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                                 SENATE AMENDED
        PRIOR PRINTER'S NOS. 2739, 4166, 4270,        PRINTER'S NO. 4779
        4383, 4723

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 2036 Session of 2003


        INTRODUCED BY KENNEY, KOTIK, PAYNE, BEBKO-JONES, BELFANTI,
           BENNINGHOFF, BUNT, CORRIGAN, COY, CURRY, DeWEESE, D. EVANS,
           FLEAGLE, GEIST, HARHAI, HARHART, HERMAN, HESS, JAMES, KELLER,
           KIRKLAND, LEACH, MACKERETH, MAITLAND, McGEEHAN, McGILL,
           MUNDY, MYERS, NICKOL, O'NEILL, PALLONE, REICHLEY, ROSS,
           SANTONI, SATHER, SEMMEL, SOLOBAY, STURLA, J. TAYLOR, THOMAS,
           TIGUE, TRUE, VANCE, WALKO, WATSON, WEBER, YOUNGBLOOD,
           GOODMAN, GANNON, E. Z. TAYLOR, BROWNE, OLIVER, RUBLEY,
           DeLUCA, JOSEPHS, HORSEY, SAINATO, WILT, WASHINGTON, BISHOP
           AND GERGELY, OCTOBER 8, 2003

        AS AMENDED ON SECOND CONSIDERATION, IN SENATE, NOVEMBER 18, 2004


                                     AN ACT

     1  Amending Title 20 (Decedents, Estates and Fiduciaries) of the
     2     Pennsylvania Consolidated Statutes, providing for mental
     3     health care declarations and powers of attorney; FURTHER       <--
     4     PROVIDING FOR THE PRUDENT INVESTOR RULE; AND REPEALING
     5     PROVISIONS RELATING TO THE APPLICABILITY OF REQUIREMENTS FOR
     6     CHARITABLE TRUSTS WITH CONTROLLING INTERESTS IN CERTAIN
     7     CORPORATIONS.

     8     The General Assembly of the Commonwealth of Pennsylvania
     9  hereby enacts as follows:
    10     Section 1.  Title 20 of the Pennsylvania Consolidated
    11  Statutes is amended by adding a chapter to read:
    12                             CHAPTER 58
    13                         MENTAL HEALTH CARE
    14  Subchapter
    15     A.  General Provisions

     1     B.  Mental Health Declarations
     2     C.  Mental Health Powers of Attorney
     3                            SUBCHAPTER A
     4                         GENERAL PROVISIONS
     5  Sec.
     6  5801.  Applicability.
     7  5802.  Definitions.
     8  5803.  Legislative findings and intent.
     9  5804.  Compliance.
    10  5805.  Liability.
    11  5806.  Penalties.
    12  5807.  Rights and responsibilities.
    13  5808.  Combining mental health care instruments.
    14  § 5801.  Applicability.
    15     (a)  General rule.--This chapter applies to mental health
    16  declarations and mental health powers of attorney.
    17     (b)  Preservation of existing rights.--The provisions of this
    18  chapter shall not be construed to impair or supersede any
    19  existing rights or responsibilities not addressed in this
    20  chapter.
    21  § 5802.  Definitions.
    22     The following words and phrases when used in this chapter
    23  shall have the meanings given to them in this section unless the
    24  context clearly indicates otherwise:
    25     "Attending physician."  A physician who has primary
    26  responsibility for the treatment and care of the declarant or
    27  principal.
    28     "Declarant."  An individual who makes a declaration in
    29  accordance with this chapter.
    30     "Declaration."  A writing made in accordance with this
    20030H2036B4779                  - 2 -     

     1  chapter that expresses a declarant's wishes and instructions for
     2  mental health care and mental health care directions and which
     3  may contain other specific directions.
     4     "Mental health care."  Any care, treatment, service or
     5  procedure to maintain, diagnose, treat or provide for mental
     6  health, including any medication program and therapeutical
     7  treatment.
     8     "Mental health care agent."  An individual designated by a
     9  principal in a mental health power of attorney.
    10     "Mental health power of attorney."  A writing made by a        <--
    11  principal designating an individual to make mental health care
    12  decisions for the principal.
    13     "Mental health care provider."  A person who is licensed,
    14  certified or otherwise authorized by the laws of this
    15  Commonwealth to administer or provide mental health care in the
    16  ordinary course of business or practice of a profession.
    17     "MENTAL HEALTH POWER OF ATTORNEY."  A WRITING MADE BY A        <--
    18  PRINCIPAL DESIGNATING AN INDIVIDUAL TO MAKE MENTAL HEALTH CARE
    19  DECISIONS FOR THE PRINCIPAL.
    20     "Mental health treatment professional."  A licensed physician
    21  who has successfully completed a residency program in psychiatry
    22  or a person trained and licensed in social work, psychology or
    23  nursing who has a graduate degree and clinical experience in
    24  mental health.
    25     "Principal."  An individual who makes a mental health power
    26  of attorney in accordance with this chapter.
    27  § 5803.  Legislative findings and intent.
    28     (a)  Intent.--This chapter provides a means for competent
    29  adults to control their mental health care either directly
    30  through instructions written in advance or indirectly through a
    20030H2036B4779                  - 3 -     

     1  mental health care agent.
     2     (b)  Presumption not created.--This chapter shall not be
     3  construed to create any presumption regarding the intent of an
     4  individual who has not executed a declaration or mental health
     5  care power of attorney to consent to the use or withholding of
     6  treatment.
     7     (c)  Findings in general.--The General Assembly finds that
     8  all capable adults have a qualified right to control decisions
     9  relating to their own mental health care.
    10  § 5804.  Compliance.
    11     (a)  Duty to comply.--
    12         (1)  An attending physician and mental health care
    13     provider shall comply with mental health declarations and
    14     powers of attorney.
    15         (2)  If an attending physician or other mental health
    16     care provider cannot in good conscience comply with a
    17     declaration or mental health care decision of a mental health
    18     care agent because the instructions are contrary to accepted
    19     clinical practice and medical standards or because treatment
    20     is unavailable or if the policies of a mental health care
    21     provider preclude compliance with a declaration or mental
    22     health care decision of a mental health care agent,
    23     immediately upon receipt of the declaration or power of
    24     attorney, and as soon as any possibility of noncompliance
    25     becomes apparent, the attending physician or mental health
    26     care provider shall so inform the following:
    27             (i)  The declarant, if the declarant is competent.
    28             (ii)  The substitute named in the declaration, if the
    29         declarant is incompetent.
    30             (iii)  The guardian or other legal representative of
    20030H2036B4779                  - 4 -     

