What is Medicare Part D?

If you are over 65 and retired you probably have drug coverage through Medicare’s prescription drug insurance program. It’s referred to as “Part D” and is offered solely through private insurance plans that contract with Medicare. Medicare will approve a contract only if the plan meets with certain minimum requirements.

Part D is a voluntary program and enrolling in it is up to you (unless you are low income and receive an “Extra Help” subsidy). You must take the initiative to enroll during certain times called enrollment periods.

If you have Original Medicare you can enroll in a stand-alone Part D plan. If you have coverage through a Medicare Health Plan (also called a “Part C” or “Advantage Plan”) your part D coverage may be bundled together with the plan’s other benefits. In any event, Part D works the same way whether bundled within an Advantage Plan or purchased as a stand-alone.

What are Formularies and Tiers?

Each Medicare Prescription Drug Plan has its own list of covered drugs (called a “formulary”). The plans differ as to their formularies, as well as their premiums, costs, and pharmacy networks. Each plan can change each year in any of these areas, so you need to review your plan each year. There are dozens of Medicare Part D plans from which you can choose. In Pennsylvania in 2013 you can choose from over 30 stand-alone Part D plans.

Most Part D plans impose various forms of restrictions within their formularies. With some drugs you must get prior authorization; plans may require step therapy; and plans may impose quantity limits on your medications.

Many Medicare drug plans place drugs into different “tiers” within their formularies. Tiers are co-payment categories. Drugs in each tier have a different cost to you. Drugs in Tier 1 have the lowest co-payments. The plan will impose a higher co-payment (often $30-$50 in 2013) on Tier 2 drugs. Tier 3 drugs have the highest co-payments (often $60 to over $100 for a thirty day supply). A few drugs may be placed in a “specialty” tier and be very expensive.

Tips on Choosing a Medicare Drug Plan

When choosing a Part D plan you need to go beyond a simple determination of whether the prescription drugs you will be taking are included in the plan’s formulary. You also need to find out into which tier your drug has been placed by the plan and the amount of your co-pay responsibility. A drug in a lower tier will generally cost you much less than a drug in a higher tier.(Note, that in some cases, if your drug is on a higher tier and your prescriber thinks you need that drug instead of a similar drug on a lower tier, you or your prescriber can ask your plan for an exception to get a lower copayment.)

When you are choosing between Part D plans, make a list of all of the non-generic prescription medications you expect to be taking during the upcoming year. Then check the drugs against plan’s tiers and co-payment requirements. Try to determine what will be the total cost to you over the year of a plan’s premiums + deductibles + co-pays.

Use the Medicare Plan Finder

While this sounds complicated, the Medicare website can simplify your investigation and help you make a good decision.  Visit the Medicare Plan finder to search for Medicare drug plans in your location. The link is:  https://medicare.gov/find-a-plan/questions/home.aspx.

The Plan finder allows you to enter your list of prescription drugs, your preferred pharmacies and other information related to your prescriptions. After you complete the intake information, the Plan finder will provide you with a personalized list of plans organized in order of lowest estimated cost. This greatly simplifies the process of determining which plan may best meet your needs. The Plan finder deals with the complexities of formularies and tiers and co-payments for you.

The Plan finder will also provide you with a rating for each drug plan. Medicare uses information from satisfaction surveys and other sources to give overall performance star ratings to plans. Each plan is given a rating between 1 and 5 stars. A 5 star rating means “excellent” for quality and performance. The ratings are updated each fall and can change each year.

Be aware, however, that drug plans can (and do) change their formularies and tiers and co-pays and premiums each year. And your personal medication needs may change over time. This means that it’s best to review your plan choice annually. The Medicare Plan finder makes this task much less formidable.

Switching Drug Plans

If you decide to switch plans, Medicare has relatively liberal rules. You can switch to a different drug plan during any enrollment period. An open enrollment period takes place this year from October 15–December 7.  In addition, you can switch to a 5-star rated drug plan during most of the year: from December 8 to November 30^th.   And a special enrollment period may be available to you if you move out of your existing plan’s service area or enter or leave a long term care facility.

Like much of health care in the United States, prescription drugs are expensive and your choices are complicated. Fortunately, Medicare is able to help. Using the Plan finder should take an hour or less and should provide you with the information you need. If you need more help, additional assistance is available to you through your State Health Insurance Assistance Program.

