Pennsylvania
has revised and updated its laws
covering health care decision making for incapacitated persons.
The new law, Act 169 (the “Act.”),2
took effect on January 29, 2007. It
regulates advance health care directives like living wills and health
care powers of attorney. It also authorizes family members to make
decisions for their loved ones.
This
article is intended to help lawyers, health care providers, and
consumers understand the requirements of the new law, and assist them to
implement effective advance care planning.
To go directly to a particular section of the Guide, please click on the
hyperlinks below.
1-1
Overview
1-2
Living Wills
1-2.1 What is a “Living Will”
1-2.2 Who may make a “Living Will”
1-2.3 Execution Requirements
1-2.4
When Does a Living Will become Operative
1-2.5 Duties of Health Care Providers
1-2.6
Duration
1-2.7 Revocation
1-2.8 Validity of non-conforming
documents 3
1-2.9 Optional Form
1-3
Health Care Agents
1-3.1 Overview - Health Care Power of
Attorney
1-3.2 Execution Requirements
1-3.3 Mandatory and Optional Provisions
1-3.4
When Operative
1-3.5
Appointment of Health Care Agents
1-3.6
Authority of Health Care Agent
1-3.6.1 Extent of Authority
1-3.6.2 The Agent’s Decision-Making
Process
1-3.6.2.1 Responsibilities of the Agent
1-3.6.2.2 Special Requirements for
Life-Sustaining Treatment Decisions
1-3.6.3.3 Supervision by the
Department
of Health
1-3.7 Countermand
1-3.8 Amendment
1-3.9 Revocation
1-3.10 Relation of Agent to
Guardian
1-3.11 Payment
of Expenses
1-3.12 Validity of Non-Conforming
Powers of Attorney 4
1-4
Health Care Representatives 5
1-4.1 Overview
1-4.2 For Whom May a Representative
Make Decisions
1-4.3 Authority of Health
Care
Representative
1-4.4 Who May Act as Health Care
Representative
1-4.5
Resolution of Disagreements
1-4.6 Communication with other Family
1-4.7 Countermand
1-4.8 Written Declaration of
Representative
1-5
Duties and Protection of Health Care Providers
1-5.1 Duties of Providers
1-5.2 Protection of Providers
1-6
Out-of-Hospital Do-Not-Resuscitate Orders
1-6.1 Overview
1-6.2
Orders, bracelets and necklaces
1-6.3 Revocation
1-6.4
EMS
Compliance
1-7
Example Advance Directive Form
1-8
POLST
1-9
General Provisions of Act 169
2-1
Mental Health Declarations and Powers of Attorney
2-1.1 Overview
2-1.2 What is a Mental
Health Care
Advance Directive
2-1.2.1 Declaration
2-1.2.2 Mental Health Power of Attorney
2-1.3
Who can execute a "Mental Health Advance Directive"
2-1.4 Execution Requirements
2-1.5 Criteria for
Operation
2-1.6 Time Limits on Validity
2-1.7 Forms
3-1
Preparing Advance Directives After Act 169
3-1.1 Advance Care Planning: A Process
not a Form
3-1.2 A Few Advance Directive Drafting
Considerations
3-1.2.1 Choice of Agent
3-1.2.2 Including Treatment
Instructions
1-1 Overview
For
many years,
Pennsylvania
was criticized for having out-of-date
laws regarding health care powers of attorney and other advance
directives. This deficiency
contributed to poor end-of-life care.6
In 2006,
Pennsylvania
enacted sweeping legislation designed to
enhance the right and ability of individuals to control the fate of
their health care. Act 169
of 2006 codifies a comprehensive set of laws governing health care
decision making for incompetent persons.
Act
169 creates statutorily-sanctioned methods for competent adults to
provide instructions for their health care in the event of incapacity.
The Act authorizes a qualified individual, referred to as the
“principal,” to appoint a surrogate decision maker(s) who can be
authorized to make any health-care decision, including those concerning
end-of-life treatment. It
updates
Pennsylvania
's laws regarding living wills and
out-of-hospital do-not-resuscitate orders.
