On November 29, 2006, Governor Rendell signed a new law dealing with Living Wills and Health Care Powers of Attorney that becomes effective January 29, 2007. The law was a long time in the making as various groups have been working on these issues for the past ten years. While the part of the new law dealing with Living Wills is essentially identical to the prior law, the provisions of the new law dealing with Health Care Powers of Attorney and Health Care Representatives are new concepts.
For starters, it is important to recognize that if you can understand the medical alternatives and you can communicate, then it is you who is to make the decisions concerning your care. However, where you cannot understand or communicate a decision, the new law says that we are to make decisions on your behalf based on instructions in a Living Will; or directions from a Health Care Agent appointed in a Health Care Power of Attorney; or directions from a close family member or other Health Care Representative designated by the patient or by default based upon a list of priorities set forth in the law.
The Living Will is a statement by you expressing your wishes and instructions for health care if you have what the law terms an “end-stage medical condition” or if you are “permanently unconscious”. The Living Will generally expresses a wish that you be kept comfortable and be given medication to relieve pain, but that you not be given medical treatments that prolong the process of dying. However, since the Living Will only applies if you have an end-stage medical condition or are permanently unconscious, it isn’t the most effective way of dealing with medical decisions in other situations. That’s why the new law sets forth rules for Health Care Powers Of Attorney and Health Care Representatives.
The new law defines a Health Care Power of Attorney as a written document where you name another person or persons to make health care decisions on your behalf. Whereas, the Living Will is merely a statement by you regarding your wishes about end-of-life decisions, the Health Care Power of Attorney allows you to designate a surrogate who can make all health care decisions including the selection and discharge of a health care provider; the approval of a diagnostic test, surgical procedure or program of medication as well as the decisions regarding the initiation, continuation and withdrawal of life-sustaining treatment, including instructions not to resuscitate. The Health Care Power of Attorney is not limited to end-stage medical conditions. It is particularly important as a result of the medical privacy law known as HIPAA. Under HIPAA, your health care information is protected and your spouse and other close family members may not be able to access that information without proper authorization under a Health Care Power of Attorney.
While these provisions dealing with the Living Will and Health Care Power of Attorney are great, the legislature recognized that most people fail to sign such documents. As such, they included provisions that officially establish a surrogate decision maker for those who fail to designate one. That is, for the first time, Pennsylvania has a law that clarifies the people who can make health care decisions on your behalf in the event you are unable to act for yourself and have failed to designate someone in advance. The law calls this default decision-maker a Health Care Representative and the following are given priority in the order listed:
— The spouse.
— An adult child.
— A parent.
— An adult brother or sister.
— An adult grandchild.
— An adult who has knowledge of your preferences and values.
If a divorce is pending, then your spouse does not have any priority, and if you have adult children that are not the children of your spouse, then those adult children have the same priority as your spouse.
While this pecking order for the Health Care Representative may suit many in our society, this list of default decision-makers will certainly be inappropriate for others. In those cases, it is now even more important to sign Health Care Powers of Attorney in advance.
To make things easy and encourage the public to address these issues, the law includes a sample form that combines a Living Will and a Health Care Power of Attorney into one document. While somewhat lengthy, this suggested form is a tremendous improvement over Pennsylvania’s prior Living Will form. I would expect that the form will soon become widely available through the local hospitals and other health care facilities.