If you have a living will or health care power of attorney, can a court overrule your instructions after you become incapacitated? That question was explored recently in a Pennsylvania appeals court case, In Re Border, 2013 PA Super 94 (PA Superior Court, April 23, 2013).
Russell Border was a 62 year old resident of the Golden Living Nursing facility in Berks County Pennsylvania. In 2007 Mr. Border had signed a health care power of attorney and living will which gave instructions for his end of life care and named his daughter Renee as his chosen health care agent.
In 2010 the county Office of Aging filed a petition to have a guardian appointed for Mr. Border. After a hearing on April 14, 2010, the Berks County Orphans’ Court entered an order declaring that Mr. Border was incapacitated and appointing Renee as guardian of his person. The court appointed a lawyer, Sharon Gray, to serve as guardian for his estate. (The guardian of the person is responsible for an individual’s care; the guardian of the estate is responsible for his finances). The court also expressly revoked “any other existing general power of attorney, limited power of attorney and/or health care power of attorney” previously executed by Mr. Border.
Two weeks later the Office of Aging was back in court seeking an amended order. It was concerned that Renee was planning to take her father home, which the Aging Office felt was not in his best interest. The court issued an amended order which removed Renee and directed that attorney Gray serve both as guardian of the person and the estate of Mr. Border. The order repeated the prior language revoking previously executed powers of attorney.
Lawyer Gray acted as guardian of Mr. Border’s person and estate from April 28, 2010 until March 12, 2012. In February 2012 Mr. Border was admitted to Reading Hospital and Medical Center and placed on a mechanical ventilator and other forms of life sustaining treatment. Hospital staff advised attorney Gray, as guardian, that Mr. Borders’ condition was terminal. They recommended removal of life supports. Mr. Border’s family members, including Renee agreed with the Hospital staff.
But Ms. Gray refused to authorize the termination of life supports. She based her refusal on discussions she had with Mr. Border after he was declared to be incapacitated, and the provisions in the living will section of the advance directive he had signed in 2007.
The Living Will Instructions
In 2007 Mr. Border completed a Veterans Administration form Advance Directive, which included both a durable power of attorney for health care and a living will. In the living will section of the advance directive, Mr. Border was given the opportunity to state his preferences for life-sustaining treatments in certain situations. He indicated that he would want to have life-sustaining treatments under all categories of situations listed in the document.
For example, he directed that he would want to life-sustaining treatments even if he were in a persistent vegetative state and there was little or no chance of recovery, if he had pain that could not be relieved, or a condition that would cause him to die.
In a following section of the living will entitled “HOW STRICTLY YOU WANT YOUR PREFERENCES FOLLOWED” Mr. Border indicated his agreement with the following statement:
I want my preferences, expressed above in this Living Will, to serve as a general guide. I understand that in some situations the person making decisions for me may decide something different from the preferences I express above, if they think it is in my best interest.
The Court removes the Guardian
Faced with the guardian’s refusal to authorize termination of life-supports the Hospital filed an emergency petition seeking her removal. On March 12, 2012 the lower court issued an order removing lawyer Gray as guardian, and appointing Mr. Border’s brother as her replacement. The order authorized the new guardian to decline any life-supporting medical treatments and remove Mr. Border from the ventilator. The brother thereupon authorized the removal of life supports and Mr. Border died later that day.
Even though Mr. Border was deceased, Ms. Gray carried through with an appeal of the lower court’s order. And the Superior Court (an intermediate appellate court) decided to hear the technically moot appeal because the issues “are of great public importance, are capable of repetition, and are likely to evade appellate review.
The Lower Court did not have the Authority to Revoke Mr. Border’s Health Care Directive
As part of its April 14, 2010 order the orphans’ court had revoked the advance health care directive Mr. Border had signed in 2007. As a result, during its 2012 proceedings the orphans’ court considered the 2007 directive only as persuasive evidence of Mr. Border’s desires, but not as a binding legal document.
On appeal, Sharon Gray argued that the lower court had no authority to revoke the advance directive when it appointed a guardian. The Superior Court agrees. The lower court’s action in revoking the directive was inconsistent with the Pennsylvania statute, the Health Care Agents and Representatives Act, 20 Pa.C.S.A. § 5421 et seq.
The appeals court initially notes that the revocation portion of the lower court’s orders addressed only powers of attorney, not living wills.
A “living will,” however, is “[a] writing made in accordance with [the Act] that expresses a principal’s wishes and instructions for health care and health care directions when the principal is determined to be incompetent and has an end-stage medical condition or is permanently unconscious.” Id. In other words, a health care power of attorney appoints an individual to make health care decisions on a principal’s behalf, while a living will suggests what the principal wants those decisions to be.
Thus, by the terms of its order, the lower court attempted to revoke only Mr. Border’s powers of attorney and not his living will instructions.
But even if the lower court had properly recognized the distinction between a living will and a health care powers of attorney, it did not have the authority to revoke Mr. Border’s health care power of attorney.