And, it authorizes family members and other informed adults to
make health decisions for individuals lacking a designated surrogate.
The
legislation was the result of years of discussion, lobbying, and
negotiation by many interest groups.7
(An earlier version, SB 492, was vetoed in 2004). The Act shows the
effects of its collective parentage - it is lengthy and intricate and
occasionally inconsistent.8
Unfortunately, its complexity increases the potential that its
provisions will be either misunderstood or disregarded by health care
providers.
Act
169 amends and restructures the prior Chapter 54 of Title 20 of the
Pennsylvania Consolidated Statutes.
It incorporates laws regarding advance health care directives and
decision-making by agents and representatives into a revised Chapter 54.
It repeals prior Chapter 54A. The new Chapter 54 is organized in five
sub-chapters:
Subchapter
A (General Provisions). This
subchapter provides general provisions and definitions of some of the
terms that are used in the Act. However,
some notable terms such as "sound mind" are not defined.
Subchapter
B (Living Wills). updates
Pennsylvania
's 1992 law regarding health care
"declarations" (which are now referenced using the more common
term “living wills”). A living will is operative when a patient is
determined to be incompetent and has an end-stage medical condition or
is permanently unconscious.
Subchapter
C (Health Care Agents and Representatives). Subchapter C covers the
authority and responsibilities of health care agents and
representatives. A health care agent is a proxy decision maker appointed
by a principal to make health-care decisions in the event the principal
later becomes incompetent.9
The Act sets forth a set of standards for the agent to follow in making
decisions.
Where
another surrogate decision maker is not otherwise available for an
individual who lacks decision making capacity, the Act provides for
decision making authority by a "health care representative."
An individual "of sound mind" may designate this
representative. Otherwise,
the statute creates the following default order of priority:
(1)
The spouse, unless an action for divorce is pending, and the
adult children of the principal who are not the children of the spouse.
(2)
An adult child.
(3)
A parent.
(4)
An adult brother or sister.
(5)
An adult grandchild.
(6)
An adult who has knowledge of the principal's preferences and
values, including, but not limited to, religious and moral beliefs, to
assess how the principal would make health care decisions.
Subchapter
D (Combined Form). The Act contains a form10
that combines a health care power of attorney with living will end of
life treatment instructions. This
form is offered solely as an example and its use is optional, but will
likely become widespread.
Subchapter
E (Out-of-Hospital Nonresuscitation).
A do-not-resuscitate (DNR) order is a medical order written by a
patient's attending physician that directs medical personnel to forgo
cardiopulmonary resuscitation (CPR) if the patient's heart or breathing
stops. There are two varieties of DNR orders. The traditional DNR order
is given by the doctor of a hospital in-patient directing that
resuscitation not be performed in the event that the patient's heart or
breathing stops. The order, often referred to as a "no code"
or “comfort care” order, is usually placed on the patient's chart.
The second variety of DNR gives similar instructions for
non-hospitalized individuals.
A
patient's desire to forgo CPR can be more difficult to implement when
the patient does not reside in an institutional setting. Well-meaning
family members and other caregivers tend to call 911, drawing the
response of an emergency medical services (
EMS
) team, which is trained to
provide CPR and has no time to investigate the patient's
instructions for care. In 2002,
Pennsylvania
enacted Chapter 54A to provide a means
for non-hospitalized, but terminally ill, patients to ensure that their
choices regarding end-of-life care are honored by
EMS
personnel.
The new Act repeals Chapter 54A and essentially incorporates the
prior law into Chapter 54.
The
Act also requires the Department of Health to consider, in consultation
with an advisory committee, adoption of a standardized form for a
physicians-order-for-life-sustaining-treatment (POLST), which would
provide for continuity of DNR and other life-sustaining treatment orders
from one treatment setting to another.
Updating
Pennsylvania
's health care decision making laws was
badly overdue. Prior
statutory provisions were in conflict with the realities of medical
practice and the conventions followed by health care providers.
Applicable standards and procedures for health care agents were
not clearly defined and there was no statutory authorization for the
common practice of decision making by an incompetent patient’s family
members.