Further Information

Your Guide to Medicare Prescription Drug Coverage, (Center for Medicare and Medicaid Services)

Part D / Prescription Drug Benefits, (Center for Medicare Advocacy)

MedPac Status Report to Congress on Part D (March 2012)

Links to Free Medicare Related Publications by the Federal Government

2013 Medicare Part D Prescription Drug Plans: Overview by State

Your State Health Insurance Assistance Program can provide you with personal assistance.

It’s no wonder then that so many grandparents want to leave an inheritance for their grandchildren. Often the major portion of the grandparent’s estate is left to his or her children, but a small inheritance is designated for each grandchild.

Remembering our grandchildren in our estate plan can be a wonderful gesture of love. But be careful if you have a grandchild with special needs. Even a small inheritance can create big problems for them.

Take the case of a client I’ll call Mary. When I met with Mary she brought her old will with her. In that will, she left $25,000 outright to her grand-daughter Emily. I asked Mary about Emily. She explained that she was always especially close with her grand-daughter, who she said had “a good heart.” Emily was age 32 and had some problems in her life. Emily was bi-polar. While she was usually good about taking her medications, every once in a while she had a problem and was hospitalized.

Emily was unable to work. She received a monthly benefit from SSI and her health care was covered by Medicaid. Although she was unable to work, Emily was able to live on her own in subsidized housing.

Mary figured that Emily could use a little money. And Mary wanted Emily to know that she loved her deeply – that was the main purpose for the $25,000 inheritance.

I had to explain to Mary that her wonderful loving gesture was likely to cause Emily some problems. In order to keep her SSI and Medicaid benefits Emily is allowed to have no more than $2,000 in the bank. The $25,000 inheritance could mean that Emily would lose these important benefits.

But it wasn’t necessary for Emily to be disinherited. Mary could still remember Emily and leave her an inheritance – she just needed to leave the gift in a protected manner that wouldn’t disturb Emily’s benefits. A special needs trust could be used to do this.

If the $25,000 inheritance was left to a special needs trust, the money would be held by a third party who would use it to provide benefits for Emily in a manner that would not cause her to lose her public benefits. There were several ways that Mary could implement this kind of planning.

-       Mary could create a special needs trust in her will. Someone who Mary trusted to care for Emily’s interests (probably a parent or sibling) would be named as trustee to manage the inheritance and use it for Emily’s needs.

-       The inheritance could be contributed to a pooled trust account set up for Emily. Under this option, the money would be professionally managed by a non-profit entity and used to fund Emily’s needs without disturbing her benefits.

-       The inheritance could be contributed to a special needs trust for Emily that was set up by Emily’s parents, or some other third party.

We called Mary’s daughter (Emily’s mother) to ask if she had done any planning for Emily. We found out that Emily’s parents had already set up a special needs trust for her. We ended up designating that trust as the recipient of the inheritance from Mary.

When Mary signed her will, she gave a big sigh. I asked what that was about. She told me she had been worrying for years about the money she wanted to leave Emily. She hadn’t been thinking about SSI and Medicaid. Instead, she had been concerned that if she had $25,000 in the bank, someone might take advantage of Emily, who was the “sweetest girl in the world,” Now, she didn’t have to worry about this anymore. Putting the money in trust would protect it for more than just public benefit reasons.

When Mary left my office she gave me a big hug. “Thank you Mr. Marshall,” she said. “Thank you so much.”

After she left, I felt really good. Some days it’s just great being an elder law attorney.

For More Information

What are “Special Needs Trusts”

Planning for a Special Needs Grandchild

Federal Court voids Restrictions on Pooled Trusts

Pooled Trusts operating in Pennsylvania include:

A standard monthly shelter allowance of $582 a month will be built into the minimum MMNA effective July 1. If certain housing-related expenses of the community spouse exceed this standard allowance the MMNA is increased by the amount of these excess shelter costs. This is the called the “excess shelter allowance.”

These minimum income allowance rules are part of the federally mandated “spousal impoverishment” protections that were enacted in 1988 to avoid the total impoverishment of spouses of nursing home residents.

Further Information:

Department of Public Welfare Policy Clarification PMN-16337-468 (submitted 05/13)

Lakeysha Walton was comatose when she was admitted to Kindred Hospital in Philadelphia. A friend signed the original admission agreement. Two weeks later the hospital asked Lakeysha’s mother, Nancy Walton, to sign additional paperwork regarding her daughter’s admission. That added paperwork included a Voluntary Alternative Dispute Resolution Agreement (“ADR agreement”) along with various other hospital forms.

