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Complicated New Advance Directive Law Requires Study by Health Care Professionals and Lawyers

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Written By: Attorney Jeffrey A. Marshall, CELA*

Who will make life and death decisions for you?

Advance health care directives, such as living wills and health care powers of attorney, allow us to maintain some control over who will someday make health treatment decisions for us.  They can provide a voice for us when we cannot speak for ourselves.

For many years, Pennsylvania was criticized for having out-of-date laws regarding advance directives, a deficiency that contributes to poor end-of life care.  Finally, the problem has been addressed.  Pennsylvania ‘s long-awaited new law governing the use of advance health care directives becomes effective on January 29, 2007 .

The new law, Act 169, is lengthy and complex.  It creates opportunities for effective advance health care planning but creates traps as well.  It is particularly important that health care providers and lawyers study the new law.  To assist these professionals, Marshall, Parker & Associates has put together a comprehensive guide to the new law.  The Guide is available on the Marshall , Parker & Associates’ website at http://www.paelderlaw.com/PA_Attorneys_Guide_to_AD.html.

Act 169 should make an authorized medical proxy decision maker available for most adults.

The Act authorizes a qualified individual, referred to as the “principal,” to appoint a surrogate decision maker (“agent”). The agent can be authorized to make any health-care decision, including those concerning end-of-life treatment.  The law provides a list of default decision makers for persons who lack an available agent.

Act 169 is sweeping in its scope. Some key aspects of the new law include:

(1) Medical decision making by family members and close friends (representatives) is authorized for incompetent adults who have no appointed agent;

(2) Agents and representatives are given the authority to make almost any decision a competent patient could make;

(3) The decision making process to be followed by agents and representatives is set out in detail; 

(4) An example advance directive is included.  This optional form emphasizes the document as only one step in a planning process that should include frank discussions with family members and health care providers; 

(5) Prior living wills and health care powers of attorney remain valid;

(6) Responsibilities are placed on physicians and other health care providers;

(7) The Department of Health is directed to provide oversight to ensure the law’s surrogate decision making process is followed.

Act 169 was the result of years of discussion, lobbying, and negotiation by many interest groups. The Act shows the effects of its collective parentage – it is lengthy and intricate and occasionally inconsistent. Unfortunately, its complexity increases the potential that its provisions will be either misunderstood or disregarded by lawyers and health care providers.

What You Should Do Now

Consumers should understand that their prior living wills and powers of attorney remain valid. Nevertheless, this may be a good time to re-evaluate your planning documents, especially if you have only a living will.  (See the discussion of the inadequacy of living wills in the Guide).  Most people should have a comprehensive advance directive that combines end-of-life instructions with a health care power of attorney. (Note to Marshall, Parker & Associates clients: Virtually all clients who have had their advance directives prepared by Marshall, Parker & Associates over the last 15 years already have the kind of comprehensive advance directive which is encouraged by the new law.)

Advance directives should be reviewed and updated as your circumstances and preferences change. Your choice of the person to serve as your agent is of particular importance. Consumers may want to review Section 3-1.2.1 of the Guide for some tips on choosing the right agent.

Lawyers should study the provisions of the new law to make certain that the Advance Directives they prepare meet its requirements.  They should also counsel their clients as to the importance of engaging in an ongoing advance planning process.  The preparation of the document is just one step in the process.

Health Care Providers should study the new law and be cognizant of the requirements it places on them.  These requirements are outlined in Section 1.5 of the Guide (1-5 Duties and Protection of Health Care Providers).