Despite
its complexity, Act 169 will hopefully enhance patient decision-making
autonomy while providing protection for both patients and health care
providers. It should encourage the preparation of more flexible advance
directives, such as health care powers of attorney, over the problematic
living will. However, it is important for lawyers, health care
providers, and consumers to recognize that the preparation and execution
of an advance directive is merely one step in what needs to be an
advance care planning process. Advance directive documents are
insufficient in themselves to address the long term needs of those who
suffer from age related illness, debility and dementia.11 To be most effective,
planning must involve reflection, discussion, and communication with
family members and health care providers.
1.2
Living Wills
1-.2.1
What is a “Living Will”
“Living
will” laws were an early legislative attempt to devise a method by
which incapacitated individuals could exercise their qualified legal
right to refuse unwanted treatment.
With
a living will, an individual provides treatment instructions regarding
the types of medical treatment and care he or she wants to receive or
refuse at the end of life. This document is typically used by people to
describe the point at which they would no longer desire certain types of
life-prolonging medical treatment, but it may also document an
individual’s desire for continuation of treatment.
These
documents and the related law are very much misunderstood even by the
physicians and other health-care providers who are responsible for their
implementation. Reality and legality are often in conflict.12
In
1992
Pennsylvania
enacted its first statute authorizing
the use of living wills.13
The 1992 law referred to these directives as “declarations.”
But virtually everyone continued to refer to them as “living
wills.” Act 169 uses the
more common term “living will.”
1-2.2
Who may make a “Living Will”14
Under
Act 169, the person signing a living will is called the “principal.”
The principal must be 18 years old, or married, or a high school
graduate or emancipated minor. The principal must also be of “sound
mind.” The Act does not
define the term “sound mind,” which leaves open the difficult issue
of the level of capacity required to execute the document.15
The drafters of the Act
noted that their intention was to rely on the general presumption of
sound mind, absent clear evidence to the contrary. A health care
provider, in good faith, can rely on the presumption of a principal’s
sound mind.16
1-2.3 Execution Requirements17
A
living will must be dated and signed by the principal by signature or
mark. In the alternative, it may be dated and signed by another
individual on behalf of and at the direction of the principal if the
principal is unable to sign, but specifically directs the other
individual to sign for them. A
health care provider and its agent may not sign a living will on behalf
of and at the direction of a principal if the health care provider or
agent provides health care services to the principal.1
A
living will must be witnessed by two individuals, each of whom is 18
years of age or older. A
person who has signed the advance directive on behalf of the principal
may not also be a witness.19
There is no requirement that the document be notarized.
1-2.4
When Does a Living Will become Operative20
The
term “operative” is not defined by Act 169.
Impliedly, the use of the term means that the living will has no
force or effect prior to all of the operative conditions being in
existence. A number of
conditions must exist for a living will to be “operative.”
A
living will becomes operative when:
(1) a copy is provided to the attending
physician; and
(2) the principal is determined by the
attending physician to be incompetent and to have an end-stage medical
condition or to be permanently unconscious.
Thus
a living will is operative only if all three of these conditions exist:
(1) the attending physician has
received a copy of the document.
(2) the attending physician has
determined that the principal is incompetent.
(3)
the attending physician has determined that the principal has an
end-stage medical condition or is permanently unconscious.
The
Act defines “attending physician” as follows:
"'Attending
physician.' The physician who has primary responsibility for the
health care of a principal or patient."20
The
Act defines incompetency as follows:
"'Incompetent.'
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 the 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 behalf; or
(3) unable to communicate that health
care decision to
any
other person.
The
term is intended to permit individuals to be found incompetent to make
some health care decisions, but competent to make others."22
The
Act defines “end-stage medical condition” as follows:
"'End-Stage
Medical Condition.' 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, if both of the following apply:
(1) the patient would benefit from the
treatment, including pallative care.
