A HEALTH CARE DECISION-MAKING PROPOSAL A PRUDENT INVESTOR RULE OTHER PROPOSED AMENDMENTS

Transcription

1 A HEALTH CARE DECISION-MAKING PROPOSAL A PRUDENT INVESTOR RULE OTHER PROPOSED AMENDMENTS RECOMMENDED BY THE TASK FORCE AND ADVISORY COMMITTEE ON DECEDENTS= ESTATES LAWS General Assembly of the Commonwealth of Pennsylvania JOINT STATE GOVERNMENT COMMISSION 108 Finance Building Harrisburg, Pennsylvania March 1998

2 The release of this report should not be construed as an indication that the members of the Executive Committee of the Joint State Government Commission endorse all of the report's findings, recommendations or conclusions. JOINT STATE GOVERNMENT COMMISSION ROOM 108 FINANCE BUILDING HARRISBURG PA FAX The Joint State Government Commission was created by act of July 1, 1937 (P.L.2460, No.459) as amended, as a continuing agency for the development of facts and recommendations on all phases of government for the use of the General Assembly. -iii-

3 JOINT STATE GOVERNMENT COMMISSION, 1998 OFFICERS Roger A. Madigan, Chairman Ivan Itkin, Treasurer EXECUTIVE COMMITTEE Senate Members Robert C. Jubelirer President Pro Tempore House Members Matthew J. Ryan Speaker F. Joseph Loeper John M. Perzel Majority Leader Majority Leader Robert J. Mellow Minority Leader David J. Brightbill Majority Whip Leonard J. Bodack Minority Whip Noah W. Wenger Chairman, Majority Caucus Michael A. O'Pake Chairman, Minority Caucus H. William DeWeese Minority Leader Donald W. Snyder Majority Whip Ivan Itkin Minority Whip Howard L. Fargo Chairman, Majority Caucus Mark B. Cohen Chairman, Minority Caucus MEMBER EX-OFFICIO Roger A. Madigan, Commission Chairman Conrad C. M. Arensberg, Counsel David L. Hostetter, Assistant Counsel -iv-

4 TASK FORCE ON DECEDENTS' ESTATES LAWS SENATE MEMBERS Stewart J. Greenleaf, Chairman Roy C. Afflerbach Jay Costa Jr. Charles D. Lemmond Hardy Williams HOUSE MEMBERS Daniel F. Clark Michael C. Gruitza Michael K. Hanna Robert D. Reber Jr. Donald W. Snyder -v-

5 ADVISORY COMMITTEE ON DECEDENTS' ESTATES LAWS William McC. Houston, Esq. Chairman M. Paul Smith, Esq. Secretary Thomas A. Beckley, Esq. Ira B. Coldren Jr., Esq. William R. Cooper, Esq. Robert E. Diehl Jr., Esq. Honorable Calvin S. Drayer Robert C. Fernandez, Esq. Honorable Roger M. Fischer Robert L. Freedman, Esq. G. Donald Gerlach, Esq. Edward J. Greene, Esq. Richard L. Grossman, Esq. Neil E. Hendershot, Esq. James A. Humphreys III, Esq. David J. Kaufman, Esq. John J. Lombard Jr., Esq. Edwin L. R. McKean, Esq. Michael J. Mullaugh, Esq. Honorable Edmund S. Pawelec Richard L. Placey, Esq. William Campbell Ries, Esq. Bruce A. Rosenfield, Esq. Pam H. Schneider, Esq. Dean John J. Sciullo K. L. Shirk Jr., Esq. Regina O. Thomas, Esq. Donald R. Waisel, Esq. Edward M. Watters III, Esq. Honorable Lawrence E. Wood C. Thomas Work, Esq. Honorable Vincent X Yakowicz Honorable Paul R. Zavarella -vi-

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7 March 1998 TO THE MEMBERS OF THE GENERAL ASSEMBLY: The Joint State Government Commission is pleased to present the report of the Task Force and Advisory Committee on Decedents' Estates Laws. This report includes a recommended health care power of attorney statute, prudent investor rule and other proposed amendments with official comments. For over 50 years, the members of the task force and advisory committee have worked to ensure that our probate laws are among the most modern and efficient in the nation. Respectfully submitted, Roger A. Madigan Chairman -viii-

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9 TABLE OF CONTENTS INTRODUCTION... 1 HEALTH CARE DECISION-MAKING PROPOSAL... 5 PRUDENT INVESTOR RULE OTHER RECOMMENDATIONS x-