Nancy signed the forms including the ADR agreement which required that claims against the facility be submitted to arbitration.

Lakeysha had never given her mother power of attorney or any other authority to act on her behalf.

Two years later, Lakeysha filed a court suit against Kindred Hospital. Kindred objected to the suit and claimed that the case should go to arbitration because of the ADR agreement. Kindred argued that Nancy was acting as Lakeysha’s agent when she signed the agreement to arbitrate disputes.

The trial court rejected Kindred’s objection and held that the ADR agreement was unenforceable under these facts. On appeal, the Pennsylvania Superior Court (an intermediate appellate court) agrees and affirms the trial court’s ruling.

The Ways an Agency Relationship can be Established

The Superior Court discusses four different legal grounds under which Nancy could be deemed to have been acting as agent for her daughter:

1.   Express authority exists where the principal deliberately and specifically grants authority to the agent;

2.   Implied authority exists in situations where the agent’s actions are proper, usual and necessary to carry out express agency;

3.   Apparent agency exists where the principal by word or conduct causes people with whom the alleged agent deals to believe that the principal has granted the agent authority to act;

4.   Authority by estoppel occurs when the principal fails to take reasonable steps to disavow the third party of their belief that the purported agent was authorized to act.

The Court found that none of these grounds were present given the facts in this case. It noted that the party asserting the existence of an agency relationship bears the burden of proving it by a fair preponderance of the evidence. “The relationship of agency cannot be inferred from mere relationship or family ties unattended by conditions, acts or conduct clearly implying an agency.” Sidle v. Kaufman, 29A.2d77, 81 (Pa. 1942). Thus, the ADR agreement was unenforceable.

Powers of Attorney and Health Care Representatives

While the patient/plaintiff prevailed on these facts, the Walton decision raises some concerns for lawyers drafting powers of attorney for clients who want to avoid arbitration agreements.

Implications of Health Care Agents and Representatives Act

Nancy Walton may have been the default health care representative for her daughter under the Pennsylvania Health Care Agents and Representatives Act. Section 5461 of that statute provides that a default health care representative (spouse, adult child, parent, etc.) may make health care decisions for an incompetent individual.

Did the mother have authority to enter into the ADR agreement in her capacity as her daughter’s health care representative?

Section 5461(c) of Pennsylvania’s Health Care Agents and Representatives Act provides that a representative has the same authority as an agent as set out in Section 5456.  

§5461(c) Extent of authority of health care representative.–Except as set forth in section 5462(c)(1) (relating to duties of attending physician and health care provider), the authority and the decision-making process of a health care representative shall be the same as provided for a health care agent in section 5456 (relating to authority of health care agent) and 5460(c) (relating to relation of health care agent to court-appointed guardian and other agents). 

§5456 (a) Extent of authority.–Except as expressly provided otherwise in a health care power of attorney and subject to subsection (b) and section 5460 (relating to relation of health care agent to court-appointed guardian and other agents),a health care agent shall have 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. The health care agent’s authority may extend beyond the principal’s death to make anatomical gifts, dispose of the remains and consent to autopsies. [Emphasis added]

Is this authority broad enough to authorize the execution of an enforceable ADR agreement by a health care representative? It is an important question, since family members are often asked to sign such an agreement when they admit an elder to a hospital or nursing home. Given the stress of the admissions process and a flood of paperwork, it seems unrealistic to expect that they will know what they are signing.

Are these agreements binding if the family member is health care representative for the elder? What if the family member is power of attorney for the elder but the document says nothing about ADR agreements? We will have to wait for other cases to get more answers.

Further Information

Often Overlooked In Nursing Home Admission Paperwork Is An Arbitration Agreement (Kaiser Health News, September 17, 2012)

Nursing Home Arbitration Agreements: Consumers Beware (ElderLawAnswers)

Your hospital status (whether you are classified an “inpatient” or “outpatient”) affects how much you pay for hospital services (like X-rays, drugs, and lab tests) and may also affect whether Medicare will cover care you get in a skilled nursing facility (SNF)

Although it’s counter-intuitive, you can spend a week or more in a hospital room and still not be considered to be a hospital “inpatient.” As a result your treatment, and any subsequent stay in a nursing home, may cost you a lot more.