(2) such treatment would not merely
prolong the process of dying."23
The
Act defines “permanently unconscious” as follows:
“'Permanently
unconscious.' 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."24
Will
most health care providers be cognizant of and follow these exacting
specifications before giving operative effect to a patient’s living
will?25
1-2.5 Duties of Health Care Providers26
The
Act places a number of obligations on physicians and other health care
providers. Health care
providers who attempt to meet these obligations in good faith are
exonerated from criminal, civil, and professional liability and
discipline.
When
a living will has become operative, the attending physician and other
health care providers must either act in accordance with its provisions
or comply with the transfer requirements of the Act.
The transfer requirements are set out in Section 5424 of the Act.27
A
health care provider may not be subject to criminal or civil liability,
discipline for unprofessional conduct or administrative sanctions and
may not be found to have committed an act of unprofessional conduct as a
result of causing or participating in the initiating, continuing,
withholding or withdrawal of life-sustaining treatment or
cardiopulmonary resuscitation from a patient or principal, if the health
care provider believes in good faith that he has followed the patient's
or principal's wishes as expressed in a living will, order or
revocation.28
Health-care
providers are at-risk of assuming too much from the mere existence of a
living will. Assumptions may be unwarranted. If a living will may be
relevant to treatment decisions, providers should carefully review the
actual document. It may include all sorts of counter-intuitive
limitations and contingencies. The document might state that the
principal wants all medical treatments to sustain life for a period of
time after a diagnosis of permanent unconsciousness, but after that
period of time, certain treatments should be withheld or withdrawn. Or,
the document may direct that life supportive treatment should be
withdrawn, but only after a family member agrees.
The
limitations on liability and sanctions apply only if the health care
provider believes in good faith that it is following the instructions in
the living will. It may be difficult for a provider who has not read the
document to claim good faith.
If
an individual does not make a living will, no inference should be drawn
regarding the intent of the individual to consent to or to refuse the
initiation, continuation, withholding or withdrawal of life-sustaining
treatment.29
Any
health care provider to whom a copy of a living will is furnished shall
make it a part of the medical record of the principal and, if unwilling
to comply with the living will, promptly so advise the principal, or the
principal's health care agent or representative.30
The obligation to make the living will a part of the
principal’s medical record, does not require a health care provider to
maintain copies of medical records beyond the requirements otherwise
imposed by applicable law and regulation.31
If
a living will is revoked by the principal, the attending physician or
other health care provider must make the revocation part of the
principal’s medical record.32
If
the attending physician has made a determination that the principal has
an end-stage medical condition or is permanently unconscious, the
attending physician must promptly certify this status in writing.33
An
emergency medical command physician may instruct emergency medical
personnel to withhold or discontinue cardiopulmonary resuscitation for a
principal whose living will has become operative34
although an out-of-hospital DNR order takes priority.35
(See the additional discussion below regarding such DNR orders).
If
a specific direction in a living will is held to be invalid, the
invalidity does not negate other directions in the living will that can
be put into effect without the invalid direction.36
1-2.6 Duration37
A
living will does not become ineffective solely due to the passage of
time. Unless a living will states a time of termination, it is valid
until revoked by the principal, notwithstanding the lapse of time since
its execution.
1-2.7 Revocation38
The
Act indicates a preference for the continuation of life-sustaining
treatment. Thus, a principal
may revoke a living will at any time and in any manner regardless of the
mental or physical condition of the principal. The revocation is
effective upon communication to the attending physician or other health
care provider by the principal or a witness to the revocation.
1-2.8 Validity of non-conforming documents39
Individuals
do not have to update their prior advance directives due to the
enactment of Act 169. However,
they may want to update documents that are inadequate or inconsistent
with their current philosophy and preferences.
Pre-existing
and out of state living wills are valid so long as they do not permit
treatments that are inconsistent with Pennsylvania law.
This means that pre-existing living wills such as the “check
the box” living will form that was included in the 1992 law are valid.
Indeed, the prior form, with all of its deficiencies, can continue to be
used.
1-2.9 Optional Form40
There
is no required form or format for a living will.
A living will may be in any written form which expresses the
wishes of a principal regarding the initiation, continuation,
withholding or withdrawal of life-sustaining treatment.
