Living Wills: Advanced Healthcare Declarations

Please note: This area of the law is currently being reexamined by our legislature. Because this review may result in a change in our laws, it is particularly important that you review the following information with your attorney before taking any action based upon the information in this section.

It is fortunate that this review is actively occurring as Pennsylvania was recently ranked in the bottom four of our fifty states in a scholarly report by a patients’ rights group.

In 1992, Pennsylvania became the last of our fifty states to pass a “Living Will” statute. IN 1994, these laws were again revised to enable anatomical gifts (organ donation).

You may be familiar with the current Living Will form if you or a family member has been a patient in a Hospital. When you are admitted as a patient, you are asked if you have a Living Will or Advance Directive. This question is required by federal patient rights law. The PA Statutory Living Will form is composed of a series of yes or no questions related to your care at end of life.

The PA Statutory Living Will can be acted upon by your agent only if your attending physician certifies that you are near death. Here are a few brief definitions of important terms contained in the PA Statutory Living Will.

Incompetent:

The Patient lacks sufficient capacity to make or communicate decisions concerning himself or herself or the options for treatment.

Life-Sustaining Treatment:

Any medical procedure or intervention that serves only to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. If your document so provides, this treatment may include nutrition and hydration administered intravenously or by stomach or nose tube or other artificial, surgical or invasive means.

Permanently Unconscious:

A medical condition diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity of interaction with the environment; includes a persistent vegetative state or irreversible coma.

Who May Execute a Living Will

In Pennsylvania, anyone of sound mind and aged 18 years or married or graduated from High School may execute a Living Will. The PA Statutory Living Will only requires two witnesses aged 18 or older. However, each state has a similar law with unique requirements. Therefore, you may wish to improve the acceptance of the document in other states by having your and your witnesses’ signatures notarized.

It is perhaps most critical to discuss with your physician the kinds of treatments you might wish to withhold under certain circumstances. Certainly, you would want to understand what effect certain treatments would have on your body. A copy of your Living Will should be given to your primary care physician who will safeguard it in your medical records. Your doctor will appreciate this communication because by following your written instructions the doctor will be protected from liability. However, you might find that your doctor is not comfortable with your expressed preferences, because your choices might not be compatible with the physician’s moral or religious beliefs. It is much better to discover this difference before a crisis occurs. You can then find a doctor whose beliefs are more compatible with your own.

Additionally, you might wish to name a surrogate (agent) to carry out your wishes should you be unable to communicate. Also, you may specifically prohibit certain persons from acting as a surrogate. For example, you might not want an estranged spouse interacting with your doctor regarding your care.

By law, hospitals and nursing homes must provide patients with information concerning Living Wills. However, information concerning Health Care Declarations is optional. Hospitals and nursing homes may not charge different fees dependent upon whether or not a patient has a Living Will.

The PA Statutory Living Will becomes operable (or empowers your agent) ONLY when the attending physician is provided with a copy AND the attending physician determines that the patient is incompetent AND in a terminal condition OR in a state of permanent unconsciousness. The attending doctor must certify this diagnosis in writing and this diagnosis must be confirmed by another physician. ONLY WHEN AND ONLY IF all of these steps are followed is the PA Statutory Living Will able to give your agent authority to make end-of-life decisions for you.

Absence of a Living Will

If a patient has not executed an advance directive (Living Will or similar document), there is no presumption of the patient’s intentions to consent to or to refuse life-sustaining treatment. However, the Pennsylvania Supreme Court has held that when there is no advance directive, a close relative, with the consent of two physicians and without Court involvement, may remove life-sustaining treatment from an adult relative who is in a persistent vegetative state.

Durable Health Care Power of Attorney

Sometimes, an event, condition or circumstance might make it impossible for a patient to interact with her doctor. Perhaps, for example, she has been in an accident or has been given medicine to control her pain. She may have undergone surgery and still be feeling the effects of her anesthesia. Under such circumstances, her ability to listen to her doctor’s explanation of treatment choices and her ability to reasonably evaluate alternatives can be significantly impaired. Similarly, if a person is suffering from Alzheimer’s or other dementia, she may not be able to interact with her health care providers and cannot give informed consent to a proposed form of treatment.

Many people chose to anticipate this type of incapacity and name an agent (or surrogate) to act for them regarding ALL health care decisions. The document that formally records this choice is called a Durable Health Care Power of Attorney (DHCPOA).

Similar to a power of attorney that enables your agent to attend to your financial and property decisions, the DHCPOA can enable your agent to make your health care decisions for you if you are too ill to make them for yourself. Your agent for health care decisions may be the same person who is your agent for your financial and property decisions or it may be someone else. This is because the skills, capabilities and knowledge needed for each of these tasks are distinctive.

Additionally, because we are living longer than ever before, many people now recognize that the possibility is that much greater that they will have some period of incapacity – whether temporary (for an operation) or longer (with a progressive or cognitive illness like Alzheimer’s disease).

Remember, a Living Will only comes into use at the end of life. A DHCPOA can cover the much larger gap of time between incapacity and end of life. An agent empowered by a well crafted DHCPOA can help insure that our individual preferences, desires, and wishes regarding our health care are honored and enforced.

This freedom to name a person who is not your spouse as your agent of choice for a DHCPOA was affirmed by a Pennsylvania Superior Court case called Duran. Because this area of the law has received a lot of notice in the press and because legislation in this are is currently pending, please contact your attorney to initiate this type of planning.

For those persons with mental health issues, the Pennsylvania Legislature has created a new mental health care power of attorney. The law can be found in a new chapter 58 of the Probate Estates and Fiduciary Code.