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11 INTRODUCTION This is the twelfth report of the Joint State Government Commission Task Force and Advisory Committee on Decedents' Estates Laws since the June 30, 1972 codification of the Probate, Estates and Fiduciaries Code as Title 20 of the Pennsylvania Consolidated Statutes. At its February 9, 1998 meeting, the task force authorized the introduction of legislation recommended by the advisory committee. The legislation would make technical and substantive amendments to Titles 20 and 15, including the addition of a chapter statutorily authorizing comprehensive health care powers of attorney and the addition of a chapter incorporating the prudent investor rule. The legislation and the official comments of the advisory committee are set forth on the following pages. The official comments may be utilized in determining the intent of the General Assembly. See 1 Pa.C.S and In re Martin=s Estate, 365 Pa. 280, 74 A.2d 120 (1950). -1-

12 HEALTH CARE DECISION-MAKING PROPOSAL The recommended legislation would: -- Amend and restructure present Chapter 54 of Title 20 in order to incorporate all health care decision-making provisions into Chapter Statutorily authorize comprehensive health care powers of attorney and provide a framework for their operation. -- Permit a principal to provide in a health care power of attorney for a health care agent to make all health care decisions for the principal, including those concerning life-sustaining treatment. -- Provide that a family member could serve as a health care representative in order to make health care decisions, including life-sustaining treatment decisions, for an individual who does not have an effective health care power of attorney and for whom no guardian of the person to make health care decisions has been appointed. -- Ensure that any life-sustaining treatment decision made by the health care agent or health care representative is subject to the applicable provisions of the Advance Directive for Health Care Act. -- Permit a principal, irrespective of mental or physical capacity, to countermand individual health care decisions made by a health care agent or health care representative without affecting the authority to make other health care decisions for the principal. -- Repeal the optional declaration form under the Advance Directive for Health Care Act. PRUDENT INVESTOR RULE The recommended legislation would: -- Enact, as Chapter 72 of Title 20, the Prudent Investor Rule modeled after the Uniform Prudent Investor Act. -2-

13 -- Retain present Chapter 73 for applicable municipal investments. -- Apply to trustees and guardians. -- Make, by reference, the Prudent Investor Rule applicable to nonprofit corporations. -- Permit fiduciaries (trustees and guardians) to follow any reasonable theory of investing. -- Eliminate all categoric restrictions on types of investments. -- Mandate that fiduciaries reasonably diversify investments. -- Provide that the diversification requirement is not applicable to existing trusts or guardianships. -- Permit a fiduciary to delegate investment and management functions. OTHER PROPOSED AMENDMENTS The recommended legislation would: -- Expand the concept of virtual representation to all judicial proceedings before the Orphans= Court and not just accountings ( 751(6)). -- Increase the value of an irrevocable transfer to the custodian of a minor permitted without court approval from $10,000 to $25,000 ( 5306(c)). -- Enact a trustees= disabling statute ( 7137). -- Permit the separation of trusts without court approval ( 7191). -- Permit charitable trusts ( 8113) and nonprofit corporations (15 Pa.C.S. 5548(c), 5549(c) and 5585(a)) to adopt a spending policy on a Atotal return@ basis. -3-

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15 HEALTH CARE DECISION-MAKING PROPOSAL CHAPTER 54 [ADVANCE DIRECTIVE FOR] HEALTH CARE SUBCHAPTER A PRELIMINARY PROVISIONS Sec Definitions Definitions. The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise: AAttending physician.@ The physician who has primary responsibility for the treatment and care of a declarant or principal. Comment: This definition is derived from the definition of Aattending physician@ in former section 5403 (definitions). The only change is that the phrase Aor principal@ is added in order to make the definition applicable to the entire chapter. -5-

16 An individual who makes a declaration in accordance with Subchapter B (relating to advance directive for health care). Comment: This definition is derived from the definition of Adeclarant@ in former section 5403 (definitions). The only changes are technical in nature. The term Aindividual@ replaces Aperson,@ and ASubchapter B@ replaces Achapter.@ ADeclaration.@ A written document voluntarily executed by the declarant in accordance with Subchapter B (relating to advance directive for health care). Comment: This definition is derived from the definition of Adeclaration@ in former section 5403 (definitions). The only change is technical in nature. The phrase ASubchapter B@ replaces Achapter.@ AHealth care.@ Any care, treatment, service or procedure to maintain, diagnose, treat or provide for physical or mental health, custodial or personal care, including any medication program, therapeutical and surgical procedure and life-sustaining treatment. AHealth care agent.@ An individual designated by a principal in a health care power of attorney. AHealth care decision.@ A decision regarding an individual=s health care, including, but not limited to: (1) Selection and discharge of health care providers and health care institutions. -6-