It may include other specific directions and may designate an
agent to make health care decisions if the principal is incompetent and
has an end-stage medical condition or is permanently unconscious.
The
Act includes an example of a living will.
The example appears as part of the combined form which is set
forth in Subchapter D of the Act. Because
it is included in the statute, it can be anticipated that the example
form will be widely utilized and distributed to the public by
physicians, hospitals, and nursing facilities. On the other hand,
a living will is a very personal document that should be expressive of
the individual’s own autonomous circumstances, values, and goals. The
use of any kind of standard form document runs counter to these
considerations.
Living
wills were the first and remain the best-known and most widely used form
of advance directive. Unfortunately, many consumers and their advisors
fail to appreciate the significant limitations of the living will as a
tool for incapacity planning. Living wills are operative only if the
principal has been declared by the attending physician to be in an
end-stage medical condition or permanently unconscious. Most incompetent
individuals who need decisions regarding health care are not in an
end-state medical condition or permanently unconscious. A living will is
neither operative nor relevant with regard to questions about day-to-day
care, placement, or treatment options, and the many other health
decisions that need to be made for non-end of life patients who lack
capacity.
The
limitations of the living will go beyond its narrow applicability.
The living will begins with a contradictory premise - that a
principal can provide truly informed consent about unknown
treatment alternatives in unknown circumstances at an unknown future
time.41
It is informed consent based on lack of information. The inadequacy of
living wills, and to some extent of advance directives in general, is
described by The President’s Council on Bioethics:
"Advance
instruction directives (or living wills), though valuable to some degree
and in some circumstances, are a limited and flawed instrument for
addressing most of the decisions caregivers must make for those
entrusted to their care.
Living
wills, although much talked about and recommended by many people, are
not a panacea. They address, at most, but a small fraction of the
decisions caregivers must make for incapacitated persons. Even if
everyone executed a living will, and even if the instructions were
followed as written, the big questions of long-term care and ethical
decision-making would not disappear or become readily manageable: there
are too many situations in which following orders is not the best way to
give care, and giving care always requires more in terms of resources,
character, support, and judgment than any legal instrument can possibly
provide. We firmly believe that the American people—both potential
patients and potential caregivers—should not be misled or encouraged
to think otherwise. Moreover, in addition to the practical difficulties
with living wills that we exposed in Chapter 2, the duties of
actual—as opposed to imagined—human caregiving always arise within
concrete situations experienced in the present, not conjured situations
imagined in the past. Precisely because the obligation of caregivers
here and now is always to the patient before them here and now,
instructions written long in advance can rarely be simply authoritative
or dispositive.
To
be sure, a few of the difficulties with living wills could be
ameliorated by improved and more prudent drafting: for example, every
writer of a living will should be asked to consider writing into such a
document—after, of course, discussing it with the relevant parties—a
provision acknowledging that the wishes expressed in the document are
based on incomplete information and explicitly authorizing family
members and clinicians to override the specific instructions if they
judged it would serve the patient’s present welfare to do so. Also,
rather than write blanket exclusions of specific kinds of potential
treatment interventions, advance instructions might explicitly allow for
temporary trials of certain treatments, permitting the patient’s
caregivers to see if the treatments might actually be beneficial without
creating a situation in which the treatment cannot be easily stopped.
But even such improvements do not address the fundamental limitations
and shortcomings of advance instruction directives, which can never
replace prudent judgment by devoted caregivers about what a patient now
needs. Ethics committees, drafters of professional guidelines,
policymakers, and legislators at both the state and federal levels
should address these failings and search for more practical and
responsible alternatives."42
1-3
Health Care Agents
1-3.1 Overview - Health Care Power of Attorney.
As
a result of the limitations of the living will, most commentators
recommend that individuals authorize a trusted agent to make decisions
for them in the event of incapacity.
As noted by the President’s Council on Bioethics:
"Advance
proxy directives are much more valuable [than living wills] and should
be encouraged.