The sad case of Larry and Lee Barrows

Consider the case of Larry and Lee Barrows. On July 3, 2009 Larry Barrows was taken by ambulance to an ER at his local hospital. After numerous tests in the ER he was taken to a hospital room where he remained for 8 days. While he was in the hospital Larry received physical therapy, IVs a low salt diet and numerous additional tests.

But Larry was never formally “admitted” as an inpatient to the hospital.

“After five days of treatment in the hospital, my husband’s neurologist, physician and social worker ushered me into the hallway to tell me that my husband was never admitted. I was stunned with disbelief and tearfully blurted out that I would fight this,” said Mrs. Barrows in a press release. “His doctors then indicated that this happens once or twice a week.”

Outpatient status meant that Lee Barrows would not qualify for Medicare Part A coverage. And he would not later be eligible for Medicare skilled nursing facility coverage because he did not meet the requirement of a prior 3 day hospital inpatient stay.

After 7 days in the hospital Larry was released from the hospital and taken to a skilled nursing facility. The stay in the nursing facility was very costly because it wasn’t covered by Medicare. After he had spent a costly 3 months in the nursing facility Larry’s family took him home where he soon died of pancreatic cancer.

Added Costs in the Hospital

What is going on here?  How can you spend a week in a hospital bed without being an inpatient in the hospital? Like much of the confusion surrounding health care these days, it turns out to be a payment issue. Both Medicare and private health insurance can pay less if you are deemed to be an outpatient. The insurers save money while the patient ends up paying more. Here is how it works for Medicare.

Hospital inpatient services are paid for by Medicare Part A (also known as “Hospital Insurance”). Generally, this means you pay only a one-time deductible ($1,184 in 2013) for all of your hospital services for the first 60 days.

But if you are not classified as an inpatient you get no coverage under Medicare Part A. Instead, you have to rely on Medicare Part B. If you are classified as being on outpatient “observation status” you will have to pay a co-payment (20% of the Medicare-approved amount) for each individual service you receive. Your total co-payment for all outpatient services may be substantially more than the inpatient hospital deductible.

And Part A has much better drug coverage. Part A payments made to the hospital or skilled nursing facility generally cover all drugs provided during a covered stay. But most prescription and over-the-counter drugs you get as an outpatient are not covered by Part B.

No Coverage if you need Nursing Home Care

If you need skilled care (like physical therapy) in an approved nursing facility, Medicare Part A will pay the entire nursing home cost for the first 20 days but only you have spent at least three full days in a hospital as an admitted inpatient. Medicare Part A coverage can continue to help pay a more limited amount for up to 100 days of your nursing home stay.

But if your hospital stay was as an outpatient “under observation” you will not qualify for Medicare nursing home coverage. With nursing home costs in Pennsylvania averaging $259 a day twenty days of lost Medicare coverage can cost you over $5,000 out of pocket.  And your drugs are generally not covered.

Why is this Happening?

The observation status problem is a result of federal Medicare regulations and increased oversight of hospitals which is designed to reduce Medicare expenditures.

Medicare has been telling hospitals that they will be audited if patients have been admitted as inpatients but should have been classified as outpatients.  Hospitals, wanting to avoid an audit, have become much more conservative in classifying admissions.

Hospitals are also concerned about Medicare financial penalties for re-admissions. To avoid a re-admission problem, hospitals can just not admit the patient in the first place.

In a recent article on the observation status problem the York Daily Record reports:

“[D]octors said the Medicare Recovery Audit Contractor [RAC] program has so cowed hospitals that they gladly accept a smaller reimbursement to avoid an audit. The RAC auditors are paid by Medicare based on what they find, doctors said, so they have incentive to find problems.

“Hospitals are very fearful of RAC audits,” [Dr. Richard Schott, president of the Pennsylvania Medical Society] said, adding that the system forces hospitals to be cautious. “If a patient comes in on observation status and their case turns out to be more complex … they can very easily be changed from observation status to an admission.

“There’s very little downside to the hospital in doing that. If it’s the reverse, it’s much more problematic.” (Quoted in York Daily Record, April 14, 2013)

The result is the growing use of observation stays at hospitals and added financial detriment to patients.

“Five years ago, we had virtually none for observation,” said Dr. Dan Wehner, who is chairman of the Department of Emergency Medicine at Memorial Medical Center in Johnstown [Pennsylvania]. “Three years ago, approximately 5 percent were observation, and now about 25 percent are observation.” (Quoted in York Daily Record, April 14, 2013)

What Can You do to Protect Yourself

It’s very difficult to protect yourself.  Even if your doctor orders that you be admitted to the hospital as an inpatient, a hospital utilization review (UR) committee can change your status from inpatient to outpatient. You can be initially classified as “admitted” but then later reclassified as “observation” without your consent.

A Federal Government booklet: “Are You a Hospital Inpatient or Outpatient? If You Have Medicare – Ask!” makes the following suggestions:

That is not much help. The truth is you are going to be pretty much stuck with what the hospital decides. You can’t really protect yourself. Seniors need the Medicare regulations and oversight procedures to change.

Legislative or Judicial Intervention is Needed

On March 18, 2013 the federal government’s Centers for Medicare and Medicaid (CMS) proposed additional rules regarding observation status (78 Fed. Reg. 16,632). But these new rules will not help beneficiaries at all, says the Center for Medicare Advocacy. “In fact, CMS’s prediction that hospitals will increasingly bill hospital stays under Part B will further reduce beneficiaries’ access to Medicare coverage in skilled nursing facilities (SNFs).”

Legislation has been introduced in Congress to address the observation status problem. Senate bill (S569) and House bill (HR 1179) would amend the law to provide that time spent under observation in a hospital counts as inpatient time under Medicare. These changes would allow seniors and others on Medicare to get the full benefit of their Medicare Part A coverage for hospital and skilled nursing care.

If enacted in their present form, these bills would apply retroactively to patients who were classified as being in observation status during periods after January 1, 2013. However, the beneficiary would need to file an appeal with regard to the services in question within 90 days of the enactment of the amendment of the law.

So, if observation status has resulted in your failure to qualify for Medicare Part A payment for a hospital or skilled nursing facility stay after January 1, 2013, you will want to follow the progress of these legislative proposals. And be sure to let your Congressional representatives know that you support the enactment of a legislative fix.   Unfortunately, the current political climate does not appear to be conducive to the passage of these proposals.

A more hopeful source of remedy may be the courts. A class action lawsuit, Bagnall v. Sebelius (No. 3:11-cv-01703, D. Conn) has been filed in federal court in Connecticut. Lee Barrows is one of the plaintiffs in that litigation. The lawsuit seeks a finding that the use of observation status violates the Medicare Act, the Freedom of Information Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the Constitution.  Motions for class certification and a government countermotion to dismiss are scheduled for oral argument on May 3, 2013.

Until something changes, the observation status problem seems likely to continue and many seniors will end up paying more for their hospital and nursing home stays.

For More Information:

Observation Status & Bagnall v. Sebelius (Center for Medicare Advocacy)

Are You a Hospital Inpatient or Outpatient? (Centers for Medicare and Medicaid Services)

Medicare Rules Give Full Hospital Benefits Only to Those with ‘Inpatient’ Status (Washington Post)

“Observation Days” in a Kafkaesque Hospital Setting

Inpatient or outpatient? More often, hospitals decide not to admit patients — which can mean the patient gets hit with more of the cost, York Daily Record (April 14, 2013)

Veterans Pension payments are an important source of financial support for care dependent veterans who are over age 65. 

Under the legislation the VA would be required to obtain information to determine whether a period of ineligibility for Pension payments is required. VA is to deny benefits if it considers that under all the circumstances, if the veteran or spouse had not disposed of such resource, it would be reasonable that the resource (or some portion of the resource) be consumed for the veteran’s maintenance.

The number of months of penalty would be equal to–

‘(i) the total, cumulative uncompensated value of all covered resources so disposed of by the veteran (or the spouse of the veteran) within the look-back date divided by ‘(ii) the maximum amount of monthly pension that is payable to a veteran including the maximum amount of increased pension payable under on account of family members, but not including any amount of pension payable because a veteran is in need of regular aid and attendance or is permanently housebound.

The bill has 5 co-sponsors and bi-partisan support. Called the “Veterans Pension Protection Act” it has been referred to the Senate Committee on Veterans Affairs. The text of the bill is available here: http://www.govtrack.us/congress/bills/113/s748/text

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