17 (2) Approval or disapproval of diagnostic tests, surgical procedures and programs of medication. (3) Directions to initiate, continue, withhold or withdraw all forms of life-sustaining treatment, including orders not to resuscitate. AHealth care An institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business. AHealth care power of A writing made by a principal designating an individual to make health care decisions for the principal. AHealth care provider.@ A person who is licensed, certified or otherwise authorized by the laws of this Commonwealth to administer health care in the ordinary course of business or practice of a profession. The term includes personnel recognized under the act of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical Services Act. Comment: This definition is derived from the definition of Ahealth care provider@ in former section 5403 (definitions) and adds the phrase Aor otherwise authorized.@ AHealth care representative.@ An individual authorized under section 5428 (relating to decisions by health care representative) to make health care decisions for a principal. AIncompetent.@ The lack of sufficient capacity for an individual to make or communicate decisions concerning that individual. -7-

18 Comment: This definition is derived from the definition of in former section 5403 (definitions). The only changes are technical in nature. The term replaces and the phrase Athat replaces ALife-sustaining Any medical procedure or intervention that, when administered to a declarant or principal who has been determined to be in a terminal condition or to be permanently unconscious, will serve only to prolong the process of dying or to maintain the individual in a state of permanent unconsciousness. Comment: This definition is derived from the definition of Alifesustaining treatment@ in former section 5403 (definitions) and amended as follows: ALife-sustaining treatment.@ Any medical procedure or intervention that, when administered to [a qualified patient] a declarant or principal, who has been determined to be in a terminal condition or to be permanently unconscious, will serve only to prolong the process of dying or to maintain the [patient] individual in a state of permanent unconsciousness. [Life-sustaining treatment shall include nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means if the declaration of the qualified patient so specifically provides.] The last sentence of the definition is repealed, since it is inconsistent with the holding of In re Fiori, 543 Pa. 592, 673 A.2d 905 (1996). The repealed language imposes a more stringent standard for the exercise of an individual=s right to refuse artificial nutrition and hydration by requiring that an advance directive specifically reference that it applies to such care. However, the Supreme Court in Fiori recognized artificial nutrition and hydration as medical treatment. Fiori, 673 A.2d at 908 (note 2). Consequently, the court analyzed an individual=s -8-

19 right to refuse such care using the same standards applicable to other types of medical care. Id. at The reference to is added in order to make the definition of Alife-sustaining applicable to the entire chapter. In addition, the term Aqualified is deleted from this definition because the definition and use of that term is deleted from the chapter. However, the substance of that term is contained within the definition of Alife-sustaining The term Aqualified under former section 5403 had been defined as Aa person who has executed a declaration and who has been determined to be in a terminal condition or to be permanently unconscious.@ AMedical command physician.@ A licensed physician who is authorized to give medical command under the act of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical Services Act. Comment: This definition is derived without change from the definition of Amedical command physician@ in former section 5403 (definitions). APermanently unconscious.@ A medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a permanent vegetative state or irreversible coma. Comment: This definition is derived from the definition of Apermanently unconscious@ in former section 5403 (definitions). The only change is that the term Apermanent@ replaces Apersistent,@ consistent with current medical terminology. See, e.g., footnote 1 of In re Fiori, 543 Pa. 592, 673 A.2d 905 (1996), -9-

20 quoting the Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State (Pts. 1 and 2), 330 New Eng. J. Med (1994). In that article published by the New England Journal of Medicine, a distinction was drawn between a Apersistent@ and Apermanent@ vegetative state. A Apersistent vegetative state@ was defined as A[a] wakeful unconscious state that lasts longer than a few weeks,@ whereas a Apermanent vegetative state@ was characterized by an Airreversible state.@ APerson.@ Any individual, corporation, partnership, association or other similar entity, or any Federal, State or local government or governmental agency. Comment: This definition is derived from the definition of Aperson@ in former section 5403 (definitions). The only change is that the phrase Aor other similar entity@ is added after the term Aassociation.@ APrincipal.@ An individual who executes a health care power of attorney, who designates an individual to act or disqualifies an individual from acting as a health care representative, or an individual for whom a health care representative is acting. ATerminal condition.@ An incurable and irreversible medical condition in an advanced state which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of whether life-sustaining treatment would prolong the individual=s life. Comment: This definition is derived from the definition of Aterminal condition@ in former section 5403 (definitions) and amended as follows: -10-

21 ATerminal An incurable and irreversible medical condition in an advanced state [caused by injury, disease or physical illness] which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of [the continued application of life-sustaining treatment] whether life-sustaining treatment would prolong the individual=s life. These amendments are made for clarification purposes only. There is no intent to change the substance of this definition. The language of the deleted last clause suggests that an individual does not have a terminal condition if life-sustaining treatment could keep the individual alive. The added language is intended to clarify that ambiguity. SUBCHAPTER B ADVANCE DIRECTIVE FOR HEALTH CARE [5401] Short title of [chapter] subchapter. This [chapter] subchapter shall be known and may be cited as the Advance Directive for Health Care Act. [5402] Legislative findings and intent. (a) Findings.--The General Assembly finds that all competent adults have a qualified right to control decisions relating to their own medical care. This right is subject to certain interests of society, such as the maintenance of ethical standards in the medical profession and the preservation and -11-