     1         the declarant, if the declarant is incompetent and a
     2         substitute is not named in the declaration.
     3             (iv)  The mental health care agent of the principal.
     4         (3)  The physician or mental health care provider shall
     5     document the reasons for noncompliance.
     6     (b)  Transfer.--An attending physician or mental health care
     7  provider under subsection (a)(2) shall make every reasonable
     8  effort to assist in the transfer of the declarant or principal
     9  to another physician or mental health care provider who will
    10  comply with the declaration or mental health care decision of
    11  the mental health care agent. While the transfer is pending, the
    12  patient shall be treated consistent with the advance directive    <--
    13  DECLARATION OR MENTAL HEALTH CARE DECISION OF THE MENTAL HEALTH   <--
    14  AGENT. If reasonable efforts to transfer fail, the patient may
    15  be discharged.
    16  § 5805.  Liability.
    17     (a)  General rule.--A person who is a physician, another
    18  mental health care provider or another person who acts in good
    19  faith and consistent with this chapter may not be subject to
    20  criminal or civil liability, discipline for unprofessional
    21  conduct or administrative sanctions and may not be found to have
    22  committed an act of unprofessional conduct by any professional
    23  board or administrative body with such authority as a result of
    24  any of the following:
    25         (1)  Complying with a direction or decision of an
    26     individual who the person believes in good faith has
    27     authority to act as a principal's mental health care agent so
    28     long as the direction or decision is not clearly contrary to
    29     the terms of the mental health power of attorney.
    30         (2)  Refusing to comply with a direction or decision of
    20030H2036B4779                  - 5 -     

     1     an individual based on a good faith belief that the
     2     individual lacks authority to act as a principal's mental
     3     health care agent.
     4         (3)  Complying with a mental health care power of
     5     attorney or declaration under the assumption that it was
     6     valid when made and has not been amended or revoked.
     7         (4)  Disclosing mental health care information to another
     8     person based upon a good faith belief that the disclosure is
     9     authorized, permitted or required by this chapter.
    10         (5)  Refusing to comply with the direction or decision of
    11     an individual due to conflicts with a provider's contractual,
    12     network or payment policy restrictions.
    13         (6)  Refusing to comply with a mental health directive     <--
    14     DECLARATION OR MENTAL HEALTH POWER OF ATTORNEY which violates  <--
    15     accepted clinical standards or medical standards of care.
    16         (7)  Making a determination that the patient lacks
    17     capacity to make mental health decisions that causes a mental  <--
    18     health advance directive DECLARATION OR A MENTAL HEALTH POWER  <--
    19     OF ATTORNEY to become effective.
    20         (8)  Failing to determine that a patient lacks capacity
    21     to make mental health decisions for the purposes of this act   <--
    22     CHAPTER.                                                       <--
    23     (b)  Same effect as if dealing with principal.--Any attending
    24  physician, mental health care provider and other person who acts
    25  under subsection (a) shall be protected and released to the same
    26  extent as if dealing directly with a competent principal.
    27     (c)  Good faith of mental health care agent.--A mental health
    28  care agent who acts according to the terms of a mental health
    29  power of attorney may not be subject to civil or criminal
    30  liability for acting in good faith for a principal or failing in
    20030H2036B4779                  - 6 -     

     1  good faith to act for a principal.
     2  § 5806.  Penalties.
     3     (a)  Offense defined.--A person commits a felony of the third
     4  degree by willfully:
     5         (1)  Concealing, canceling, altering, defacing,
     6     obliterating or damaging a declaration without the consent of
     7     the declarant.
     8         (2)  Concealing, canceling, altering, defacing,
     9     obliterating or damaging a mental health power of attorney or
    10     any amendment or revocation thereof without the consent of
    11     the principal.
    12         (3)  Causing a person to execute a declaration or power
    13     of attorney under this chapter by undue influence, fraud or
    14     duress.
    15         (4)  Falsifying or forging a mental health power of
    16     attorney or declaration or any amendment or revocation
    17     thereof, the result of which is a direct change in the mental
    18     health care provided to the principal.
    19     (b)  Removal and liability.--An agent who willfully fails to
    20  comply with a mental health power of attorney may be removed and
    21  sued for actual damages.
    22  § 5807.  Rights and responsibilities.
    23     (a)  Declarants and principals.--Persons who execute a
    24  declaration or a mental health power of attorney shall have the
    25  following rights and responsibilities:
    26         (1)  For the purposes of this act CHAPTER, persons are     <--
    27     presumed capable of making mental health decisions, including
    28     the execution of a mental health declaration or power of
    29     attorney, unless they are adjudicated incapacitated,
    30     involuntarily committed or found to be incapable of making
    20030H2036B4779                  - 7 -     

     1     mental health decisions after examination by a psychiatrist
     2     and one of the following: another psychiatrist, psychologist,
     3     family physician, attending physician or mental health
     4     treatment professional. Whenever possible, at least one of
     5     the decision makers shall be a treating professional of the
     6     declarant or principal.
     7         (2)  Persons shall be required to notify their mental
     8     health care provider of the existence of any declaration or
     9     mental health power of attorney.
    10         (3)  Persons shall execute or amend their declarations or
    11     mental health powers of attorney every two years, however if
    12     a person is incapable of making mental heath care decisions
    13     at the time this document would expire, the document shall
    14     remain in effect and be reviewed at the time when the person
    15     regains capacity.
    16         (4)  Persons shall give notice of amendment and
    17     revocation to providers, agents and guardians, if any.
    18     (b)  Providers.--Mental health treatment providers shall have
    19  the following rights and responsibilities:
    20         (1)  Inquire as to the existence of declarations or
    21     powers of attorney for persons in their care.
    22         (2)  Inform persons who are being discharged from
    23     treatment about the availability of mental health
    24     declarations and powers of attorney as part of discharge
    25     planning.
    26         (3)  Not require declarations or powers of attorney as
    27     conditions of treatment. Mental health treatment providers
    28     may not choose whether to accept a person for treatment based
    29     solely on the existence or absence of a mental health
    30     declaration or power of attorney.
    20030H2036B4779                  - 8 -     

     1  § 5808.  Combining mental health instruments.
     2     (a)  General rule.--A declaration and mental health power of
     3  attorney may be combined into one mental health document.
     4     (b)  Form.--A combined declaration and mental health power of
     5  attorney may be in the following form or any other written form
     6  which contains the information required under Subchapters B
     7  (relating to mental health care declarations) and C (relating to  <--
     8  mental health care powers of attorney):                           <--
     9              Combined Mental Health Care Declaration
    10                     and Power of Attorney Form
    11     Part I.  Introduction.
    12     I,               , having capacity to make mental health
    13     decisions, willfully and voluntarily make this declaration
    14     and power of attorney regarding my mental health care.
    15     I understand that mental health care includes any care,
    16     treatment, service or procedure to maintain, diagnose, treat
    17     or provide for mental health, including any medication
    18     program and therapeutic treatment. Electroconvulsive therapy
    19     may be administered only if I have specifically consented to
    20     it in this document. I will be the subject of laboratory
    21     trials or research only if specifically provided for in this
    22     document. Mental health care does not include psychosurgery
    23     or termination of parental rights.
    24     I understand that my incapacity will be determined by
    25     examination by a psychiatrist and one of the following:
    26     another psychiatrist, psychologist, family physician,
    27     attending physician or mental health treatment professional.
    28     Whenever possible, one of the decision makers will be one of
    29     my treating professionals.
    30     Part II.  Mental Health Declaration.
    20030H2036B4779                  - 9 -     

