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All adults have the right to control their own medical care, including treatments which only prolong the process of dying. This is normally exercised by competent patients themselves.

Many patients are no longer able to make health care decisions directly. Pennsylvania law now recognizes four distinct types of documents which can be executed in advance to provide a mechanism for health care decision making when the patient no longer can. There is a fifth process available for persons who have not formally specified their wishes in advance.

Health Care Powers of Attorney

These instruments permit each individual to name another person (or persons) who will have the power to make health care decisions at any time when the patient cannot do. In order to be effective it must contain clear language indicating that it is to be used for such purposes, there are specific provisions that should be included, and the document must be witnessed in accordance with specific statutory requirements. Many powers of attorney found on the internet or “self help” books do not meet those requirements. There is a form suggested by the Legislature, but so long as the statutory requirements are met, a health care POA may be customized for the patient’s wishes.

Living Wills

Any document which expresses the “end of life” wishes of the patient may become a Living Will if it is properly witnessed. As with health care powers of attorney, no particular form is mandated by the law, although the health care POA form authorized by the legislature contains living will language, and many offices combine Health Care POAs with living wills. Living wills may give guidance to the agent or may absolutely control the agent. Pennsylvania has special rules for dementia and for artificial nutrition and hydration feeding that are not covered in most Internet or self help book forms. A living will can be executed even though no health care power has been given, although typically both are executed in one document or at the same time.

Pennsylvania Orders for Life Sustaining Treatment

These very specialized documents, called “POLST”, are executed by the patient’s doctor dealing specifically with the problem of paramedics having to resuscitate patients in virtually every circumstance. A patient who does not wish certain treatment in the field may have a POLST prepared and it will authorize paramedics and emergency room physicians to forego the administration of CPR, defibrillation or the insertion of tubes, among other things. The directive must be in the form authorized by the legislation. The POLST process may include a separate “Do Not Resuscitate” order (DNR).

Mental Health Powers of Attorney

In addition general medical decisions, patients can give that same person (or another) the power to make mental health treatment decisions. Among the powers a mental health care agent can be given is the authority to authorize placement in a locked psychiatric treatment facility.

Health Care Representatives

For persons who have not executed any of these documents, the Legislature has authorized certain persons to make health care decisions for a person who is unable to express his or her wishes, called “Health Care Representatives”. The first priority class is the person’s spouse (unless a divorce action is pending) and the adult children of a prior marriage. There are lower priority classes, ranging from all adult children down to any person who has knowledge of the patient’s wishes. An unmarried partner would be in this lowest class and would not be allowed to make a decision if there were higher priority class members available. Thus the orders of an estranged brother would supersede those of a lifelong, unmarried partner.

Unless expressions of the patient’s intent are available, a health care agent or representative should make decisions conforming to the patient’s preferences and values, including religious and moral beliefs, if they can be determined, or based on an assessment of the patient’s best interests if they cannot. There are specific rules establishing a higher standard for withholding of nutrition and hydration.

 

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