22 protection of human life. Modern medical technological procedures make possible the prolongation of human life beyond natural limits. The application of some procedures to an individual suffering a difficult and uncomfortable process of dying may cause loss of patient dignity and secure only continuation of a precarious and burdensome prolongation of life. (b) Intent.--Nothing in this [chapter] subchapter is intended to condone, authorize or approve mercy killing, euthanasia or aided suicide or to permit any affirmative or deliberate act or omission to end life other than as defined in this [chapter] subchapter. Furthermore, this [chapter] subchapter shall create no presumption concerning the intent of any person who has not executed a declaration to consent to the use or withholding of life-sustaining procedures in the event of a terminal condition or a state of permanent unconsciousness. [ Definitions. The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise: AAttending physician.@ The physician who has primary responsibility for the treatment and care of the declarant. ADeclarant.@ A person who makes a declaration in accordance with this chapter. -12-

23 A written document voluntarily executed by the declarant in accordance with this chapter. AHealth care provider.@ A person who is licensed or certified by the laws of this Commonwealth to administer health care in the ordinary course of business or practice of a profession. The term includes personnel recognized under the act of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical Services Act. AIncompetent.@ The lack of sufficient capacity for a person to make or communicate decisions concerning himself. ALife-sustaining treatment.@ Any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. Life-sustaining treatment shall include nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means if the declaration of the qualified patient so specifically provides. AMedical command physician.@ A licensed physician who is authorized to give medical command under the act of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical Services Act. APermanently unconscious.@ A medical condition that has been diagnosed in accordance with currently accepted medical standards and with -13-

24 reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma. APerson.@ An individual, corporation, partnership, association or Federal, State or local government or governmental agency. AQualified patient.@ A person who has executed a declaration and who has been determined to be in a terminal condition or to be permanently unconscious. ATerminal condition.@ An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of the continued application of life-sustaining treatment.] Comment: These definitions have been incorporated into Subchapter A (section 5401). However, the definition of Aqualified patient@ is eliminated, and the substance of that definition is incorporated into the following sections: section 5401 (definition of Alife-sustaining treatment@), section 5407(a) (liability; general rule) and section 5410(a) (effect on suicide and life insurance; criminal effect). The deletion of the phrase Aqualified patient@ is only editorial in nature and is not intended to alter the substance conveyed by that phrase Declaration. (a) Execution.--An individual of sound mind who is 18 years of age or older or who has graduated from high school or has married may execute [at -14-

25 any time] a declaration governing the initiation, continuation, withholding or withdrawal of life- sustaining treatment. The declaration [must] shall be signed and dated by the declarant by signature or mark, or by another on behalf of and at the direction of the declarant[, and must]. If the declaration is executed by mark or by another individual, then it shall be witnessed by two individuals each of whom is 18 years of age or older. A witness shall not be the [person] individual who signed the declaration on behalf of and at the direction of the declarant. Neither a health care provider nor its agent shall sign a declaration on behalf of and at the direction of the declarant if that health care provider or agent provides health care services to the declarant. Comment: Subsection (a) is amended in order to make the execution requirements for a declaration the same as those for a health care power of attorney under section 5422(b) (execution of health care power of attorney). Subsection (a), as amended, provides that the declarant may execute a declaration without any witness requirement. However, witnesses are required when the declaration is executed by mark or by another individual at the direction of the declarant. Furthermore, subsection (a), as amended, prohibits a health care provider, or anyone acting on its behalf, from signing a declaration for the declarant if the declarant receives health care services from such provider. The intent of this provision is to avoid potential conflicts of interest for a health care provider. (b) Form.--A declaration may [but need not be in the following form] be in any written form expressing the wishes of the declarant regarding the -15-

26 initiation, continuation, withholding or withdrawal of life-sustaining treatment and may include other specific directions, including, but not limited to, designation of another [person] individual to make the treatment decision for the declarant if the declarant is incompetent and is determined to be in a terminal condition or to be permanently unconscious. [DECLARATION I,, being of sound mind, willfully and voluntarily make this declaration to be followed if I become incompetent. This declaration reflects my firm and settled commitment to refuse life-sustaining treatment under the circumstances indicated below. I direct my attending physician to withhold or withdraw life-sustaining treatment that serves only to prolong the process of my dying, if I should be in a terminal condition or in a state of permanent unconsciousness. I direct that treatment be limited to measures to keep me comfortable and to relieve pain, including any pain that might occur by withholding or withdrawing life-sustaining treatment. In addition, if I am in the condition described above, I feel especially strong about the following forms of treatment: I ( ) do ( ) do not want cardiac resuscitation. I ( ) do ( ) do not want mechanical respiration. -16-

