For each of us a day may come when we are unable to make or communicate health care decisions for ourselves. If that day does come, who will be authorized to make those decisions for us?

Unless you already have a court-appointed guardian, your legally authorized surrogate decision maker will be:

1st – The person you satisfactorily designated in advance, or

2nd – your family members or others in accordance with the order of priority set out by state law.

So, it is your choice whether to make this important appointment yourself or just leave your fate to state law.

As long as you remain competent you have the right to make medical decisions for yourself. This right of personal autonomy has long been a fundamental tenet of law. But if you are not competent, treatment decisions still need to be made. So, laws have been established that define who is authorized to act for you.

In Pennsylvania, the primary law is found in Act 169 of 2006 (as amended) which took effect on January 29, 2007. This law gives you the power to state in advance who will make health care decisions for you. And it defines who can make those decisions in the event that you have not taken advantage of the opportunity to make that appointment in advance of your incapacity.

In Pennsylvania, there are three basic ways for you to designate your choice to make medical and health-related decisions for you in the event you cannot make them yourself.

  • By signing a Living Will
  • By signing a Health Care Power of Attorney
  • By Designating a Health Care Representative.

What is a Living Will?

A living will is a written declaration that instructs your doctors regarding the use, withholding or withdrawal of life-sustaining treatment if you become terminally ill and lack the capacity to make decisions. A living will informs your doctor about your treatment desires when the use of life-sustaining treatment would serve only to postpone the moment of death or maintain you in a permanent unconscious state, but would not provide a cure for the condition.

Your living will applies only to the limited situation where you have an end-stage medical condition or are permanently unconscious. It is not relevant to other circumstances.

Under Pennsylvania law your living will may appoint someone to make decisions regarding life sustaining treatment for you if you are ever both incompetent and either terminally ill or permanently unconscious. This person is called a surrogate.

What is a Health Care Power of Attorney?

A health care power of attorney authorizes another person to make health-care decisions for you when you cannot make them yourself. Because it is not limited to terminal illness situations the health care power of attorney is much more broadly applicable than a living will. The person you choose is called your health care agent.

The document must be signed by you while you are competent. In it you can describe the types of treatment that you would and would not want to receive at the end of your life. But you do not have to do so. The document can give your agent the authority to make any and all health care decisions you could make, if you were competent. It is important to note that the health care power of attorney is only stand-by authority. You will continue to make decisions for yourself as long as you can do so.

Pennsylvania law also authorizes the use of mental health declarations and powers of attorney. Discussion of these mental health specific documents is beyond the scope of this article.

What is a Health Care Representative?

An individual of sound mind may, by a signed writing or by personally informing the attending physician or health care provider, designate one or more individuals to act as their health care representative. A health care representative has the same general powers as a health care agent.

Decision Making by Default

Who makes medical decisions for you if you become incapacitated but have not designates your preferred decision maker, or if your named decision maker is deceased or otherwise unavailable? In a few cases a court may have appointed a guardian for the patient. But if no one with decision making authority has been designated or appointed decisions still have to be made; in that case the law turns to the patient’s family and sets out an order of priority for decision making authority. Here is the order under Pennsylvania law:

(i) The spouse, unless an action for divorce is pending, and the adult children of the principal who are not the children of the spouse.

(ii) An adult child.

(iii) A parent.

(iv) An adult brother or sister.

(v) An adult grandchild.

(vi) 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.

If a higher priority decision maker is not reasonably available, Act 169 specifies that any member of the following classes, in descending order of priority, who is reasonably available, may act as the patient’s health care representative:

Reliance on the default order of priority can increase the potential for family conflicts. For example, if a widow has two adult children and children disagree as to treatment. Or, the patient has remarried and has adult children from a prior marriage.

As a general rule, it is best for you to designate who will be your decision maker rather than relying on the default law.  Most experienced elder law attorneys agree that the health care power of attorney is the planning tool of choice for most of their clients. A living will alone is not sufficient because it only applies in very limited situations.


Related resources from Marshall, Parker and Weber:

How to Choose your Health Care Agent

Living Will and Health Care POA what is the difference?

Understanding Act 169- A Professional’s Guide to Living Wills and Advance Health Care Powers of Attorney in Pennsylvania

Can a Court Revoke your Living Will or Health Care Power of Attorney?


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