     1     A.  When this declaration becomes effective.
     2     This declaration becomes effective at the following
     3     designated time:
     4     ( ) When I am deemed incapable of making mental health care
     5     decisions.
     6     ( ) When the following condition is met:
     7                          (List condition)
     8     B.  Treatment preferences.
     9         1.  Choice of treatment facility.
    10     ( ) In the event that I require commitment to a psychiatric
    11     treatment facility, I would prefer to be admitted to the
    12     following facility:
    13                 (Insert name and address of facility)
    14     ( ) In the event that I require commitment to a psychiatric
    15     treatment facility, I do not wish to be committed to the
    16     following facility:
    17                 (Insert name and address of facility)
    18     I understand that my physician may have to place me in a
    19     facility that is not my preference.
    20         2.  Preferences regarding medications for psychiatric
    21     treatment.
    22     ( ) I consent to the medications that my treating physician
    23     recommends.
    24     ( ) I consent to the medications that my treating physician
    25     recommends with the following exception, preference or
    26     limitation:
    27     (List medication and reason for exception, preference or
    28     limitation)
    29     The exception, preference or limitation applies to generic,
    30     brand name and trade name equivalents. I understand that
    20030H2036B4779                 - 10 -     

     1     dosage instructions are not binding on my physician.
     2     ( ) I do not consent to the use of any medications.
     3     ( ) I have designated an agent under the power of attorney
     4     portion of this document to make decisions related to
     5     medication.
     6         3.  Preferences regarding electroconvulsive therapy
     7     (ECT).
     8     ( ) I consent to the administration of electroconvulsive
     9     therapy.
    10     ( ) I do not consent to the administration of
    11     electroconvulsive therapy.
    12     ( ) I have designated an agent under the power of attorney
    13     portion of this document to make decisions related to
    14     electroconvulsive therapy.
    15         4.  Preferences for experimental studies or drug trials.
    16     ( ) I consent to participation in experimental studies if my
    17     treating physician believes that the potential benefits to me
    18     outweigh the possible risks to me.
    19     ( ) I have designated an agent under the power of attorney
    20     portion of this document to make decisions related to
    21     experimental studies.
    22     ( ) I do not consent to participation in experimental
    23     studies.
    24     ( ) I consent to participation in drug trials if my treating
    25     physician believes that the potential benefits to me outweigh
    26     the possible risks to me.
    27     ( ) I have designated an agent under the power of attorney
    28     portion of this document to make decisions related to drug
    29     trials.
    30     ( ) I do not consent to participation in any drug trials.
    20030H2036B4779                 - 11 -     

     1         5.  Additional instructions or information.
     2     Examples of other instructions or information that may be
     3     included:
     4         Activities that help or worsen symptoms.
     5         Type of intervention preferred in the event of a
     6             crisis.
     7         Mental and physical health history.
     8         Dietary requirements.
     9         Religious preferences.
    10         Temporary custody of children.
    11         Family notification.
    12         Limitations on the release or disclosure of
    13             mental health records.
    14         Other matters of importance.
    15     C.  Revocation.
    16     This declaration may be revoked in whole or in part at any
    17     time, either orally or in writing, as long as I have not been
    18     found to be incapable of making mental health decisions.
    19     My revocation will be effective upon communication to my
    20     attending physician or other mental health care provider,
    21     either by me or a witness to my revocation, of the intent to
    22     revoke. If I choose to revoke a particular instruction
    23     contained in this declaration in the manner specified, I
    24     understand that the other instructions contained in this
    25     declaration will remain effective until:
    26         (1)  I revoke this declaration in its entirety;
    27         (2)  I make a new combined mental health declaration and
    28     power of attorney; or
    29         (3)  two years after the date this document was executed.
    30     D.  Termination.
    20030H2036B4779                 - 12 -     

     1     I understand that this declaration will automatically
     2     terminate two years from the date of execution, unless I am
     3     deemed incapable of making mental health care decisions at
     4     the time that this declaration would expire.
     5                           (Specify date)
     6     E.  Preference as to a court-appointed guardian.
     7     I understand that I may nominate a guardian of my person for
     8     consideration by the court if incapacity proceedings are
     9     commenced under 20 Pa.C.S. § 5511. I understand that the
    10     court will appoint a guardian in accordance with my most
    11     recent nomination except for good cause or disqualification.
    12     In the event a court decides to appoint a guardian, I desire
    13     the following person to be appointed:
    14       (Insert name, address, telephone number of the designated
    15                              person)
    16     ( ) The appointment of a guardian of my person will not give
    17     the guardian the power to revoke, suspend or terminate this
    18     declaration.
    19     ( ) Upon appointment of a guardian, I authorize the guardian
    20     to revoke, suspend or terminate this declaration.
    21     Part III.  Mental Health Power of Attorney.
    22     I,                , having the capacity to make mental health
    23     decisions, authorize my designated health care agent to make
    24     certain decisions on my behalf regarding my mental health
    25     care. If I have not expressed a choice in this document or in
    26     the accompanying declaration, I authorize my agent to make
    27     the decision that my agent determines is the decision I would
    28     make if I were competent to do so.
    29     A.  Designation of agent.
    30     I hereby designate and appoint the following person as my
    20030H2036B4779                 - 13 -     

     1     agent to make mental health care decisions for me as
     2     authorized in this document. This authorization applies only
     3     to mental health decisions that are not addressed in the
     4     accompanying signed declaration.
     5     (Insert name of designated person)
     6     Signed:
     7     (My name, address, telephone number)
     8     (Witnesses signatures)
     9     (Insert names, addresses, telephone numbers of witnesses)
    10     Agent's acceptance:
    11     I hereby accept designation as mental health care agent for
    12     (Insert name of declarant)
    13     Agent's signature:
    14     (Insert name, address, telephone number of designated person)
    15     B.  Designation of alternative agent.
    16     In the event that my first agent is unavailable or unable to
    17     serve as my mental health care agent, I hereby designate and
    18     appoint the following individual as my alternative mental
    19     health care agent to make mental health care decisions for me
    20     as authorized in this document:
    21     (Insert name of designated person)
    22     Signed:
    23     (My name, address, telephone number)
    24     (Witnesses signatures)
    25     (Insert names, addresses, telephone numbers of witnesses)
    26     Alternative agent's acceptance:
    27     I hereby accept designation as alternative mental health care
    28     agent for (Insert name of declarant)
    29     Alternative agent's signature:
    30     (Insert name, address, telephone number of alternative agent)
    20030H2036B4779                 - 14 -     

     1     C.  When this power of attorney become effective.
     2     This power of attorney will become effective at the following
     3     designated time:
     4     ( ) When I am deemed incapable of making mental health care
     5     decisions.
     6     ( ) When the following condition is met:
     7                          (List condition)
     8     D.  Authority granted to my mental health care agent.
     9     I hereby grant to my agent full power and authority to make
    10     mental health care decisions for me consistent with the
    11     instructions and limitations set forth in this document. If I
    12     have not expressed a choice in this power of attorney, or in
    13     the accompanying declaration, I authorize my agent to make
    14     the decision that my agent determines is the decision I would
    15     make if I were competent to do so.
    16         (1)  Preferences regarding medications for psychiatric
    17     treatment.
    18     ( ) My agent is authorized to consent to the use of any
    19     medications after consultation with my treating psychiatrist
    20     and any other persons my agent considers appropriate.
    21     ( ) My agent is not authorized to consent to the use of any
    22     medications.
    23         (2)  Preferences regarding electroconvulsive therapy
    24     (ECT).
    25     ( ) My agent is authorized to consent to the administration
    26     of electroconvulsive therapy.
    27     ( ) My agent is not authorized to consent to the
    28     administration of electroconvulsive therapy.
    29         (3)  Preferences for experimental studies or drug trials.
    30     ( ) My agent is authorized to consent to my participation in
    20030H2036B4779                 - 15 -     

     1     experimental studies if, after consultation with my treating
     2     physician and any other individuals my agent deems
     3     appropriate, my agent believes that the potential benefits to
     4     me outweigh the possible risks to me.
     5     ( ) My agent is not authorized to consent to my participation
     6     in experimental studies.
     7     ( ) My agent is authorized to consent to my participation in
     8     drug trials if, after consultation with my treating physician
     9     and any other individuals my agent deems appropriate, my
    10     agent believes that the potential benefits to me outweigh the
    11     possible risks to me.
    12     ( ) My agent is not authorized to consent to my participation
    13     in drug trials.
    14     E.  Revocation.
    15     This power of attorney may be revoked in whole or in part at
    16     any time, either orally or in writing, as long as I have not
    17     been found to be incapable of making mental health decisions.
    18     My revocation will be effective upon communication to my
    19     attending physician or other mental health care provider,
    20     either by me or a witness to my revocation, of the intent to
    21     revoke. If I choose to revoke a particular instruction
    22     contained in this power of attorney in the manner specified,
    23     I understand that the other instructions contained in this
    24     power of attorney will remain effective until:
    25         (1)  I revoke this power of attorney in its entirety;
    26         (2)  I make a new combined mental health care declaration
    27     and power of attorney; or
    28         (3)  two years from the date this document was executed.
    29     I understand that this power of attorney will automatically
    30     terminate two years from the date of execution unless I am
    20030H2036B4779                 - 16 -     

     1     deemed incapable of making mental health care decisions at
     2     the time that the power of attorney would expire.
     3     I am making this combined mental health care declaration and
     4     power of attorney on the (insert day) day of (insert month),
     5     (insert year).
     6     My signature:
     7     (My name, address, telephone number)
     8     Witnesses signatures:
     9     (Names, addresses, telephone numbers of witnesses).
    10     If the principal making this combined mental health care
    11     declaration and power of attorney is unable to sign this
    12     document, another individual may sign on behalf of and at the
    13     direction of the principal.
    14     Signature of person signing on my behalf:
    15     Signature
    16     (Name, address, telephone number)
    17                            SUBCHAPTER B
    18                     MENTAL HEALTH DECLARATIONS
    19  Sec.
    20  5821.  Short title of subchapter.
    21  5822.  Execution.
    22  5823.  Form.
    23  5824.  Operation.
    24  5825.  Revocation.
    25  5826.  Amendment.
    26  § 5821.  Short title of subchapter.
    27     This subchapter shall be known and may be cited as the
    28  Advance Directive for Mental Health Act.
    29  § 5822.  Execution.
    30     (a)  Who may make.--An individual who is at least 18 years of
    20030H2036B4779                 - 17 -     

     1  age or an emancipated minor and has not been deemed
     2  incapacitated pursuant to section 5511 (relating to petition and
     3  hearing; independent evaluation) or severely mentally disabled
     4  pursuant to Article III of the act of July 9, 1976 (P.L.817,
     5  No.143), known as the Mental Health Procedures Act, may make a
     6  declaration governing the initiation, continuation, withholding
     7  or withdrawal of mental health treatment.
     8     (b)  Requirements.--A declaration must be:
     9         (1)  Dated and signed by the declarant by signature or
    10     mark or by another individual on behalf of and at the
    11     direction of the declarant.
    12         (2)  Witnessed by two individuals, each of whom must be
    13     at least 18 years of age.
    14     (c)  Witnesses.--
    15         (1)  An individual who signs a declaration on behalf of
    16     and at the direction of a declarant may not witness the
    17     declaration.
    18         (2)  A mental health care provider and its agent may not
    19     sign a declaration on behalf of and at the direction of a
    20     declarant if the mental health care provider or agent
    21     provides mental health care services to the declarant.
    22  § 5823.  Form.
    23     A declaration may be in the following form or any other
    24  written form that expresses the wishes of a declarant regarding
    25  the initiation, continuation or refusal of mental health
    26  treatment and may include other specific directions, including,
    27  but not limited to, designation of another individual to make
    28  mental health treatment decisions for the declarant if the
    29  declarant is incapable of making mental health decisions:
    30                     Mental Health Declaration.
    20030H2036B4779                 - 18 -     

     1     I,                  , having the capacity to make mental
     2     health decisions, willfully and voluntarily make this
     3     declaration regarding my mental health care.
     4     I understand that mental health care includes any care,
     5     treatment, service or procedure to maintain, diagnose, treat
     6     or provide for mental health, including any medication
     7     program and therapeutic treatment. Electroconvulsive therapy
     8     may be administered only if I have specifically consented to
     9     it in this document. I will be the subject of laboratory
    10     trials or research, only if specifically provided for in this
    11     document. Mental health care does not include psychosurgery
    12     or termination of parental rights.
    13     I understand that my incapacity will be determined by
    14     examination by a psychiatrist and one of the following:
    15     another psychiatrist, psychologist, family physician,
    16     attending physician or mental health treatment professional.
    17     Whenever possible, one of the decision makers will be one of
    18     my treating professionals.
    19     A.  When this declaration becomes effective.
    20     This declaration becomes effective at the following
    21     designated time:
    22     ( ) When I am deemed incapable of making mental health care
    23     decisions.
    24     ( ) When the following condition is met:
    25                          (List condition)
    26     B.  Treatment preferences.
    27         1.  Choice of treatment facility.
    28     ( ) In the event that I require commitment to a psychiatric
    29     treatment facility, I would prefer to be admitted to the
    30     following facility:
    20030H2036B4779                 - 19 -     

     1               (Insert name and address of facility)
     2     ( ) In the event that I require commitment to a psychiatric
     3     treatment facility, I do not wish to be committed to the
     4     following facility:
     5               (Insert name and address of facility)
     6     I understand that my physician may have to place me in a
     7     facility that is not my preference.
     8         2.  Preferences regarding medications for psychiatric
     9     treatment.
    10     ( ) I consent to the medications that my treating physician
    11     recommends with the following exception, preference or
    12     limitation:
    13     (List medication and reason for exception, preference or
    14     limitation)
    15     This exception, preference or limitation applies to generic,
    16     brand name and trade name equivalents. I understand that
    17     dosage instructions are not binding on my physician.
    18     ( ) I do not consent to the use of any medications.
    19         3.  Preferences regarding electroconvulsive therapy
    20     (ECT).
    21     ( ) I consent to the administration of electroconvulsive
    22     therapy.
    23     ( ) I do not consent to the administration of
    24     electroconvulsive therapy.
    25         4.  Preferences for experimental studies or drug trials.
    26     ( ) I consent to participation in experimental studies if my
    27     treating physician believes that the potential benefits to me
    28     outweigh the possible risks to me.
    29     ( ) I do not consent to participation in experimental
    30     studies.
    20030H2036B4779                 - 20 -     

     1     ( ) I consent to participation in drug trials if my treating
     2     physician believes that the potential benefits to me outweigh
     3     the possible risks to me.
     4     ( ) I do not consent to participation in any drug trials.
     5         5.  Additional instructions or information.
     6     Examples of other instructions or information that may be
     7     included:
     8         Activities that help or worsen symptoms.
     9         Type of intervention preferred in the event of a
    10             crisis.
    11         Mental and physical health history.
    12         Dietary requirements.
    13         Religious preferences.
    14         Temporary custody of children.
    15         Family notification.
    16         Limitations on the release or disclosure of mental
    17             health records.
    18         Other matters of importance.
    19     C.  Revocation.
    20     This declaration may be revoked in whole or in part at any
    21     time, either orally or in writing, as long as I have not been
    22     found to be incapable of making mental health decisions.
    23     My revocation will be effective upon communication to my
    24     attending physician or other mental health care provider,
    25     either by me or a witness to my revocation, of the intent to
    26     revoke. If I choose to revoke a particular instruction
    27     contained in this declaration in the manner specified, I
    28     understand that the other instructions contained in this
    29     declaration will remain effective until:
    30         (1)  I revoke this declaration in its entirety;
    20030H2036B4779                 - 21 -     

     1         (2)  I make a new mental health care declaration; or
     2         (3)  two years after the date this document was executed.
     3     D.  Termination.
     4     I understand that this declaration will automatically
     5     terminate two years from the date of execution unless I am
     6     deemed incapable of making mental health care decisions at
     7     the time that the declaration would expire.
     8     E.  Preference as to a court-appointed guardian.
     9     I understand that I may nominate a guardian of my person for
    10     consideration by the court if incapacity proceedings are
    11     commenced pursuant to 20 Pa.C.S. § 5511. I understand that
    12     the court will appoint a guardian in accordance with my most
    13     recent nomination except for good cause or disqualification.
    14     In the event a court decides to appoint a guardian, I desire
    15     the following person to be appointed:
    16              (Insert name, address and telephone number
    17                         of designated person)
    18     ( ) The appointment of a guardian of my person will not give
    19     the guardian the power to revoke, suspend or terminate this
    20     declaration.
    21     ( ) Upon appointment of a guardian, I authorize the guardian
    22     to revoke, suspend or terminate this declaration.
    23         I am making this declaration on the (insert day)
    24     day of (insert month), (insert year).
    25     My signature: (My name, address, telephone number)
    26     Witnesses' signatures: (Names, addresses, telephone numbers
    27     of witnesses)
    28     If the principal making this declaration is unable to sign
    29     it, another individual may sign on behalf of and at the
    30     direction of the principal.
    20030H2036B4779                 - 22 -     

     1     Signature of person signing on my behalf:
     2     (Name, address and telephone number)
     3  § 5824.  Operation.
     4     (a)  When operative.--A declaration becomes operative when:
     5         (1)  A copy is provided to the attending physician.
     6         (2)  The conditions stated in the declaration are met.
     7     (b)  Compliance.--When a declaration becomes operative, the
     8  attending physician and other mental health care providers shall
     9  act in accordance with its provisions or comply with the
    10  transfer provisions of section 5804 (relating to compliance).
    11     (c)  Invalidity of specific direction.--If a specific
    12  direction in the declaration is held to be invalid, the
    13  invalidity shall not be construed to negate other directions in
    14  the declaration that can be effected without the invalid
    15  direction.
    16     (d)  Mental health record.--A physician or other mental
    17  health care provider to whom a copy of a declaration is
    18  furnished shall make it a part of the mental health record of
    19  the declarant, for at least two years from the date of
    20  execution, and if unwilling to comply with the declaration,
    21  promptly so advise those listed in section 5804(a)(2).
    22     (e)  Duration.--A declaration shall be valid until revoked by
    23  the declarant or until two years from the date of execution. If
    24  a declaration for mental health treatment has been invoked and
    25  is in effect at the specified expiration date after its
    26  execution, the declaration shall remain effective until the
    27  principal is no longer incapable.
    28     (f)  Absence of declaration.--If an individual does not make
    29  a declaration, a presumption does not arise regarding the intent
    30  of the individual to consent to or to refuse a mental health
    20030H2036B4779                 - 23 -     

     1  treatment.
     2  § 5825.  Revocation.
     3     (a)  When declaration may be revoked.--A declaration may be
     4  revoked by the declarant at any time, either orally or in
     5  writing in whole or in part unless the individual has been found
     6  to be incapable of making mental health decisions or the
     7  individual has been involuntarily committed.
     8     (b)  Capacity to revoke.--Subsection (a) notwithstanding,
     9  during a period of involuntary commitment pursuant to Article
    10  III of the act of July 9, 1976 (P.L.817, No.143), known as the
    11  Mental Health Procedures Act, a declarant may revoke the
    12  declaration only if found to be capable of making mental health
    13  decisions after examination by a psychiatrist and one of the
    14  following: another psychiatrist, a psychologist, family
    15  physician, attending physician or mental treatment professional.
    16  Whenever possible, at least one of the decision makers shall be
    17  a treating professional of the declarant or principal.
    18     (c)  Effect of revocation.--A revocation of a declaration
    19  shall be effective upon communication to the attending physician
    20  or other mental health care provider by the declarant or a
    21  witness to the revocation of the intent to revoke.
    22     (d)  Mental health record.--An attending physician or other
    23  mental health care provider shall make revocation, a finding of
    24  capacity or a declaration part of the mental health record of
    25  the declarant.
    26  § 5826.  Amendment.
    27     (a)  Capacity to amend.--While having the capacity to make
    28  mental health decisions, a declarant may amend a declaration by
    29  a writing executed in accordance with the provisions of section
    30  5822 (relating to execution).
    20030H2036B4779                 - 24 -     

     1     (b)  Determination of capacity.--During the period of
     2  involuntary treatment pursuant to Article III of the act of July
     3  9, 1976 (P.L.817, No.143), known as the Mental Health Procedures
     4  Act, a declarant may amend the declaration if the individual is
     5  found to be capable of making mental health decisions after
     6  examination by a psychiatrist and one of the following: another
     7  psychiatrist, a psychologist, family physician, attending
     8  physician or mental health treatment professional. Whenever
     9  possible, at least one of the decision makers shall be a
    10  treating professional of the declarant or principal.
    11                            SUBCHAPTER C
    12                  MENTAL HEALTH POWERS OF ATTORNEY
    13  Sec.
    14  5831.  Short title of subchapter.
    15  5832.  Execution.
    16  5833.  Form.
    17  5834.  Operation.
    18  5835.  Appointment of mental health care agents.
    19  5836.  Authority of mental health care agent.
    20  5837.  Removal of agent.
    21  5838.  Effect of divorce.
    22  5839.  Revocation.
    23  5840.  Amendment.
    24  5841.  Relation of mental health care agent to court-appointed
    25         guardian and other agents.
    26  5842.  Duties of attending physician and mental health care
    27         provider.
    28  5843.  Construction.
    29  5844.  Conflicting mental health care powers of attorney          <--
    30         PROVISIONS.                                                <--
    20030H2036B4779                 - 25 -     

     1  5845.  Validity.
     2  § 5831.  Short title of subchapter.
     3     This subchapter shall be known and may be cited as the Mental
     4  Health Care Agents Act.
     5  § 5832.  Execution.
     6     (a)  Who may make.--An individual who is at least 18 years of
     7  age or an emancipated minor and who has not been deemed
     8  incapacitated pursuant to section 5511 (relating to petition and
     9  hearing; independent evaluation) or found to be severely
    10  mentally disabled pursuant to Article III of the act of July 9,
    11  1976 (P.L.817, No.143), known as the Mental Health Procedures
    12  Act, may make a mental health power of attorney governing the
    13  initiation, continuation, withholding or withdrawal of mental
    14  health treatment.
    15     (b)  Requirements.--A mental health power of attorney must
    16  be:
    17         (1)  Dated and signed by the principal by signature or
    18     mark or by another individual on behalf of and at the
    19     direction of the principal.
    20         (2)  Witnessed by two individuals, each of whom must be
    21     at least 18 years of age.
    22     (c)  Witnesses.--
    23         (1)  An individual who signs a mental health power of
    24     attorney on behalf of and at the direction of a principal may
    25     not witness the mental health power of attorney.
    26         (2)  A mental health care provider and its agent may not
    27     sign a mental health power of attorney on behalf of and at
    28     the direction of a principal if the mental health care
    29     provider or agent provides mental health care services to the
    30     principal.
    20030H2036B4779                 - 26 -     

     1  § 5833.  Form.
     2     (a)  Requirements.--A mental health power of attorney must do
     3  the following:
     4         (1)  Identify the principal and appoint the mental health
     5     care agent.
     6         (2)  Declare that the principal authorizes the mental
     7     health care agent to make mental health care decisions on
     8     behalf of the principal.
     9     (b)  Optional provisions.--A mental health power of attorney
    10  may:
    11         (1)  Describe any limitations that the principal imposes
    12     upon the authority of the mental health care agent.
    13         (2)  Indicate the intent of the principal regarding the
    14     initiation, continuation or refusal of mental health
    15     treatment.
    16         (3)  Nominate a guardian of the person of the principal
    17     as provided in section 5511 SUBCHAPTER C OF CHAPTER 55         <--
    18     (relating to appointment of guardian; BONDS; REMOVAL AND       <--
    19     DISCHARGE).
    20         (4)  Contain other provisions as the principal may
    21     specify regarding the implementation of mental health care
    22     decisions and related actions by the mental health care
    23     agent.
    24     (c)  Written form.--A mental health power of attorney may be
    25  in the following form or any other written form identifying the
    26  principal, appointing a mental health care agent and declaring
    27  that the principal authorizes the mental health care agent to
    28  make mental health care decisions on behalf of the principal.
    29                  Mental Health Power of Attorney
    30     I,                  , having the capacity to make mental
    20030H2036B4779                 - 27 -     

     1     health decisions, authorize my designated health care agent
     2     to make certain decisions on my behalf regarding my mental
     3     health care. If I have not expressed a choice in this
     4     document, I authorize my agent to make the decision that my
     5     agent determines is the decision I would make if I were
     6     competent to do so.
     7     I understand that mental health care includes any care,
     8     treatment, service or procedure to maintain, diagnose, treat
     9     or provide for mental health, including any medication
    10     program and therapeutic treatment. Electroconvulsive therapy
    11     may be administered only if I have specifically consented to
    12     it in this document. I will be the subject of laboratory
    13     trials or research only if specifically provided for in this
    14     document. Mental health care does not include psychosurgery
    15     or termination of parental rights.
    16     I understand that my incapacity will be determined by
    17     examination by a psychiatrist and one of the following:
    18     another psychiatrist, psychologist, family physician,
    19     attending physician or mental health treatment professional.
    20     Whenever possible, one of the decision makers shall be one of
    21     my treating professionals.
    22     A.  Designation of agent. I hereby designate and appoint the
    23     following person as my agent to make mental health care
    24     decisions for me as authorized in this document:
    25                 (Insert name of designated person)
    26     Signed:
    27     (My name, address, telephone number)
    28     (Witnesses' signatures)
    29     (Names, addresses, telephone numbers of witnesses)
    30     Agent's acceptance:
    20030H2036B4779                 - 28 -     

     1     I hereby accept designation as mental health care agent for
     2     (Insert name of declarant)
     3     Agent's signature:
     4     (Insert name, address, telephone number of designated person)
     5     B.  Designation of alternative agent.
     6     In the event that my first agent is unavailable or unable to
     7     serve as my mental health care agent, I hereby designate and
     8     appoint the following individual as my alternative mental
     9     health care agent to make mental health care decisions for me
    10     as authorized in this document:
    11     (Insert name of designated person)
    12     Signed:
    13     (Witnesses' signatures)
    14     (Names, addresses, telephone numbers of witnesses)
    15     Alternative agent's acceptance:
    16     I hereby accept designation as alternative mental health care
    17     agent for
    18     (Insert name of declarant)
    19     Alternative agent's signature:                  .
    20     (Insert name, address, telephone number)
    21     C.  When this power of attorney becomes effective.
    22     This power of attorney will become effective at the following
    23     designated time:
    24     ( )  When I am deemed incapable of making mental health care
    25     decisions.
    26     ( )  When the following condition is met:
    27                          (List condition)
    28     D.  Authority granted to my mental health care agent.
    29     I hereby grant to my agent full power and authority to make
    30     mental health care decisions for me consistent with the
    20030H2036B4779                 - 29 -     

     1     instructions and limitations set forth in this power of
     2     attorney. If I have not expressed a choice in this power of
     3     attorney, I authorize my agent to make the decision that my
     4     agent determines is the decision I would make if I were
     5     competent to do so.
     6         1.  Treatment preferences.
     7         (a)  Choice of treatment facility.
     8     ( )  In the event that I require commitment to a psychiatric
     9     treatment facility, I would prefer to be admitted to the
    10     following facility:
    11                 (Insert name and address of facility)
    12     ( )  In the event that I require commitment to a psychiatric
    13     treatment facility, I do not wish to be committed to the
    14     following facility:
    15               (Insert name and address of facility)
    16     I understand that my physician may have to place me in a
    17     facility that is not my preference.
    18         (b)  Preferences regarding medications for psychiatric
    19     treatment.
    20     ( )  I consent to the medications that my agent agrees to
    21     after consultation with my treating physician and any other
    22     persons my agent considers appropriate.
    23     ( )  I consent to the medications that my agent agrees to,
    24     with the following exception or limitation:
    25                   (List exception or limitation)
    26     This exception or limitation applies to generic, brand name
    27     and trade name equivalents.
    28     ( )  My agent is not authorized to consent to the use of any
    29     medications.
    30         (c)  Preferences regarding electroconvulsive therapy
    20030H2036B4779                 - 30 -     

     1     (ECT).
     2     ( )  My agent is authorized to consent to the administration
     3     of electroconvulsive therapy.
     4     ( )  My agent is not authorized to consent to the
     5     administration of electroconvulsive therapy.
     6         (d)  Preferences for experimental studies or drug trials.
     7     ( )  My agent is authorized to consent to my participation in
     8     experimental studies if, after consultation with my treating
     9     physician and any other individuals my agent deems
    10     appropriate, my agent believes that the potential benefits to
    11     me outweigh the possible risks to me.
    12     ( )  My agent is not authorized to consent to my
    13     participation in experimental studies.
    14     ( )  My agent is authorized to consent to my participation in
    15     drug trials if, after consultation with my treating physician
    16     and any other individuals my agent deems appropriate, my
    17     agent believes that the potential benefits to me outweigh the
    18     possible risks to me.
    19     ( )  My agent is not authorized to consent to my
    20     participation in drug trials.
    21         (e)  Additional information and instructions.
    22     Examples of other information that may be included:
    23         Activities that help or worsen symptoms.
    24         Type of intervention preferred in the event of a
    25             crisis.
    26         Mental and physical health history.
    27         Dietary requirements.
    28         Religious preferences.
    29         Temporary custody of children.
    30         Family notification.
    20030H2036B4779                 - 31 -     

     1         Limitations on release or disclosure of mental
     2             health records.
     3         Other matters of importance.
     4     E.  Revocation.
     5     This power of attorney may be revoked in whole or in part at
     6     any time, either orally or in writing, as long as I have not
     7     been found to be incapable of making mental health decisions.
     8     My revocation will be effective upon communication to my
     9     attending physician or other mental health care provider,
    10     either by me or a witness to my revocation, of the intent to
    11     revoke. If I choose to revoke a particular instruction
    12     contained in this power of attorney in the manner specified,
    13     I understand that the other instructions contained in this
    14     power of attorney will remain effective until:
    15         (1)  I revoke this power of attorney in its entirety;
    16         (2)  I make a new mental health power of attorney; or
    17         (3)  two years after the date this document was executed.
    18     F.  Termination.
    19     I understand that this power of attorney will automatically
    20     terminate two years from the date of execution unless I am
    21     deemed incapable of making mental health care decisions at
    22     the time the power of attorney would expire.
    23     G.  Preference as to a court-appointed guardian.
    24     I understand that I may nominate a guardian of my person for
    25     consideration by the court if incapacity proceedings are
    26     commenced pursuant to 20 Pa.C.S. § 5511. I understand that
    27     the court will appoint a guardian in accordance with my most
    28     recent nomination except for good cause or disqualification.
    29     In the event a court decides to appoint a guardian, I desire
    30     the following person to be appointed:
    20030H2036B4779                 - 32 -     

     1     (Insert name, address, telephone number of designated person)
     2     ( )  The appointment of a guardian of my person will not give
     3     the guardian the power to revoke, suspend or terminate this
     4     power of attorney.
     5     ( )  Upon appointment of a guardian, I authorize the guardian
     6     to revoke, suspend or terminate this power of attorney.
     7     I am making this power of attorney on the (insert day) of
     8     (insert month), (insert year).
     9     My signature
    10     (My Name, address, telephone number)
    11     Witnesses' signatures:
    12     (Names, addresses, telephone numbers of witnesses)
    13     If the principal making this power of attorney is unable to
    14     sign it, another individual may sign on behalf of and at the
    15     direction of the principal.
    16     Signature of person signing on my behalf:
    17     Signature
    18     (Name, address telephone number)
    19  § 5834.  Operation.
    20     (a)  When operative.--A mental health power of attorney shall
    21  become operative when:
    22         (1)  A copy is provided to the attending physician.
    23         (2)  The conditions stated in the power of attorney are
    24     met.
    25     (b)  Invalidity of specific direction.--If a specific
    26  direction in a mental health power of attorney is held to be
    27  invalid, the invalidity does not negate other directions in the
    28  mental health power of attorney that can be effected without the
    29  invalid direction.
    30     (c)  Duration.--A mental health power of attorney shall be
    20030H2036B4779                 - 33 -     

     1  valid until revoked by the principal or until two years after
     2  the date of execution. If a mental health power of attorney for
     3  mental health treatment has been invoked and is in effect at the
     4  specified date of expiration after its execution, the mental
     5  health power of attorney shall remain effective until the
     6  principal is no longer incapable.
     7     (d)  Court approval unnecessary.--A mental health care
     8  decision made by a mental health care agent for a principal
     9  shall be effective without court approval.
    10  § 5835.  Appointment of mental health care agents.
    11     (a)  Successor mental health care agents.--A principal may
    12  appoint one or more successor agents who shall serve in the
    13  order named in the mental health power of attorney unless the
    14  principal expressly directs to the contrary.
    15     (b)  Who may not be appointed mental health care agent.--
    16  Unless related to the principal by blood, marriage or adoption,
    17  a principal may not appoint any of the following to be the
    18  mental health care agent:
    19         (1)  The principal's attending physician or other mental
    20     health care provider, or an employee of the attending
    21     physician or other mental health care provider.
    22         (2)  An owner, operator or employee of a residential
    23     facility in which the principal receives care.
    24  § 5836.  Authority of mental health care agent.
    25     (a)  Extent of authority.--Except as expressly provided
    26  otherwise in a mental health power of attorney and subject to
    27  subsections (b) and (c), a mental health care agent may make any
    28  mental health care decision and exercise any right and power
    29  regarding the principal's care, custody and mental health care
    30  treatment that the principal could have made and exercised.
    20030H2036B4779                 - 34 -     