Instead
of attempting to specify what should be done, advance proxy directives
specify who should make crucial decisions on our behalf. These
instruments ratify our fitting desire to be placed in the hands of
loving caregivers whom we trust with our well-being when we can no
longer act to promote it ourselves. Naming of proxy decisionmakers
provides clear identification of who shoulders responsibility to act for
the patient and makes it clear to physicians and others with whom they
must deal. Such knowledge makes it much more likely that there will be
the desirable discussions between family and professional caregivers at
all important junctures of treatment and care."43
Act
169 acknowledges the importance of proxy decision making by providing
for both health care agents44
and representatives (if an agent is unavailable).
A
health care power of attorney appoints a person chosen by the principal
to make decisions whenever the principal lacks capacity.
By using a health-care power of attorney, the principal can
authorize an agent to make health-care decisions whenever the principal
is unable to do so. The agent can act regardless of whether the
principal is terminally ill or permanently unconscious. Guidance as to
the principal’s philosophy regarding end-of-life care and other
situations that may arise can be included in the document.
The
appointment of an agent combined in one document with living will end-of
life guidance is sometimes referred to as a “comprehensive health care
advance directive.” “Because
it is more comprehensive and flexible than the other available planning
tools, a comprehensive health-care advance directive is the preferred
legal tool for planning these types of decisions.”45
The
example form included in Act 169 is a comprehensive health care advance
directive.
The
appointment of an informed and forceful agent can help to ensure that
the principal will receive appropriate health care, be treated with
dignity and respect, be able to limit pain, and will avoid treatments
and interventions that are not desired. A health care power of attorney
can express the principal’s general values and philosophy,
provide specific instructions regarding care and potential treatment
modalities, and empower the agent to serve as health-care advocate for
the principal.
The
agent can be a trusted family member or friend who is close to the
principal and understands the principal’s values. The agent can be
empowered to advocate for the application of those values to whatever
situation may arise. The agent can review the circumstances, consult
with the health-care providers, consider the prognosis, and then apply
the principal’s values as set forth in the document, or as otherwise
known to the agent, in making decisions.
The
health-care power of attorney traditionally has been drafted as a
“springing” agency that is effective only when the principal has
been determined to be unable to make health-care decisions. However,
Pennsylvania
, unlike some states, does not prohibit a
principal from creating an immediately effective document. This is
fortunate. As a result of the HIPAA privacy rules, discussed hereafter,46 it may be desirable to
authorize the agent to receive protected health information even though
the principal has not been determined to be incapable of making
health-care decisions.
The
appointment of a health-care agent can be combined with the appointment
of an agent for financial matters in one comprehensive power of
attorney, or financial and health-care issues can be covered in separate
documents.
Act
169 provides extensive statutory guidance for health care decisions made
by health care agents and health care representatives.
It directs the Department of Health to supervise implementation
by providers.47
While
the comprehensive advance health care directive is the preferred
planning tool, the principal can execute a separate living will. If a
comprehensive document is used, it should contain appropriate end-of
life guidance from the principal and conform to the requirements for
end-of life decision making set forth in the Act.
To facilitate the use of comprehensive advance health care
directives, the execution requirements for health care powers of
attorney mirror those for the living will.
1-3.2 Execution Requirements.48
The
execution requirements for a health-care power of attorney are
essentially the same as those for a living will under section 5442
(discussed above). They differ markedly from the requirements for
non-health care powers of attorney under Chapter 56.
When combining financial and health-care agency in one document,
the lawyer should be careful to observe the execution requirements of
both Chapter 54 and Chapter 56.
The
principal must be of “sound mind.” The principal must be 18 years
old, or married, or be a high school graduate or emancipated minor.
A health care power of attorney must be dated and signed by the
principal by signature or mark or by another individual on behalf of and
at the direction of the principal if the principal is unable to sign,
but specifically directs another individual to sign the document.
A health care provider and its agent may not sign a health care
power of attorney on behalf of and at the direction of a principal if
the health care provider or its agent provides health care services to
the principal.
A
health care power of attorney must be witnessed by two individuals, each
of whom is 18 years of age or older. A person who has signed the advance
directive on behalf of the principal may not also be a witness. There is
no requirement that the document be notarized.
