What is an Advance Directive? Are there particular laws regarding advance directives in Pennsylvania?
Advance directives are documents which indicated your health care wishes in the event that you are not capable of making your own decisions. Advance directives are not used for decision-making if the patient is able to make the decision.
Pennsylvania recognizes two types of advance directives, durable power of attorney for health care decisions and living wills. A Values History is another form of advance directive (which may or may not include a living will and durable power of attorney for health care decisions). Here is a link to a sample Values History form. The AbioCor Implantable Heart Trial required all research participants to fill out a Values History Form.
Here is a link to the AMA’s public web-site for advance directives. It includes samples of a living will and DPA form. Pennsylvania does not require these forms to be notarized. But since some states do, the forms include a line for notarization as well. http://www.ama-assn.org/public/booklets/livgwill.htm
Durable Power of Attorney for Health Care Decisions (DPA) – This is a document indicating the patient’s choice of surrogate in the event that the patient loses decisional capacity. It must be filled out by the patient while he/she has intact decisional capacity. In many states, including Pennsylvania, it must also be signed by the designated surrogate. This is also referred to as “health care proxy” or “designated surrogate.” Designating a DPA helps moderate disagreements among family members and clarify who makes the decisions for the patient. Without such a document, there can be confusion over who should make decisions for the patient. In the absence of a DPA, many institutions will choose the next of kin to be the surrogate decision-maker for a patient who lacks the capacity to make his/her own decisions. DPA is essential if the person you wish to make decisions for you is not your next of kin or if you do not have any close relatives (for example, a parent might be chosen over a live-in partner, or an individual’s spouse might be chosen even though the couple had been separated).
Living Will – This is “a document executed by an adult which indicates his or her preferences regarding the initiation, continuation, withholding, or withdrawing of medical treatment in the event that he or she loses decision-making capacity.” (Ibid.) This helps the surrogate make decisions for the patient. It also promotes the patient’s actual wishes instead of someone else’s. Few people write living wills. It is difficult to anticipate future medical situations and what you might want at that time. However, these decisions are always difficult. Living wills provide support to loved ones by guiding them in your wishes and relieving some of their burden.
Under the federal Patient Self Determination Act, all health care institutions receiving Medicare or Medicaid funding:
1. must provide written information regarding his or her rights under state law to make decisions concerning medical care, including advance directives, to each adult receiving medical care through the provider or organization.
2. cannot condition the provision of care or discriminate against an individual based on whether or not the individual has executed an advance directive.
3. must comply with patients’ advance directives in a way that is consistent with state law.
4. must note patients’ records whether or not they have advance directives.
5. provide education about advance directives. (PSDA Interim Final Rule, 57 Federal Register 8194-8204 [3/06/96]).
Pennsylvania’s Advance Directive for Health Care Act, allows an individual of sound mind who is 18 years or older (or has graduated from high school or is married) to execute an advance directive. It also includes the following:
1. There is civil and criminal immunity for health care providers who follow the procedures set forth in the act.
2. There is no specific format for the advance directive.
3. The advance directive does not need to be notarized, but must be signed by the declarant or another on behalf of the declarant and witnessed by two adults.
4. The advance directive becomes operative when “a copy is provided to the attending physician and the declarant is determined by the attending physician to be incompetent and in a terminal condition or in a state of permanent unconsciousness.” These prognoses must be confirmed by a second physician.
5. An advance directive can be revoked at any time and in any manner by the declarant regardless of his/her mental or physical condition. The revocation is effective upon communication to any health care provider by the declarant or a witness to the revocation.
6. Artificial nutrition and hydration are identified as forms of life-sustaining treatment and thus, may be withdrawn if requested by the patient in the advance directive.
7. Health care providers who feel morally unwilling to comply with the patient’s advance directive can transfer care to another qualified health care provider who will comply if possible. But, if this is not feasible the health care provider must comply with the patient’s advance directive.
8. Any pregnant woman who is incompetent and either terminally ill or permanently unconscious must be maintained on life support until the fetus can be safely delivered. However, there is no requirement to perform a pregnancy test.
There are three exceptions to this requirement. They hold if the attending physician and an obstetrician after an examination believe that…
1. life-sustaining treatment, nutrition, and hydration would not result in the development and live birth of the fetus;
2. such treatment would be harmful to the woman;
or
3. the treatment would cause her pain that medication could not alleviate.
Under such circumstances, the living will can be followed.
9. The medical command physician may authorize emergency medical personnel to honor an advance directive. The medical command physician may base this decision on prior notification that a valid and operative advance directive exists or the notification by emergency medical services personnel that they have been presented with a signed, advance directive. Emergency medical services personnel must immediately notify the medical command physician when presented with a living will, signed by the patient, or other authorized person.