27 I ( ) do ( ) do not want tube feeding or any other artificial or invasive form of nutrition (food) or hydration (water). I ( ) do ( ) do not want blood or blood products. I ( ) do ( ) do not want any form of surgery or invasive diagnostic tests. I ( ) do ( ) do not want kidney dialysis. I ( ) do ( ) do not want antibiotics. I realize that if I do not specifically indicate my preference regarding any of the forms of treatment listed above, I may receive that form of treatment. Other instructions: I ( ) do ( ) do not want to designate another person as my surrogate to make medical treatment decisions for me if I should be incompetent and in a terminal condition or in a state of permanent unconsciousness. Name and address of surrogate (if applicable): Name and address of substitute surrogate (if surrogate designated above is unable to serve): I ( ) do ( ) do not want to make an anatomical gift of all or part of my body, subject to the following limitations, if any: I made this declaration on the day of (month, year). Declarant's signature: Declarant's address: -17-

28 The declarant or the person on behalf of and at the direction of the declarant knowingly and voluntarily signed this writing by signature or mark in my presence. Witness's signature: Witness's address: Witness's signature: Witness's address:] Comment: The form set forth in subsection (b), which provides a checklist of treatment options, is repealed as it invites a declarant to engage in self-diagnosis by choosing future treatment options, without fully considering the medical consequences of those choices. Such a declaration may be made long before the onset of a serious illness which would effectuate the declaration, thereby potentially making the declaration counter-productive to the declarant. Although the repealed form is not mandatory, its inclusion is too often misconstrued as a de facto mandate that the form be used. The checklist of treatment options contained in the form fails to recognize that medical treatment can be merely life-sustaining in one instance, but beneficial in another. For example, surgery, one of the check-off categories, is sometimes appropriate to make an individual with a terminal condition more comfortable. However, an individual, who uses the form and checks off surgery as a treatment option, removes surgery as a beneficial treatment option, perhaps without truly understanding the potential consequences of checking off that option. Therefore, there should be no prescribed or preferred form of the declaration because the declaration should be tailored to meet the declarant=s individual circumstances, preferably after consultation with a physician. -18-

29 Although there is no prescribed or preferred form for the declaration, a declarant may include the following directions in a declaration: (1) To initiate, continue, withhold or withdraw lifesustaining treatment. (2) To limit treatment to measures that keep the declarant comfortable and relieve pain, including any pain that might occur by withholding or withdrawing lifesustaining treatment. (3) To provide for specific forms of treatment. (4) To designate another individual to make lifesustaining treatment decisions if the declarant is incompetent and in a terminal condition or state of permanent unconsciousness. (5) To provide for the making of an anatomical gift of all or part of the declarant=s body. (c) Invalidity of specific direction.--should any specific direction in the declaration be held to be invalid, the invalidity shall not [offset] negate other directions of the declaration which can be effected without the invalid direction. (d) Medical record.--a physician or other health care provider [who is furnished] to whom a copy of the declaration is furnished shall make it a part of the declarant's medical record and, if unwilling to comply with the declaration, promptly so advise the declarant When declaration becomes operative. A declaration becomes operative when: -19-

30 (1) a copy is provided to the attending physician; and (2) the declarant is determined by the attending physician to be incompetent and in a terminal condition or in a state of permanent unconsciousness. When the declaration becomes operative, the attending physician and other health care providers shall act in accordance with its provisions or comply with the transfer provisions of section 5409 (relating to unwillingness to comply[;] and transfer of declarant) Revocation. (a) General rule.--a declaration may be revoked at any time and in any manner by the declarant without regard to the declarant's mental or physical condition. A revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation. (b) Medical record.--the attending physician or other health care provider shall make the revocation a part of the declarant's medical record Liability. (a) General rule.--no physician or other health care provider who, consistent with this [chapter] subchapter, causes or participates in the initiating, continuing, withholding or withdrawal of life-sustaining treatment from a [qualified patient] declarant who has been determined to be in a -20-

31 terminal condition or to be permanently unconscious and who is incompetent shall, as a result thereof, be subject to criminal or civil liability or be found to have committed an act of unprofessional conduct if the attending physician has followed the declarant's wishes as expressed earlier by the declarant in the form of a declaration executed pursuant to this [chapter] subchapter. (b) Absence of declaration.--the absence of a declaration by a patient shall not give rise to any presumption as to the intent of the patient to consent to or to refuse the initiation, continuation [or termination], withholding or withdrawal of life-sustaining treatment. Comment: The amendment to subsection (a) is technical in nature as it incorporates the substance of the repealed definition of Aqualified patient.@ Duty of physician to confirm terminal condition. For purposes of section 5405 (relating to when declaration becomes operative), an attending physician shall, without delay after the diagnosis that the declarant is in a terminal condition or in a state of permanent unconsciousness, certify in writing that the declarant is in a terminal condition or in a state of permanent unconsciousness and arrange for the physical examination and confirmation of the terminal condition or state of permanent unconsciousness of the declarant by a second physician. -21-

