THE FOLLOWING STUDY ARTICLE IS INTENDED FOR BASIC AWARENESS AND NOT FOR 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.
AN AGENT UNDER A HEALTH CARE POWER OF ATTORNEY MAY HAVE HIS OR HER AUTHORITY CONTESTED BY THE ATTENDING STAFF PHYSICIAN OF A HEALTH CARE INSTITUTION CONCERNING BOTH THE PRINCIPAL’S COMPETENCE AND VARIOUS WRITTEN HEALTH CARE DIRECTIVES .
A. THE LONG STANDING HEALTH CARE AUTHORITY OF AN AGENT
1. Agents under a General Durable Power Of Attorney should enable an incapacitated principal to participate as fully as possible in all decisions which affect them and assist them in meeting the essential requirements of their physical health and safety and in developing and regaining their abilities to the maximum extent possible through the least restrictive means of accomplishing these goals. Such an Agent is to have an acknowledged duty to act with due care for the health care benefit of the incapacitated principal during the principal’s incapacity; to exercise reasonable caution and prudence; and to keep a full and accurate record of all healthcare actions on behalf of the Principal.
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 manage his financial resources or to meet essential requirements for his physical health and safety. (Dec. 10, 1974, P.L.899, No.295, eff. imd.; Apr. 16, 1992,P.L.108, No.24, eff. 60 days)
20 Pa C.S. § 5502. Purpose of Incapacitated Persons chapter.
Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative.
20 Pa C.S § 5601 (c) Notice.
This power of attorney does not impose a duty on your agent to exercise granted powers, but when powers are exercised, your agent must use due care to act for your benefit and in accordance with this power of attorney. ….. Your agent may exercise the powers given here throughout your lifetime, even after you become incapacitated, unless you expressly limit the duration of these powers or you revoke these powers or a court acting on your behalf terminates your agent’s authority…
20 Pa C.S § 5602. Form of power of attorney.
(a) Specification of powers.–A principal may, by inclusion of the language quoted in any of the following paragraphs or by inclusion of other language showing a similar intent on the part of the principal, empower an agent to do any or all of the following, each of which is defined in section 5603 (relating to implementation of power of attorney):
(1) “To make limited gifts.”
(2) “To create a trust for my benefit.”
(3) “To make additions to an existing trust for my benefit.”
(4) “To claim an elective share of the estate of my deceased spouse.”
(5) “To disclaim any interest in property.”
(6) “To renounce fiduciary positions.”
(7) “To withdraw and receive the income or corpus of a trust.”
(8) “To authorize my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care.”
(9) “To authorize medical and surgical procedures.”
(10) “To engage in real property transactions.”
(11) “To engage in tangible personal property transactions.”
(12) “To engage in stock, bond and other securities transactions.”
(13) “To engage in commodity and option transactions.”
(14) “To engage in banking and financial transactions.”
(15) “To borrow money.”
(16) “To enter safe deposit boxes.”
(17) “To engage in insurance transactions.”
(18) “To engage in retirement plan transactions.”
(19) “To handle interests in estates and trusts.”
(20) “To pursue claims and litigation.”
(21) “To receive government benefits.”
(22) “To pursue tax matters.”
(23) “To make an anatomical gift of all or part of my body.”
20 Pa C.S § 5601 (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 in the absence of a specific provision to the contrary in the power of attorney or in 20 Pa.C.S. when I act as agent:
I shall exercise the powers for the benefit of the principal……..
I shall exercise reasonable caution and prudence.
I shall keep a full and accurate record of all actions…on behalf of the principal.
2. A Health Care Agent shall have the authority to make any health care decision and to exercise any right and power regarding the Partially or Fully Incapacitated Principal’s care, custody and health care treatment that the Principal could have made and exercised. The Health Care Agent shall gather information on the principal’s prognosis and acceptable medical alternatives regarding diagnosis, treatments and supportive care. After consultation with health care providers , the Health Care Agent shall make health care decisions in accordance with the Health Care Agent’s understanding and interpretation of the instructions given by the principal at a time when the principal had the capacity to understand, make and communicate essential health care decisions. Instructions include an Advance Health Care Directive ( i.e. Living Will Directive) made by the principal and any clear written or verbal directions that cover the situation presented. In the absence of instruction, the Health Care Agent shall make health care decisions that conform to the health care agent’s assessment of the principal’s preferences and values, including religious and moral beliefs.
20 Pa C.S. § 5456. Authority of health care agent.
(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.
(c) Health care decisions.–
(1) The health care agent shall gather information on the principal’s prognosis and acceptable medical alternatives regarding diagnosis, treatments and supportive care.
(3) In the case of health care decisions regarding end of life of a patient with an end-stage medical condition, the information shall distinguish between curative alternatives, palliative alternatives and alternatives which will merely serve to prolong the process of dying. The information shall also distinguish between the principal’s end-stage medical condition and any other concurrent disease, illness or physical, mental, cognitive or intellectual condition that predated the principal’s end-stage medical condition.
(4) After consultation with health care providers and consideration of the information obtained in accordance with paragraphs (1), (2) and (3), the health care agent shall make health care decisions in accordance with the health care agent’s understanding and interpretation of the instructions given by the principal at a time when the principal had the capacity to understand, make and communicate health care decisions. Instructions include an advance health care directive made by the principal and any clear written or verbal directions that cover the situation presented.
(5) (i) In the absence of instruction, the health care agent shall make health care decisions that conform to
the health care agent’s assessment of the principal’s preferences and values, including religious and moral
beliefs.
(ii) If the health care agent does not know enough about the principal’s instructions, preferences and
values to decide accordingly, the health care agent shall take into account what the agent knows of the principal’s instructions, preferences and values, including religious and moral beliefs, and the health care agent’s assessment of the principal’s best interests, taking into consideration the following goals and considerations:
(A) The preservation of life.
(B) The relief from suffering.
(C) The preservation or restoration of functioning, taking into account any concurrent
disease, illness or physical, mental, cognitive or intellectual condition that may have predated the
principal’s end-stage medical condition.
(iii) (A) In the absence of a specific, written authorization or direction by a principal to withhold or withdraw nutrition and hydration administered by gastric tube or intravenously or by other artificial or invasive means, a health care agent shall presume that the principal would not want nutrition and
hydration withheld or withdrawn.
(B) The presumption may be overcome by previously clearly expressed wishes of the principal to the contrary. In the absence of such clearly expressed wishes, the presumption may be overcome if the health care agent considers the values and preferences of the principal and assesses the factors set forth in subparagraphs (i) and (ii) and determines it is clear that the principal would not wish for artificial nutrition and hydration to be initiated or continued.
3. Any person who is given instructions by a Agent in accordance with the terms of a Power of Attorney document shall comply with the instructions. Any person who without reasonable cause fails to comply with those instructions shall be subject to civil liability for any damages resulting from noncompliance. Any person who acts in good faith reliance on a Power of Attorney shall incur no liability as a result of acting in accordance with the instructions of the Agent.
20 Pa C.S. § 5608. Liability.
(a) Third party liability.–Any person who is given instructions by an agent in accordance with the terms of a power of attorney shall comply with the instructions. Any person who without reasonable cause fails to comply with those instructions shall be subject to civil liability for any damages resulting from noncompliance. Reasonable cause under this subsection shall include, but not be limited to, a good faith report having been made by the third party to the local protective services agency regarding abuse, neglect, exploitation or abandonment pursuant to section 302 of the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act.
(b) Third party immunity.–Any person who acts in good faith reliance on a power of attorney shall incur no liability as a result of acting in accordance with the instructions of the agent. (Dec. 16, 1992, P.L.1163, No.152, eff. imd.; Oct. 12, 1999,P.L.422, No.39, eff. 60 days)
B. MORE RECENT HEALTH CARE RELATED ENCROACHMENTS UPON AND POTENTIAL INTERFERENCES WITH THE AGENT’S AUTHORITY
1. Health care necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a Health Care Agent objects on behalf of the principal if authorized to do so by the Health Care Power of Attorney or Living Will. In every other case, subject to any limitation specified in the Health Care Power of Attorney, an Attending Physician or health care provider shall comply with a health care decision made by a Health Care Agent or Health Care Representative to the same extent as if the decision had been made by the principal.
20 Pa C.S. § 5462 (c) Compliance with decisions of health care agent and health care representative.–
(1) Health care necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will. In every other case, subject to any limitation specified in the health care power of attorney, an attending physician or health care provider shall comply with a health care decision made by a health care agent or health care representative to the same extent as if the decision had been made by the principal.
A. The Healthcare Power Of Attorney becomes operative only when the Attending Physician determines that the Principal is incompetent or incapable of making even non- essential healthcare decisions concerning him or herself.
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.
20 Pa.C.S. § 5443(a). “‘Attending physician.’ The physician who has primary responsibility for the health care of a principal or patient.”
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
B. 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 even non-essential 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.
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.
C. Health care necessary to preserve life shall be provided to an individual who has neither an End-Stage Medical Condition nor is Permanently Unconscious, except if the Health Care Agent objects and is authorized to do so by the Health Care Power of Attorney or Living Will. In every other case, subject to any limitation specified in the Health Care Power of Attorney, an Attending Physician or health care provider shall comply with a health care decision made by a Health Care Agent.
20 Pa C.S. § 5462 (c) Compliance with decisions of health care agent and health care representative.–
(1) Health care necessary to preserve life shall be provided to an individual who has neither an end-stage
medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will. In every other case, subject to any limitation specified in the health care power of attorney, an attending physician or health care provider shall comply with a health care decision made by a health care agent or health care representative to the same extent as if the decision had been made by the principal.
20 Pa C.S. § 5422 Definitions
“End-stage medical condition.” An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment. Except as specifically set forth in an advance health care directive, the term is not intended to preclude treatment of a disease, illness or physical, mental, cognitive or intellectual condition, even if incurable and irreversible and regardless of severity, if both of the following apply: (1) The patient would benefit from the medical treatment, including palliative care. (2) Such treatment would not merely prolong the process of dying.
1. Agents under Power of Attorney documents that are limited to exclusively provide for health care or mental health Care decision making are not required to acknowledge their duties to act with due care for the health care benefit of the principal during the principal’s incapacity; to exercise reasonable caution and prudence; and to keep a full and accurate record of all actions on behalf of the principal
20 Pa C.S. § 5601 (e.2) Limitation on applicability in health care power of attorney.—
Subsections (c) and (d) do not apply to a power of attorney which exclusively provides for health care decision making.
20 PA C.S. § 5843 ( c ). Construction.
(c) Notice and acknowledgment requirements.–The notice and acknowledgment requirements of section 5601(c) and (d) (relating to general provisions) shall not apply to a power of attorney that provides exclusively for mental health care decision making.
2. Healthcare Power Of Attorney documents can now include instructions that limit the authority of the health care agent and the discretion of the healthcare agent regarding the initiation, continuation, witholding or withdrawal of life sustaining treatment when the principal is neither in an end-stage medical condition nor permanently unconscious.
20 Pa. C.S. § 5453. Requirements and options.
(a) General rule.–A health care power of attorney shall:
(1) Identify the principal and appoint the health care agent.
(2) Declare that the principal authorizes the health care agent to make health care decisions on behalf of the principal.
(b) Optional provisions.–A health care power of attorney may, but need not:
(1) Describe any limitations that the principal imposes upon the authority of the health care agent.
(2) Indicate the intent of the principal regarding the initiation, continuation, withholding or withdrawal of life-sustaining treatment.
(3) Indicate whether the principal wants tube feeding or any other artificial or invasive form of nutrition or hydration.
3. A Mental Health Power of Attorney document may describe any limitations that the principal imposes upon the authority of the Mental Health Agent and indicate the intent of the principal regarding the initiation, continuation or refusal of mental health treatment.
20 Pa. C.S. § 5833. Form.
(a) Requirements.–A mental health power of attorney must do the following:
(1) Identify the principal and appoint the mental health care agent.
(2) Declare that the principal authorizes the mental health care agent to make mental health care decisions on
behalf of the principal.
(b) Optional provisions.–A mental health power of attorney
may:
(1) Describe any limitations that the principal imposes upon the authority of the mental health care agent.
(2) Indicate the intent of the principal regarding the initiation, continuation or refusal of mental health
treatment.
………
4. If an instruction provision in a Mental Health Power of Attorney document conflicts with a General Power of Attorney document, the provision in the Mental Health Power of Attorney shall prevail to the extent of the conflict regardless of the date of execution. If a provision of a Mental Health Power of Attorney document conflicts with a Health Care Power Of Attorney , the Mental Health Care Power of Attorney shall prevail to the extent of the conflict if the Health Care Power Of Attorney was executed after the effective date of the subchapter concerning Mental Health Powers Of Attorney
20 Pa. C.S. § 5844. Conflicting provisions.
If a provision of a mental health power of attorney conflicts with:
(2) A power of attorney, the provision in the mental health power of attorney shall prevail to the extent of the conflict regardless of the date of execution.
20 Pa. C.S. § 5845. Validity.
This subchapter shall not be construed to limit the validity of a health care power of attorney executed prior to the effective date of this subchapter.
5. Concerning an individual who has or may be approaching an End-Stage Medical Condition or is Permanently Unconscious, a standard , highly visible and portable POLST form (stands for “Physician Order for Life-Sustaining Treatment” form ) has recently been released and published by the PA Department Of Health, which creates actionable Physician Orders that supposedly direct care that is consistent with the Patient’s goals and preferences for end of life care. Such medical orders may be inconsistent with the provisions and authority of the principal’s Power of Attorney and Advance Healthcare Directives ( i.e. Living Will) and based on uninformed or misinformed consent.
20 Pa C.S. § 5422 Definitions
“End-stage medical condition.” An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment. Except as specifically set forth in an advance health care directive, the term is not intended to preclude treatment of a disease, illness or physical, mental, cognitive or intellectual condition, even if incurable and irreversible and
regardless of severity, if both of the following apply: (1) The patient would benefit from the medical treatment, including palliative care. (2) Such treatment would not merely prolong the process of dying.
POLST Form Released
The term POLST stands for “Physician Order for Life-Sustaining Treatment.” The use of POLSTs creates an actionable medical order that directs care that is supposedly consistent with the patient’s goals and preferences for end of life care treatment, and is provided in a form that can transfer with the patient as he or she moves between medical providers (such as from a nursing home to a hospital.) Following the protocol, health care professionals must discuss with seriously ill patients (or their surrogates) the available treatment options in light of their current condition—and help clarify the patients’ preferences. Then clinicians must document those preferences on a standardized medical order form and ensure that it travels with the individual if he or she changes settings of care. POLST enables patients to choose from a full range of care options, from aggressive treatment to limited interventions to comfort care. On November 16, 2010, the Department of Health posted a standard form for statewide use on its website, which should lead to its growing usage in nursing homes throughout Pennsylvania. However, there is as yet no provision in the law or any regulation for training of the personnel who will be filling out these forms for patients,.
6. Concerning an individual who has or may be approaching an End-Stage Medical Condition or is Permanently Unconscious , Do Not Resuscitate (i.e. DNR) orders, necklaces and bracelets concerning cardiopulmonary resuscitation shall be issued by an attending physician upon request of the Principal or his or her surrogate concerning persons with terminal illness with whom death is expected. Such orders may be inconsistent with the provisions and authority of the principal’s Power of Attorney and Advance Healthcare Directives ( i.e. Living Will) .
20 Pa C.S. § 5482. Legislative findings and intent.
The General Assembly finds and declares as follows:
(1) Although cardiopulmonary resuscitation has saved the lives of individuals about to experience sudden, unexpected death, present medical data indicates that cardiopulmonary resuscitation rarely leads to prolonged survival in individuals with terminal illnesses in whom death is expected.
(3) Existing emergency medical services protocols may require emergency medical services personnel to proceed to cardiopulmonary resuscitation when an individual is found in a cardiac or respiratory arrest even if the individual has completed an advance health care directive indicating that the individual does not wish to receive cardiopulmonary resuscitation.
(5) This subchapter provides clear direction to emergency medical services personnel and other health care providers in regard to the performance of cardiopulmonary resuscitation.
20 Pa C.S. § 5483 “Out-of-hospital do-not-resuscitate patient.”
An individual who:
(1) Has an end-stage medical condition or is permanently unconscious.
(2) Pursuant to section 5484(a) (relating to orders, bracelets and necklaces), possesses and in any manner
displays or causes to be displayed for emergency medical services providers an apparently valid order, bracelet or necklace.
20 Pa. C.S. § 5484. Orders, bracelets and necklaces.
(a) Issuance.–An attending physician, upon the request of a patient who is at least 18 years of age, has graduated from high school, has married or is an emancipated minor, or the patient’s surrogate if the surrogate is so authorized, shall issue to the patient an order and may issue at the request of the patient or the patient’s surrogate a bracelet or necklace supplied by the department. The patient may, at the patient’s option, wear the bracelet or display the order or necklace to notify emergency medical services providers of the patient’s DNR status.
D. Persons shall execute or amend their Mental Health Declarations or Mental Health Powers of Attorney every two years. However, if a person is incapable of making Mental Health Care decisions at the time the document would expire, the document shall remain in effect and be reviewed at the time when the person regains capacity.
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:
(3) Persons shall execute or amend their declarations or mental health powers of attorney every two years; however, if a person is incapable of making mental heath care decisions at the time this document would expire, the document shall remain in effect and be reviewed at the time when the person regains capacity
20 Pa. C.S. § 5834. Operation.
(c) Duration.–A mental health power of attorney shall be valid until revoked by the principal or until two years after the date of execution. If a mental health power of attorney for mental health treatment has been invoked and is in effect at the specified date of expiration after its execution, the mental health power of attorney shall remain effective until the principal is no longer incapable.
E. The Power Of Attorney must be legally valid and a principal must be competent when he or she signs the Power Of Attorney.
In December 2010 Pennsylvania Supreme Court held that a third party who accepts a power of attorney is ONLY entitled to immunity under 20 Pa.C.S. §5608 if the power of attorney is legally valid. Vine v. SERS Board, 9 A.3d 1150 . This means that if a principal was not competent when he signed the power of attorney and the document is therefore not valid, the statute’s immunity protection does not apply to protect a third party who accepts it. Even though a power of attorney appears to be valid on its face, the third party may be subject to liability for accepting it and acting in accordance with the instructions of the agent.
It thus may be prudent to have an affidavit of two witnesses when any power of attorney is executed, neither of whom can be the agent appointed in the DPOA, that the principal signed the DPOA as a free and voluntary act, and that the principal was of sound mind and under no constraint or undue influence. Also include an acknowledgment by the principal that he or she signed the DPOA willingly and as a free and voluntary act. The acknowledgment and affidavits must be made before a notary public, or an attorney at law and then certified to a notary public.
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