10. “Emergency medical services personnel confronted with any conflicting information regarding the patient’s wishes for life-sustaining treatment shall act according to the accepted treatment protocols and standards appropriate to their level of certification.( 5413)”
(Advance Directive for Health Care Act, 1992, April 16, P.L. 108, No. 24, 5402-5501)
Particular Questions about Advance Directives:
1. When will my living will take effect?
Your living will takes effect when the following three conditions are met:
(a) Your physician or health care provider has a copy of your living will;
(b) Your physician has determined that you are incompetent; and
(c) Your physician has determined that you are permanently unconscious or suffer from an end-stage medical condition.
2. What does it mean to be incompetent?
To be incompetent means that you are unable to understand the risks and benefits of a medical decision, you cannot make a medical decision on your behalf, or you cannot communicate a medical decision to your health care provider. For example, if you are unconscious or you suffer from dementia, your health care provider likely will determine that you are incompetent. A formal adjudication of incompetency by a court is not required for your living will to take effect. Back to top
3. What is an end-stage medical condition?
An end-stage medical condition is an incurable or irreversible medical condition in an advanced state that even with the introduction of medical treatment will result in death. For example, advanced Alzheimer’s disease or terminal cancers are considered end-stage medical conditions.
4. Does my health care provider have to follow the instructions in my living will?
Generally, yes. Pennsylvania law requires health care providers to follow the instructions in your living will. However, there are special rules about pregnant women who have living wills. Also, a living will cannot instruct your health care provider to act contrary to Pennsylvania law. If your health care provider cannot follow your instructions because of moral beliefs, your health care provider must transfer your care to another health care provider who can follow your instructions.
5. What is a health care power of attorney?
A health care power of attorney allows you to appoint someone to make medical decisions for you should you be unable to make medical decisions for yourself. You can also provide instructions to help your appointed decision maker make medical decisions. Back to top
6. When does a health care power of attorney take effect?
A health care power attorney takes effect when the following two conditions are met:
(a) Your health care provider has a copy of your health care power of attorney; and
(b) Your health care provider determines that you are incompetent.
7. What is a health care representative?
A health care representative is a person authorized by Act 169 of 2006 to make medical decisions for you if you do not have an advance directive and your physician determines that you are incompetent.
8. What medical decisions can my health care representative make?
Generally, the medical decisions your health care representative can make are the same as the decisions an appointed decision maker can make under a health care power of attorney. That means your health care representative can consent to surgery, authorize your admission to a nursing home, access your medical records, and consent to donation of your organs.
9. Who can be my health care representative?
Act 169 of 2006 provides a list of persons who can serve as your health care representative. The following persons, in the order listed, can be your health care representative:
(a) Spouse and, if applicable, your adult children from a prior relationship;
(b) Adult children;
(c) Parents;
(d) Adult siblings;
(e) Adult grandchildren; and
(f) Any adult who has knowledge of your values and beliefs (e.g. close friend, cousin, roommate)
10. Can I have more than one health care representative?
Yes. All members of the same class can act as your health care representative. For example, if you do not have a current spouse, but you have three adult children, all three adult children can act as your health care representative.
11. What if my health care representatives cannot agree to a decision regarding my care?
Act 169 of 2006 allows health care providers to follow the instructions of the majority of your health care representatives. For example, if you have three adult children who are acting as your health care representative and they cannot agree on a medical decision, the health care provider will follow the majority decision.
12. What are the main differences between a living will and a health care power of attorney?
A living will and health care power of attorney serve different functions. First, a living will is more limited in scope than a health care power of attorney. A living will only applies to medical care and decisions regarding end-of-life care. A health care power of attorney is broader in scope as it applies to all medical care and treatment. Second, a health care power of attorney allows you to appoint a decision maker to make medical decisions on your behalf. A living will generally does not appoint anyone to make medical decisions for you. Rather, you provide instructions to your health care provider regarding end-of-life care. Third, a health care power of attorney takes effect when you are incompetent while a living will does not take effect until you are both incompetent and permanently unconscious or suffer from an end-stage medical condition.
13. Does Pennsylvania recognize advance directives from other states?
Generally, yes. As long as the instructions in your advance directive are not contrary to Pennsylvania law, your advance directive from another state is valid in Pennsylvania.
14. Do other states recognize advance directives from Pennsylvania?
Likely, yes. However, you should check the law of the other state to be sure that the state recognizes out of state advance directives.
15. Is a health care power of attorney the same as a financial power of attorney?
No. A health care power of attorney is specifically limited to medical care and treatment. Typically, a financial power of attorney does not authorize the appointed individual to make medical decisions.
16. Where can I get more information regarding advance directives?
If you are admitted to Lancaster General Hospital, LGH staff can provide you with more information. Also, to following organizations are available for you to contact:
Pennsylvania Department of Aging
555 Walnut Street, 5th Floor
Harrisburg, PA 17101-1919
(717) 783-6842
Pennsylvania Medical Society
777 East Park Drive
P.O. Box 8820
Harrisburg, PA 17105-8820
1-800-228-7823
Aging with Dignity
P.O. Box 1661
Tallahassee, FL 32302-1661
(888) 594-7437