32 5409. Unwillingness to comply[;] and transfer of declarant. (a) Attending physician or health care provider.--if an attending physician or other health care provider cannot in good conscience comply with a declaration or if the policies of the health care provider preclude compliance with a declaration, the attending physician or health care provider shall so inform the declarant, or, if the declarant is incompetent, shall so inform the [declarant's surrogate] individual designated in the declaration to make lifesustaining treatment decisions for the declarant, or, if [a surrogate] such an individual is not named in the declaration, shall so inform the family, guardian or other representative of the declarant. The attending physician or health care provider shall make every reasonable effort to assist in the transfer of the declarant to another physician or health care provider who will comply with the declaration. (b) Employee or staff member of health care provider.--an employee or staff member of a health care provider shall not be required to participate in the withholding or withdrawal of life-sustaining treatment. It shall be unlawful for an employer to discharge or in any other manner to discriminate against an employee or staff member who informs the employer [that he does not] of a wish not to participate in the withholding or withdrawal of life-sustaining treatment. The employer may require the employee or staff member to express [his] such wishes in writing. -22-

33 (c) Liability.--If transfer under subsection (a) is not possible, the provision of life-sustaining treatment to a declarant shall not subject a health care provider to criminal or civil liability or administrative sanction for failure to carry out the provisions of a declaration. Comment: The amendment to subsection (a) is technical in nature and only removes the term Asurrogate.@ It is consistent with section 5404(b) Effect on suicide and life insurance. (a) Criminal effect.--the withholding or withdrawal of life-sustaining treatment from a [qualified patient] declarant who has been determined to be in a terminal condition or to be permanently unconscious in accordance with the provisions of this [chapter] subchapter shall not, for any purpose, constitute suicide or homicide. (b) Life insurance.--the making of or failure to make a declaration in accordance with this [chapter] subchapter shall not affect in any manner the sale, procurement or issuance of any policy of life insurance nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining treatment from an insured patient, notwithstanding any term of the policy to the contrary. Comment: The amendment to subsection (a) is technical in nature as it incorporates the substance of the repealed definition of Aqualified patient.@ -23-

34 5411. Declaration optional. No physician or other health care provider and no health care service plan, health maintenance organization, insurer issuing disability insurance, self-insured employee welfare benefit plan, nonprofit hospital plan or Federal, State or local government sponsored or operated program shall: (1) require any [person] individual to execute a declaration as a condition for being insured for or receiving health care services; or (2) charge any [person] individual a different rate or fee whether or not the [person] individual executes or has executed a declaration Preservation of existing rights. The provisions of this [chapter] subchapter shall not impair or supersede any existing rights or responsibilities not addressed in this [chapter] subchapter Emergency medical services. (a) Care given prior to declaration taking effect.--nothing in this [chapter] subchapter shall be construed to make the provisions of a declaration apply to care given to a patient by emergency medical services personnel prior to the declaration's becoming operative under sections 5405 (relating to when declaration becomes operative) and 5408 (relating to duty of physician to confirm terminal condition). -24-

35 (b) Care given after declaration takes effect.--the provisions of a declaration shall apply to care given to a patient by emergency medical services personnel after the declaration becomes operative under sections 5405 and 5408 only if: (1) an original declaration, signed by the declarant or other authorized person, is presented to the emergency medical services personnel. The emergency medical services personnel must immediately notify the medical command physician of the presence of the declaration; or (2) the medical command physician, based on prior notification by the attending physician or other health care provider that a valid and operative declaration exists, directs the emergency medical service personnel according to the provisions of the declaration. (c) Uncertainty regarding validity of declaration.--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 Pregnancy. (a) General rule.--notwithstanding the existence of a declaration or direction to the contrary, life-sustaining treatment, nutrition and hydration must be provided to a pregnant woman who is incompetent and has a -25-

36 terminal condition or who is permanently unconscious unless, to a reasonable degree of medical certainty as certified on the patient's medical record by the attending physician and an obstetrician who has examined the patient, life-sustaining treatment, nutrition and hydration: (1) will not maintain the pregnant woman in such a way as to permit the continuing development and live birth of the unborn child; (2) will be physically harmful to the pregnant woman; or (3) would cause pain to the pregnant woman which cannot be alleviated by medication. (b) Pregnancy test.--nothing in this section shall require a physician to perform a pregnancy test unless the physician has reason to believe that the woman may be pregnant. (c) Payment of expenses by Commonwealth.-- (1) In the event that treatment, nutrition and hydration are provided to a pregnant woman who is incompetent and has a terminal condition or who is permanently unconscious, notwithstanding the existence of a declaration or direction to the contrary, the Commonwealth shall pay all usual, customary and reasonable expenses directly and indirectly incurred by the pregnant woman to whom such treatment, nutrition and hydration are provided. -26-

