THE FOLLOWING LEGAL STUDY ARTICLE POSTING IS INTENDED TO SUPPORT AWARENESS AND UNDERSTANDING. IT IS ONLY A PRELIMINARY LEVEL LEGAL STUDY ARTICLE AND IT IS NOT LEGAL ADVICE. IF THE READER SEEKS LEGAL ADVICE CONCERNING HIS OR HER PARTICULAR SITUATION, HE OR SHE SHOULD SEEK OUT AN ATTORNEY IN A LAWYER CLIENT RELATIONSHIP.
Under Pennsylvania statutory law :
A. A valid durable , financial only power of attorney , providing that the agent’s power shall become effective upon the incapacity of the principal, becomes operative only when the principal’s ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he or she is partially or totally unable to manage his or her financial resources or to meet essential requirements for his or her physical health and safety. An agent shall have no authority to act as agent under such power of attorney unless the agent has first executed and affixed to the power of attorney an acknowledgment that the agent shall act only within the scope of the incapacity contingent or dependent authority granted to the agent by the principal.
STUDY BASIS
See 20 Pa. C.S.A.§ 5604. Durable powers of attorney.
(a) Definition.–A durable power of attorney is a power of attorney by which a principal designates another his agent in writing. The authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity. A principal may provide in the power of attorney that the power shall become effective at a specified future time or upon the occurrence of a specified contingency, including the disability or incapacity of the principal.
(underlining added)
See 20 Pa. C.S.A. §5501. Meaning of incapacitated person.
“Incapacitated person” means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.
See 20 Pa. C.S.A. §5601 General Provisions
(d) Acknowledgment executed by agent.–An agent shall have no authority to act as agent under the power of attorney unless the agent has first executed and affixed to the power of attorney an acknowledgment in substantially the following form:
| I | have read the attached power of attorney and am the person identified as the agent for the principal. I hereby acknowledge that when I act as agent: I shall act in accordance with the principal’s reasonable expectations to the extent actually known by me and, otherwise, in the principal’s best interest, act in good faith and act only within the scope of authority granted to me by the principal in the power of attorney. |
………………………………………………..
…………………………. ………………….
| (Agent) | (Date) |
(underlining added)
B. A valid healthcare power of attorney becomes operative when the physician who has primary responsibility for the health care of the principal is tendered a copy of the health care power of attorney and determines that the principal is incompetent or sufficiently incapable of making or communicating decisions concerning him or herself. That is , the principal’s ability to receive and evaluate information effectively and communicate decisions in any way is found to be impaired to such a significant extent that the principal is partially or totally unable to meet essential requirements for his or her physical health and safety.
STUDY BASIS
See 20 Pa C.S. § 5454. When health care power of attorney operative.
(a) When operative.–Unless otherwise specified in the health care power of attorney, a health care power of attorney becomes operative when:
(1) a copy is provided to the attending physician; and
(2) the attending physician determines that the principal is incompetent.
See 20 Pa. C.S.A. § 5403 Incompetence is the lack of sufficient capacity for a person to make or communicate decisions concerning himself or herself
See 20 Pa. C.S.A. §5501. Meaning of incapacitated person.
“Incapacitated person” means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.
C. A valid mental health care power of attorney becomes operative when the physician who has primary responsibility for the health care of the principal is tendered a copy of the mental health power of attorney and it is found after examination that the principal is incompetent or sufficiently incapable of making or communicating decisions concerning him or herself. That is , it is found that the principal’s ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that the principal is partially or totally unable to meet essential requirements for his or her mental health and safety.
STUDY BASIS
See 20 Pa. C.S.A. § 5834. Operation.
(a) When operative.–A mental health power of attorney shall become operative when:
(1) A copy is provided to the attending physician.
(2) The conditions stated in the power of attorney are met.
See 20 Pa.C.S. § 5443(a). “‘Attending physician.’ The physician who has primary responsibility for the health care of a principal or patient.”
See 20 Pa.C.S. § 5833. Form.
(c) Written form.–A mental health power of attorney may be in the following form or any other written form identifying the principal, appointing a mental health care agent and declaring that the principal authorizes the mental health care agent to make mental health care decisions on behalf of the principal:
Mental Health Power of Attorney
I, , having the capacity to make mental health decisions, authorize my designated health care agent to make certain decisions on my behalf regarding my mental health care. If I have not expressed a choice in this document, I authorize my agent to make the decision that my agent determines is the decision I would make if I were competent to do so.
(underlining added)
See 20 Pa. C.S.A. § 5403 Incompetence is the lack of sufficient capacity for a person to make or communicate decisions concerning himself or herself
See 20 Pa C.S § 5501. Meaning of incapacitated person.
“Incapacitated person” means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to ….meet essential requirements for his … health and safety.
(excerpting of language added )
D. Persons are presumed capable of making mental health decisions, unless they are adjudicated incapacitated, involuntarily committed or found to be incapable of making mental health decisions after examination by a psychiatrist and one of the following: another psychiatrist, psychologist, family physician, attending physician or mental health treatment professional. Whenever possible, at least one of the decision makers shall be a treating professional of the principal. Such a mental health treatment professional is a licensed physician who has successfully completed a residency program in psychiatry or a person trained and licensed in social work, psychology or nursing who has a graduate degree and clinical experience in mental health.
STUDY BASIS
See 20 Pa. C.S. § 5807. Rights and responsibilities.
(a) Declarants and principals.–Persons who execute a declaration or a mental health power of attorney shall have the following rights and responsibilities:
(1) For the purposes of this chapter, persons are presumed capable of making mental health decisions, including the execution of a mental health declaration or power of attorney, unless they are adjudicated incapacitated, involuntarily committed or found to be incapable of making mental health decisions after examination by a psychiatrist and one of the following: another psychiatrist, psychologist, family physician, attending physician or mental health treatment professional. Whenever possible, at least one of the decision makers shall be a treating professional of the declarant or principal.
20 Pa. C.S. § 5802. Definitions.
“Mental health care.” Any care, treatment, service or procedure to maintain, diagnose, treat or provide for mental health, including any medication program and therapeutical treatment.
“Mental health care agent.” An individual designated by a principal in a mental health power of attorney.
“Mental health care provider.” A person who is licensed, certified or otherwise authorized by the laws of this Commonwealth to administer or provide mental health care in the ordinary course of business or practice of a profession.
“Mental health power of attorney.” A writing made by a principal designating an individual to make mental health care decisions for the principal.
“Mental health treatment professional.” A licensed physician who has successfully completed a residency program in psychiatry or a person trained and licensed in social work, psychology or nursing who has a graduate degree and clinical experience in mental health.
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