this document, I appoint the person or persons named below in the order named. (It is helpful, but not required, to make alternative health care agents.)
First Alternative Health Care agent:________________________
(Name and relationship)
Telephone Number: Home: _____________ Work _________________
Second Alternative Health Care Agent:_______________________
(Name and relationship)
Telephone Number: Home _______________ Work ________________
GUIDANCE FOR HEALTH CARE AGENT (OPTIONAL)
If I have an end-stage medical condition or other extreme irreversible medical condition, my goals in making medical decisions are as follows (insert your personal priorities such as comfort, care, preservation of mental function, etc.):___________________________________________________________________________
SEVERE BRAIN DAMAGE OR BRAIN DISEASE
If I should suffer from severe and irreversible brain damage or brain disease with no realistic hope of significant recovery, I would consider such a condition intolerable and the application of aggressive medical care to be burdensome. I therefore request that my health care agent respond to any intervening (other and separate) life-threatening conditions in the same manner as directed for an end-stage medical condition or state of permanent unconsciousness and I have indicated below.
(CHECK ONE OPTION ONLY)
________________ I agree
________________ I disagree
In any event, I do not wish for my ______________________ to act as either my Health Care representative or Health Care agent.
HEALTH CARE TREATMENT INSTRUCTIONS IN THE EVENT OF END-STAGE MEDICAL CONDITION OR PERMANENT UNCONSCIOUSNESS
The following health care treatment instructions exercise my right to make my own health care decisions. These instructions are intended to provide clear and convincing evidence of my wishes to be followed when I lack the capacity to understand, make or communicate my treatment decisions:
If I have an end-stage medical condition (which will result in my death, despite the introduction or continuation of medical treatment) or am permanently unconscious such as an irreversible coma or an irreversible vegetative state and there is no realistic hope of significant recovery, all of the following apply (cross out any treatment instruction with which you do not agree):
1. I direct that I be given health care treatment to relieve pain or provide comfort even if such treatment might shorten my life, suppress my appetite or my breathing, or be habit forming.
2. I direct that all life prolonging procedures be withheld or withdrawn.
3. My designated health care agent has the authority to request and execute any papers necessary thereto for an Out of Hospital Do Not Resuscitate Order.
4. I specifically do not want any of the following as life prolonging procedures: (If you wish to receive any of these treatments, write ” I do want” after the treatment)
Heart-lung resuscitation (CPR)_________________________
Mechanical ventilator (breathing machine)______________
Dialysis (kidney machine)______________________________
Please indicate whether you want nutrition (food) or hydration (water) medically supplied by a tube into your nose, stomach, intestine, arteries, or veins if you have an end-stage medical condition or are permanently unconscious and there is no realistic hope of significant recovery.
(Check only one statement.)
_______________ I want tube feedings to be given
OR NO TUBE FEEDINGS
________________I do not want tube feedings to be given.
HEALTH CARE AGENT’S USE OF INSTRUCTIONS
(CHECK ONE OPTION ONLY)
________ My health care agent must follow these instructions OR
________ These instructions are only guidance.
My health care agent shall have final say and may override any of my instructions. (Indicate any exceptions) ______________________________________ __________________________________________________
If I did not appoint a health care agent, these instructions shall be followed.
Pennsylvania law protects my health care agent and health care providers from any legal liability for their good faith actions in following my wishes as expressed in this form or in complying with my health care agent’ s direction. On behalf of myself, my executors and heirs, I further hold my health care agent and my health care providers harmless and indemnify them against any claim for their good faith actions in recognizing my health care agent’s authority or in following my treatment instructions.
ORGAN DONATION (CHECK ONE OPTION ONLY )
______ I consent to donate my organs and tissues at the time of my death for the purpose of transplant, medical study or education. (Insert any limitations you desire on donation of specific organs or tissues or uses for donation or organs and tissues.) ______________________________________________ ____________________________________________________________
______ I do not consent to donate my organs or tissues at the time of my death.
Having carefully read this document, I have signed it this _____ day of _______________ 20___, revoking all previous health care powers of attorney and health care treatment instructions.
(Sign full name here for health care power of attorney and health care treatment instructions.)
Two witnesses at least 18 years of age are required by Pennsylvania law and should witness your signature in each other’s presence. A person who signs this document on behalf of and at the direction of a principal may not be a witness. (It is preferable if the witnesses are not your heirs, nor your creditors, nor employed by any of your health care providers.)
(Notarization of document is not required by Pennsylvania law, by if the document is both witnessed and notarized, it is more likely to be honored by the laws of some other states.)
On this _________ day of ____________, 20___, before me personally appeared the aforesaid declarant and principal, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he/she executed the same as his/her free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County of _______________, State of _______________ the day and year first above written.
Notary Public My commission expires