1-3.3 Mandatory and Optional Provisions49
A
health-care power of attorney is a flexible document with few mandatory
requirements. It can be
adapted to the principal’s unique circumstances and preferences.
The document may be as simple as merely identifying the principal
and agent and authorizing the agent to make heath care decisions on
behalf of the principal. Or it may be as expansive as the principal
desires and contain any other provisions the principal may desire
regarding the implementation of health care decisions and related
actions by the agent.
Here
are some examples of the types of provisions that the document may
include:
(1) Describe any limitations that the
principal imposes upon the authority of the health care agent.
(2) Indicate the intent of the
principal regarding the initiation, continuation, withholding or
withdrawal of life sustaining treatment.
(3) Indicate whether the principal
wants tube feeding or any other artificial or invasive form of nutrition
or hydration.
(4) Disqualify an individual from acting as a health care
representative, prohibit the appointment of a health care representative
or provide for an order of priority of appointment of a health care
representative pursuant to section 5461(d) (relating to decisions by
health care representative).
(5) Nominate a guardian of the person
of the principal as provided in section 5460 (relating to relation of
health care agent to court-appointed guardian and other agents).
(6) Contain other provisions as the
principal may specify regarding the implementation of health care
decisions and related actions by the health care agent or health care
representative.
(7) Request that the health care agent
or health care representative exercise his sole and absolute discretion
to consult the principal's relative, cleric or physician should the
health care agent or health care representative be uncertain of the
principal's wishes or best interests.
1-3.4
When Operative50
Unless
the document specifies otherwise, a health-care power of attorney is a
springing power of attorney. The
agency only becomes operative when two events have occurred:
(1) a copy is provided to the attending
physician; and
(2) the attending physician determines
that the principal is incompetent.
These
default rules can create a trap for the unwary. Under federal health
care privacy laws a health care agent is the personal representative of
the principal and has access to the principal’s health information.51
However, with a springing power of attorney, the agent may not
gain the status of personal representative until the incompetency
determination has been made by the attending physician. But, how does an
as yet inoperative agent obtain the information needed to make the
health-care power of attorney operative?
To
resolve this issue, the power of attorney can specify that it is
immediately effective for the limited purpose of determining the
principal’s capacity to make health care decisions and that the agent
is authorized to access information concerning the principal’s
capacity to make health-care decisions.
In addition, many individuals want certain family members to have
immediate access to their protected health information. This broader
authorization can be made immediately effective.
[Practice Tip] Language similar to the
following may be included where the principal wants to allow both the
initial agent and alternate agents (e.g. various children) to have
access to the principal’s protected health information.
In
addition to the other powers granted by this document, my Agent shall
have the full authority to serve as my personal representative for all
purposes of the Health Insurance Portability and Accountability Act of
1996, (Pub. L. 104-191), 45 CFR Section 160 through 164.
I consent to and direct covered entities to provide my protected
health information to all persons designated in this document as my
Primary Agent and, in addition, to all persons designated in this
document as a Successor Agent or serving
as Substitute Agent. The
authorization and consent to disclosure set forth in this paragraph
shall apply whether or not I am competent to make or communicate health
care decisions for myself and whether or not a copy of this Health Care
Power of Attorney has been provided to my attending physician.
The Act specifies that a health-care power of attorney does not become
“stale” with the passage of time.
Unless the health-care power of attorney states a time of
termination, it is valid until revoked, notwithstanding the lapse of
time since its execution.52
However, clients should be counseled to reconsider and update
their advance directives periodically, especially in the event of the
occurrence of one of the 5 D’s:
(1) You reach a new DECADE
(2) You experience a DEATH of family or
friend
(3) You DIVORCE
(4) You receive a new and significant
DIAGNOSIS
(5) You have a significant DECLINE in your condition as measured
by Activities of Daily Living or cognition.53
1-3.5
Appointment of Health Care Agents54
The
principal may name multiple and/or successor agents. Co-agents must act
jointly and are not authorized to act independently unless the document
expressly provides otherwise.
Consider
naming an alternate agent if the initial agent is unavailable for any
reason. If multiple agents
are named, include a mechanism for resolving disagreements.