37 (2) The Commonwealth shall have the right of subrogation against all moneys paid by any third-party health insurer on behalf of the pregnant woman. (3) The expenditures incurred on behalf of the pregnant woman shall constitute a grant and no lien shall be placed upon the property of the pregnant woman, her estate or her heirs Penalties. Any person who willfully conceals, cancels, alters, defaces, obliterates or damages the declaration of another without the consent of the declarant commits a felony of the third degree. Any person who falsifies or forges the declaration of another, or willfully conceals or withholds personal knowledge of a revocation as provided in section 5406 (relating to revocation), with the intent to cause a withholding or withdrawal of life-sustaining treatment contrary to the wishes of the declarant and, because of such an act, directly causes life-sustaining treatment to be withheld or withdrawn and death to be hastened shall be subject to prosecution for criminal homicide as provided in 18 Pa.C.S. Ch. 25 (relating to criminal homicide). Any person who willfully, by undue influence, fraud or duress, causes a person to execute a declaration pursuant to this [chapter] subchapter commits a felony of the third degree. [ Severability. -27-

38 The provisions of this chapter are severable, and, if any word, phrase, clause, sentence, section or provision of the chapter is for any reason held to be unconstitutional, the decision of the court shall not affect or impair any of the remaining provisions of this chapter. It is hereby declared as the legislative intent that this chapter would have been adopted had such unconstitutional word, phrase, clause, sentence, section or provision thereof not been included herein.] Sec. Comment: This section is deleted because its substance is contained in 1 Pa.C.S (relating to constitutional construction of statutes). SUBCHAPTER C HEALTH CARE AGENTS AND REPRESENTATIVES 5421.Short title of subchapter General provisions Form of health care power of attorney Countermand, amendment and revocation Operation of health care power of attorney Appointment of health care agents Relation of health care agent to court-appointed guardian and other agents Decisions by health care representative. -28-

39 5429.Duties of attending physician and health care provider Limitations on liability Unwillingness to comply and transfer of principal Effect on life insurance Conditioning services or action Criminal penalties Effect on other State law Conflicting health care powers of attorney Validity Short title of subchapter. This subchapter shall be known and may be cited as the Health Care Agents and Representatives Act General provisions. (a) Who may execute a health care power of attorney.--an individual of sound mind who is 18 years of age or older or has graduated from high school or has married may execute a health care power of attorney. (b) Execution.--A health care power of attorney shall be signed and dated by the principal by signature or mark, or by another on behalf of and at the direction of the principal. If the health care power of attorney is executed by mark or by another individual, then it shall be witnessed by two individuals, each of whom is 18 years of age or older. A witness shall not be the -29-

40 individual who signed the health care power of attorney on behalf of and at the direction of the principal. Neither a health care provider nor its agent shall sign a health care power of attorney on behalf of and at the direction of the principal if that health care provider or agent provides health care services to the principal. Comment: Subsection (a) describes those individuals who may execute a health care power of attorney. The execution requirements for a health care power of attorney are the same as those for a declaration under section 5404(a) (execution of declaration). There is a presumption of sound mind to execute a health care power of attorney, absent clear evidence to the contrary. A health care provider, in good faith, can rely on the presumption of a principal=s sound mind. Subsection (b) provides that the principal may execute a health care power of attorney without any witness requirement, consistent with Chapter 56 (Powers of attorney), which does not require witnesses for a general power of attorney executed by the principal. However, witnesses are required when the health care power of attorney is executed by mark or by another individual on behalf of and at the direction of the principal. Subsection (b) prohibits a health care provider, or anyone acting on its behalf, from signing a health care power of attorney for the principal if the principal receives health care services from such provider. The intent of this provision is to avoid potential conflicts of interest for a health care provider. Finally, it should be noted that this section does not require notarization for a health care power of attorney to be effective Form of health care power of attorney. (a) Requirements.--A health care power of attorney shall: (1) Identify the principal and appoint the health care agent. -30-

41 (2) Declare that the principal authorizes the health care agent to have authority 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 the limitations, if any, 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) Disqualify an individual from acting as a health care representative, prohibit the appointment of a health care representative or provide for an order of priority of appointment of a health care representative pursuant to section 5428(c) (relating to decisions by health care representative). (4) Nominate a guardian of the person of the principal as provided in section 5427(b) (relating to relation of health care agent to courtappointed guardian and other agents). (5) Contain other provisions as the principal may specify regarding the implementation of health care decisions and related actions by the health care agent. (c) Invalidity of specific direction.--should any specific direction in the health care power of attorney be held to be invalid, the invalidity shall not -31-

