Whether known as Health Care Directives, Advanced Directives, health care power of attorney, or Living Wills, these documents should provide for the following: (1) the nomination of an agent to make health care decisions on behalf of the individual; and (2) health instructions the agent should take on the individual’s behalf when its determined that the individual no longer has the capacity to make their own health care decisions in regards to day-to-day living or in an end-stage medical event.
Without a valid health care directive, Pennsylvania law provides a descending order of priority of those who can make health care decisions. Those individuals are as follows:
- The individual’s spouse (unless a divorce action is spending)
- The individual’s adult child
- The individual’s parent
- The individual’s adult brother or sister
- The individuals adult grandchild
- An adult who has knowledge of the individual’s preferences and values.
- Medical Facility Director
In addition, without a valid health care directive any decision to withdraw treatment or life-sustaining care for a person who is not competent and who has an end-stage medical condition or is permanently unconscious must be authorized by a Court. Pennsylvania law does not allow a presumption to arise regarding an individual’s intent to consent to or refuse the initiation, continuation, withholding or withdrawal of life-sustaining treatment. This is why its vital to include a health care directive in your estate plan.
The “living will” section of a health care directive provides for the withdrawal of treatment or life-sustaining care. In order for this section to be triggered, two determinations must be made by an individual’s attending physicians. The first, the individual must be considered incompetent. In other words, he is unable to understand the potential material benefits, risks and alternatives involved in a specific proposed health care decisions, cannot make the decision on his own behalf, and cannot communicate that decision to any other person. Second, it must be determined that the individual has either an “end-stage medical condition” or is “permanently unconsciousness.” These terms are statutory defined as follows:
An “end-stage medical condition” is an incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, results in death, despite the introduction or continuation of medical treatment.
“Permanently unconscious” is 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, an irreversible vegetative state or irreversible coma.