The
Act attempts to reduce dependency and limit conflicts of interest by
specifying that health care providers may not be appointed as agent for
the principal.
Who
may not be appointed health care agent. --Unless related to the
principal by blood, marriage or adoption, a health care agent of the
principal may not be any of the following:
(1) The principal's attending physician
or other health care provider.
(2) An owner, operator or employee of a
health care provider in which the principal is receiving care.55
These
limitations appear to be mandatory and apparently cannot be waived by
the principal. Thus, a
patient may not validly appoint his or her physician as agent unless
they are related by blood, marriage or adoption.
1-3.6 Authority of Health Care
Agent56
1-3.6.1 Extent of Authority
By
default, a health-care agent’s authority is nearly extensive as the
principal’s would be, if the principal were competent.
In
a key provision, Act 169 specifies that, except as limited in the
document or by the Act’s restrictions in regard to life-sustaining
treatment, a health care agent has “the authority to make any health
care decision and to exercise any right and power regarding the
principal's care, custody and health care treatment that the principal
could have made and exercised.”57
The
implications of this broad authority should not be ignored. For example,
it appears that an agent may be authorized to decline health care
necessary to preserve life even though the principal has neither an
end-stage medical condition nor is permanently unconscious.58
The
existence of such potentially sweeping authority makes it crucial to
personalize the document to reflect any limitations that the principal
wants to place on the agent’s powers.
The
agent’s authority can carry over to some post-mortem issues. “The
health care agent's authority may59
extend beyond the principal's death to make anatomical gifts, dispose of
the remains and consent to autopsies.”60
1-3.6.2 The Agent’s
Decision-Making Process61
1-3.6.2.1 Responsibilities of the Agent
The
Act sets out detailed requirements for the decision-making process to be
followed by health care agents (and representatives).
The
agent is required to consult with health care providers to obtain
information. Special
informational requirements apply to life-sustaining treatment decisions.62
After review of the information, decisions are to be made based
upon the following criteria in this order of priority:
(1)
In accordance with the agent's understanding and interpretation
of the instructions (including clear verbal instructions) given by the
principal;
(2)
In the absence of instructions, in conformity with the agent's
assessment of the principal's preferences and values, including
religious and moral beliefs;
(3)
In the absence of knowledge of (1) and (2), in accordance with
the agent's assessment of the principal's best interests.
The
Act requires the agent to proceed through the following decision-making
sequence:
(1)
The health care agent shall gather information on the principal's
prognosis and acceptable medical alternatives regarding diagnosis,
treatments and supportive care.
(2)
In the case for procedures for which informed consent is required under
Section 504 of the Act of MARCH 20, 2002 (P.L. 154, NO.13), known as the
medical care availability and reduction of error (MCARE) Act,63 the information shall
include the information required to be disclosed under that Act.
(3)
In the case of health care decisions regarding end-of life of a patient
with an end-stage medical condition, the information shall distinguish
between curative alternatives, palliative alternatives and alternatives
which will merely serve to prolong the process of dying. The information
shall also distinguish between the principal's end-stage medical
condition and any other concurrent disease, illness or physical, mental,
cognitive or intellectual condition that predated the principal's
end-stage medical condition.
(4)
After consultation with health care providers and consideration of the
information obtained in accordance with paragraphs (1), (2) and (3), the
health care agent shall make health care decisions in accordance with
the health care Agent's understanding and interpretation of the
instructions given by the principal, at a time when the principal had a
capacity to understand, make and communicate health care decisions.
Instructions include an advance health care directive made by the
principal and any clear written or verbal directions that cover the
situation presented.
(5)
(I) In the absence of instruction, the health care agent shall
make health care decisions that conform to the health care agent's
assessment of the principal's preferences and values, including
religious and moral beliefs.
(II) If the health care agent does not
know enough about the principal's instructions, preferences and values
to decide accordingly, the health care agent shall take into account
what the agent knows of the principal's instructions, preferences and
values, including religious and moral beliefs, and the health care
agent's assessment of the principal's best interests, taking into
consideration of the following goals and considerations:
