November 27, 2006

Act 169 And The Health Care Power Of Attorney

In November 2006 the Legislature passed and the Governor signed Act 169 to create a new statutory basis for Advanced Directives for Health Care. Advanced Directives include Health Care Powers of Attorney and Living Wills. Many consider the Act a major step forward for health care directives in the Commonwealth. You need to understand the important changes included in this law.

A Living Will is the individual’s personal written statement of desires regarding life-sustaining treatment to be administered or withheld in limited circumstances. It is to apply when the patient is in a terminal condition and a permanent state of unconsciousness.

Most existing Living Wills are not affected and will remain valid. However, it is recommended that you review your documents because there are new provisions that you may want to take advantage of. Directions regarding organ donation and Out-of-Hospital Do Not Resuscitate provisions may not have been included in your current Living Will. Do Not Resuscitate orders authorize and direct emergency medical service providers to withhold cardiopulmonary resuscitation from the patient in the event of respiratory or cardiac arrest. These two provisions are included in the new Act and you should make your choice known on those issues.

Act 169 defines Health Care Powers of Attorney as separate documents for the first time. A Health Care Power of Attorney is a written document in which the patient appoints another person to serve as the patient’s health care agent and make health care decisions for the patient. Your Health Care Power of Attorney appoints your health care agent and any alternate agents you appoint. You specify the powers and authorities of your health care agent. Those powers can be as broad as all of the medical and health care powers you have as an individual. We recommend that you have a Health Care Power of Attorney for a health care agent with broad powers to be available to assist you in an emergency.

The most significant change enacted into law is the provision for close family members to refuse medical treatment for incapacitated patients. Note that no documents signed by the patient are required. Your exact wishes will not be known by others. If you recall the news reports in 2005 regarding Terri Schiavo in Florida, then you are aware of the exact situation this portion of the Act addresses. When an individual is incapacitated and has no valid written Living Will, then the statute specifies first a spouse, then adult child, followed by parent, adult sister or brother, adult grandchild, and finally even a close friend can act as a health care representative. This health care representative may direct the provision, continuation, withholding, or withdrawal of medical care including life-sustaining medical care. The Schiavo case involved two issues. First, who was the appropriate representative? And second, should life –sustaining treatment be withdrawn?

Act 169 now answers the first question in Pennsylvania. If you do not designate a health care agent in valid written power of attorney, the government has designated classes of persons who will have the authority to make medical, and possibly end of life, decisions for you. Note that the Act does not distinguish between several children, siblings, grandchildren or friends. You must act to designate your health care agent to avoid family disputes over who is to make health care decisions if you are incapacitated. When you appoint the person in a valid Health Care Power of Attorney, that person is called your health care agent instead of health care representative. You should also specify the extent of your agent’s authority in the event you become terminally ill

Act 169 is effective on January 29, 2007. 

What It Means to You

Although the Pennsylvania statute attempts to give your health care agent and/or representative access to your confidential medical information, it is not clear that medical service providers in other states would recognize that authority. The HIPAA regulations governing confidentiality of medical information are part of federal law. If you become ill while vacationing or move to a care facility near a child in another state, will the basic Pennsylvania form of Health Care Power of Attorney be sufficient? Cipriani & Werner recommends having a written Health Care Power of Attorney that includes the HIPAA personal representative authorization for access to medical information.
 

Sources

Act 169