Specifically, under Section 5454 of the Act, “[u]nless the health care power of attorney states a time of termination, it is valid until revoked by the principal or the principal’s guardian of the person, notwithstanding the lapse of time since its execution.” 20 Pa.C.S.A. § 5454(d). Therefore, pursuant to the clear terms of Section 5454, unless the health care power of attorney states a time of termination (which Mr. Border’s did not), it is valid until revoked by the principal (Mr. Border), or the principal’s guardian of the person (Appellant). Id. Nothing within Section 5454(d) gave the orphans’ court authority to revoke Mr. Border’s health care power of attorney which named his daughter as his health care agent. Furthermore, we note that under the terms of Section 5454, because a guardian has the authority to revoke a power of attorney, the statute recognizes that the power of attorney remains valid beyond a principal’s declaration of incapacity and the appointment of a guardian.
Health care powers of attorney remain binding legal documents even beyond the incapacity of the maker and cannot be revoked by a court. However, as noted above, the Pennsylvania statute does give an appointed guardian of the person the authority to revoke a principal’s health care power of attorney. In effect, a court can revoke a health care power by appointing a guardian who the court knows will take that action.
Note that the Superior Court opinion does not discuss whether a guardian can revoke a principal’s living will. The section of the statute (Section 5444) that provides for revocation of living wills does not mention any such authority for a guardian.
Thus, it appears that while the guardian may revoke a health care power of attorney, this authority does not extend to revoking the principal’s living will instructions. This distinction makes some sense – both guardian and health care agents are potential implementers of health decisions for the principal, and could conflict. But instructions issued in the past are static directions to be interpreted, but not subject to change or revocation, by whoever is the implementer.
Did the Orphans’ Court have the Authority to authorize the Guardian to terminate life-support?
Because Mr. Border had a legally binding advance directive the parties and court should have applied the provisions of the directive to guide them in their decision making process.
Mr. Border’s 2007 health directive named his daughter Renee as his health agent and that appointment was still effective in March 2012. Although she didn’t know it, she had the authority to make health care decisions for her father, subject to being overruled by Ms. Gray, the guardian of the person.
In this case the decision to terminate life-supports was ultimately made by a newly appointed guardian of the person. Was the lower court’s replacement of Ms. Gray as guardian within the court’s discretion? The Superior Court notes that the orphans court had the authority to remove her as guardian if she was not acting in the incapacitated person’s best interest.
In this case Hospital personnel believed that sustaining Mr. Border’s treatment was contrary to his medical diagnosis and prognosis. And Mr. Border’s adult family collectively believed that he would not have wanted life-sustaining treatment in his condition. On the other hand, Ms. Gray cited conversations she had with Mr. Border in which he declared his desire to live. And his living will instructions stated that he preferred to receive life-sustaining treatment in various end of life situations.
The lower court considered the evidence and determined that Ms. Gray’s refusal to authorize termination of life supports was not in Mr. Border’s best interest. On this record, the Superior Court finds no abuse of discretion in that decision.
Somewhat curiously, the Superior Court states that Ms. Gray was not acting in Mr. Border’s best interest because she was ignoring the “general guide” provision in his will that gave discretion to the decision maker. The court’s emphasis on the general guide section of the living will is worrisome. Is the implication that the lower court’s removal of Ms. Gray as guardian would have been an abuse of discretion if Mr. Border’s living will had not included the general guide statement? Just how binding are living will instructions where no discretion is included?
Lessons from In re Border
I do not know whether Sharon Gray will appeal the Superior Court’s decision to the Pennsylvania Supreme Court, or whether the high court would agree to hear the case. In any event, this sad case illustrates the difficulty of applying advance directives to health care decision making at the end of life.
Mr. Border planned ahead. He created an advance directive that gave instructions as to his care preferences and named his choice for a surrogate decision maker. He gave discretion to his chosen decision maker to vary from his stated preferences if she determined it to be in his best interests. But due to intervention from a no doubt well-intentioned protective system (the Office of Aging and orphans court) his chosen decision maker was not able to make decisions for him when the time came.
Sometimes events just overtake advance planning. Even if you have planned ahead with an advance directive, and your family is aware of your preferences, your end of life decisions may end up being made with the help of a Judge.
Although a court does not have the direct authority to revoke an incapacitated person’s health care power of attorney, it does have the power to appoint a guardian. And the guardian it appoints does have the power to revoke the health care power of attorney. It’s a two-step process.
The case also perhaps suggest a danger in “check the box” form living wills. Did Mr. Border’s elections of “yes” to life-sustaining treatment under various dire situations reflect a considered and informed choice or merely a quick flick of a pen?
Would the decision in this case have been different if Mr. Border had made the following selection in the general guide section of his living will “I want my preferences, as expressed in this Living Will, to be followed strictly, even if the person making decisions for me thinks that this isn’t in my best interests.”
How much weight should be given to potentially ill-considered check the box selections on a standard form advance directive? Pennsylvania law does not require that you give any specific treatment instructions in your advance directive.
Be careful what you wish for when you prepare your advance directive. You can complete a form in a hurry. Those boxes on the form are well-intentioned and easy to check off without much thought. But they can be binding in the future. And it is very difficult to imagine today the future circumstances you may encounter that might become intolerable.
For More Information about the Pennsylvania law on Living Wills and Health Care Powers of Attorney see the following articles on the Marshall, Parker and Weber website:
Understanding Act 169- A Professional’s Guide to Living Wills and Advance Health Care Powers of Attorney in Pennsylvania
What’s the Difference between a Living Will and a Health Care Power of Attorney