42 negate other directions of the health care power of attorney which can be effected without the invalid direction. Comment: Since the execution requirements for a health care power of attorney are consistent with those for an advance directive for health care, these intentions could be expressed in a single document. There is no prescribed or preferred health care power of attorney form because the health care power of attorney should be tailored to meet the principal=s individual circumstances. A health care power of attorney can be adapted to embody the choices offered by this subchapter: (1) successor health care agents can be named; (2) multiple health care agents can act together; (3) the health care power of attorney can be effective immediately; (4) the power of attorney can state that it terminates at a certain time; and (5) most important, particular choices about health care, including life-sustaining treatment, can be made. Subsection (c) is patterned after section 5404(c) (relating to declaration; invalidity of specific direction) Countermand, amendment and revocation. (a) Countermand of health care decision.--a principal may countermand a health care decision made by the principal's health care agent at any time and in any manner without regard to the principal's mental or physical capacity by personally informing the attending physician or health care provider. The attending physician or health care provider shall make reasonable efforts to inform promptly the health care agent of the countermand. A countermand shall not affect the authority of the health care agent to make other health care decisions in accordance with the health care power of attorney. -32-

43 (b) Amendment.--A principal while of sound mind may amend a health care power of attorney by a writing executed in accordance with the provisions of section 5422(b) (relating to general provisions). An amendment may include the revocation in part of the health care power of attorney or the designation of new or additional health care agents. (c) Divorce.--If the principal=s spouse is designated as the principal=s health care agent and thereafter either spouse files an action in divorce, the designation of the spouse as health care agent shall be deemed revoked as of the time the action is filed, unless it clearly appears from the health care power of attorney that the designation was intended to continue to be effective notwithstanding the filing of an action in divorce by either spouse. (d) Revocation.--A principal while of sound mind may revoke a health care power of attorney by a writing executed in accordance with the provisions of section 5422(b) or by personally informing the attending physician, health care provider or health care agent that the health care power of attorney is revoked. (e) Effect of revocation.--a physician or other health care provider may rely on the effectiveness of a health care power of attorney unless notified of its revocation. A health care agent, knowing of the revocation, shall not make or attempt to make health care decisions for the principal. -33-

44 Comment: Subsection (a) permits the principal, irrespective of mental or physical capacity, to countermand individual health care decisions made by a health care agent without affecting the authority of the agent to make other health care decisions for the principal. This subsection recognizes the underlying policy consideration of individual autonomy. Subsection (c) provides that the filing of a divorce action revokes the designation of a spouse as a health care agent, unless it clearly appears that the designation was intended to continue notwithstanding such filing. Subsection (d) provides two methods of revocation. A principal may revoke a health care power of attorney either (1) by a writing or (2) orally by personally informing the attending physician, health care provider or health care agent of the revocation. Subsection (e) incorporates three important concepts. First, it provides a degree of certainty for physicians or other health care providers by permitting them to rely on a health care power of attorney until notified of its revocation. Second, it does not foreclose the ability of physicians or other health care providers to challenge the validity of a health care power of attorney, if, for example, they have reason to believe that the health care power of attorney was forged. Finally, subsection (e) prohibits a health care agent from acting under a health care power of attorney if that agent knows of its revocation Operation of health care power of attorney. (a) When operative.--unless specifically provided otherwise in the health care power of attorney, a health care power of attorney becomes operative when a copy of the health care power of attorney is provided to the attending physician and the attending physician determines that the principal is unable to make or communicate health care decisions and becomes inoperative -34-

45 during such time as, in the determination of the attending physician, the principal is able to make and communicate health care decisions. (b) Duration.--Unless the health care power of attorney states a time of termination, it is valid until revoked by the principal or the principal=s guardian of the person, notwithstanding the lapse of time since its execution. Unless specifically provided otherwise in the health care power of attorney, a health care power of attorney becomes inoperative during such time as, in the determination of the attending physician, the principal has the ability to make and communicate health care decisions. (c) Extent of authority of agent.--except as expressly provided otherwise in a health care power of attorney, and subject to subsection (d), a health care agent shall have the authority to make any and all health care decisions and to exercise any and all rights and powers concerning the principal's care, custody and health care treatment that the principal could have made and exercised. (d) Life-sustaining treatment decisions.--all life-sustaining treatment decisions made by a health care agent shall be subject to sections 5405 (relating to when declaration becomes operative), 5408 (relating to duty of physician to confirm terminal condition) and 5414 (relating to pregnancy). (e) Health care decisions.--after consultation with health care providers, and after consideration of the prognosis and acceptable medical alternatives -35-