• Q&A: New Health Care Representative Statute in Pennsylvania
  • April 17, 2007 | Author: Kathleen A. Stephenson
  • Law Firm: Pepper Hamilton LLP - Philadelphia Office
  • As noted in the last Estate Planning Update, the new Pennsylvania statute governing health care powers of attorney and living wills became effective on January 29, 2007.

    The new statute reflects subtle and not so subtle changes to prior law; however, it continues to recognize your right to appoint a “health care representative” to make health care decisions for you if your doctor determines that you cannot make such decisions on your own behalf, and you are in an “end-stage medical condition” or are “permanently unconscious.”

    What has changed?

    Previously, a health care representative could make health care decisions for you in the event that you had a “terminal condition” or were “permanently unconscious.” The new statute substitutes the term “end-stage medical condition” for “terminal condition.” While the definitions are substantially the same, the new act adds a key distinction by providing that regardless of the severity of the illness, an “end-stage medical condition” should not preclude treatment if you would benefit from such treatment (even if it only offers palliative care) and if the treatment would not merely prolong the process of dying. The new statute law also assumes that you will not want food and hydration withdrawn unless you have a signed writing that explicitly authorizes the withdrawal or withholding of food and hydration.

    The new statute sets forth a detailed process for your health care representative to follow when making decisions concerning an end-stage medical condition. It requires the representative to gather information about your diagnosis and prognosis, as well as on the various alternatives of treatment available, and then distinguish between curative and palliative treatments and those that simply prolong the process of dying. Your health care representative is charged with acting in accordance with your expressed desires concerning treatment in such situations or, if you have not done so, must act in your best interests in accordance with his or her knowledge of your religious and moral beliefs with respect to such matters.

    I already have a living will or health care power of attorney. Do I need to change it?

    Existing health care powers and living wills are still valid. The new statute provides that any statement expressing your wishes concerning health care is valid, no matter when executed.

    However, it is a good idea to review any existing documents to ensure that they still represent your wishes. For instance, you may want to be specific with respect to your intentions regarding food and hydration. Or, you may want to direct that the new statute not apply at all to relieve your health care representative from the decision process described above when making end-stage decisions.

    If I don’t have a health care power of attorney or living will—who can make health care decisions for me under the new law?

    If you do not have a living will or power of attorney, the new statute provides that the following parties, in order of priority, can make those decisions:

    1. your spouse (unless an action for divorce is pending) and any of your adult children who are not also the children of your current spouse
    2. your adult children
    3. your parents
    4. your adult siblings
    5. your adult grandchildren
    6. an adult who has knowledge of your “preferences and values, including, but not limited to, religious and moral beliefs” with regard to how you would make health care decisions.

    No health care directive or living will can take the place of open and frank discussions of your wishes with your loved ones and doctors.