     1     (b)  Powers not granted.--A mental health power of attorney
     2  may not convey the power to relinquish parental rights or
     3  consent to psychosurgery.
     4     (c)  Powers and duties only specifically granted.--Unless
     5  specifically included in a mental health power of attorney, the
     6  agent shall not have the power to consent to electroconvulsive
     7  therapy or to experimental procedures or research.
     8     (d)  Mental health care decisions.--After consultation with
     9  mental health care providers and after consideration of the
    10  prognosis and acceptable alternatives regarding diagnosis,
    11  treatments and side effects, a mental health care agent shall
    12  make mental health care decisions in accordance with the mental
    13  health care agent's understanding and interpretation of the
    14  instructions given by the principal at a time when the principal
    15  had the capacity to make and communicate mental health care
    16  decisions. Instructions include a declaration made by the
    17  principal and any clear written or verbal directions that cover
    18  the situation presented. In the absence of instructions, the
    19  mental health care agent shall make mental health care decisions
    20  conforming with the mental health care agent's assessment of the
    21  principal's preferences.
    22     (e)  Mental health care information.--
    23         (1)  Unless specifically provided otherwise in a mental
    24     health power of attorney, a mental health care agent shall
    25     have the same rights and limitations as the principal to
    26     request, examine, copy and consent or refuse to consent to
    27     the disclosure of mental health care information.
    28         (2)  Disclosure of mental health care information to a
    29     mental health care agent shall not be construed to constitute
    30     a waiver of any evidentiary privilege or right to assert
    20030H2036B4779                 - 35 -     

     1     confidentiality.
     2         (3)  A mental health care provider that discloses mental
     3     health care information to a mental health care agent in good
     4     faith shall not be liable for the disclosure.
     5         (4)  A mental health care agent may not disclose mental
     6     health care information regarding the principal except as is
     7     reasonably necessary to perform the agent's obligations to
     8     the principal or as otherwise required by law.
     9     (f)  Liability of agent.--A mental health care agent shall
    10  not be personally liable for the costs of care and treatment of
    11  the principal.
    12  § 5837.  Removal of agent.
    13     (a)  Grounds for removal.--A mental health care agent may be
    14  removed BY THE COURT for any of the following reasons:            <--
    15         (1)  Death or incapacity.
    16         (2)  Noncompliance with a mental health power of
    17     attorney.
    18         (3)  Physical assault or threats of harm.
    19         (4)  Coercion.
    20         (5)  Voluntary withdrawal by the agent.
    21         (6)  Divorce.
    22     (b)  Notice of voluntary withdrawal.--
    23         (1)  A mental health care agent who voluntarily withdraws
    24     shall inform the principal.
    25         (2)  If the mental health power of attorney is in effect,
    26     the agent shall notify providers of mental health treatment.
    27     (c)  Challenges.--Third parties may challenge the authority
    28  of a mental health agent in the orphan's court division of the
    29  court of common pleas.
    30     (d)  Effect of removal.--If a mental health power of attorney
    20030H2036B4779                 - 36 -     

     1  provides for a substitute agent, then the substitute agent shall
     2  assume responsibility when the agent is removed. If the power of
     3  attorney does not provide for a substitute, then a mental health
     4  care provider shall follow any instructions in the power of
     5  attorney.
     6  § 5838.  Effect of divorce.
     7     If the spouse of a principal is designated as the principal's
     8  mental health care agent and thereafter either spouse files an
     9  action in divorce, the designation of the spouse as mental
    10  health care agent shall be revoked as of the time the action is
    11  filed unless it clearly appears from the mental health power of
    12  attorney that the designation was intended to continue to be
    13  effective notwithstanding the filing of an action in divorce by
    14  either spouse.
    15  § 5839.  Revocation.
    16     (a)  When a mental health power of attorney may be revoked.--
    17  A mental health power of attorney may be revoked by the
    18  principal at any time, either orally or in writing in whole or
    19  in part, unless the principal has been found to be incapable of
    20  making mental health treatment decisions or the principal has
    21  been involuntarily committed.
    22     (b)  Capacity to revoke.--Notwithstanding subsection (a),
    23  during a period of involuntary commitment pursuant to Article
    24  III of the act of July 9, 1976 (P.L.817, No.143), known as the
    25  Mental Health Procedures Act, a principal may revoke the mental
    26  health power of attorney only if found to be capable of making
    27  mental health decisions after examination by a psychiatrist and
    28  one of the following: another psychiatrist, a psychologist, a
    29  family physician, an attending physician or a mental health
    30  treatment professional. Whenever possible, at least one of the
    20030H2036B4779                 - 37 -     

     1  decision makers shall be a treating professional of the
     2  declarant or principal.
     3     (c)  Effect of revocation.--A revocation shall be effective
     4  upon communication to the attending physician or other mental
     5  health care provider by the principal or a witness to the
     6  revocation of the intent to revoke.
     7     (d)  Mental health record.--The attending physician or other
     8  mental health care provider shall make the revocation or a
     9  finding of capacity part of the mental health record of the
    10  declarant.
    11     (e)  Reliance on mental health power of attorney.--A
    12  physician or other mental health care provider may rely on the
    13  effectiveness of a mental health power of attorney unless
    14  notified of its revocation.
    15     (f)  Subsequent action by agent.--A mental health care agent
    16  who has notice of the revocation of a mental health power of
    17  attorney may not make or attempt to make mental health care
    18  decisions for the principal.
    19  § 5840.  Amendment.
    20     While having the capacity to make mental health decisions, a
    21  principal may amend a mental health power of attorney by a
    22  writing executed in accordance with the provisions of section
    23  5832 (relating to execution).
    24  § 5841.  Relation of mental health care agent to court-appointed
    25             guardian and other agents.
    26     (a)  Procedure.--
    27         (1)  Upon  receipt of notice of a guardianship
    28     proceeding, a provider shall notify the court, and the agent
    29     at the guardianship proceeding, of the existence of a mental
    30     health advance directive.
    20030H2036B4779                 - 38 -     

     1         (2)  Upon receipt of a notice of guardianship proceeding,
     2     the agent shall inform the court of the contents of the
     3     mental health advance directive.
     4     (b)  Accountability of mental health care agent.--
     5         (1)  If a principal who has executed a mental health
     6     power of attorney is later adjudicated an incapacitated
     7     person, the mental health power of attorney shall remain in
     8     effect.
     9         (2)  The court shall give preference to allowing the
    10     agent to continue making mental health care decisions as
    11     provided in the mental health advance directive unless the
    12     principal specified that the guardian has the power to
    13     terminate, revoke, or suspend the mental health power of
    14     attorney in the advance directive.
    15         (3)  If, after thorough examination, the court grants the
    16     powers contained in the mental health advance directive to
    17     the guardian, the guardian shall be bound by the same
    18     obligations as the agent would have been.
    19     (c)  Nomination of guardian of person.--In a mental health
    20  power of attorney, a principal may nominate the guardian of the
    21  person for the principal for consideration by the court if
    22  incapacity proceedings for the principal's person are thereafter
    23  commenced. If the court determines that the appointment of a
    24  guardian is necessary, the court shall appoint in accordance
    25  with the principal's most recent nomination except for good
    26  cause or disqualification.
    27  § 5842.  Duties of attending physician and mental health care
    28             provider.
    29     (a)  Compliance with decisions of mental health care agent.--
    30  Subject to any limitation specified in a mental health power of
    20030H2036B4779                 - 39 -     

     1  attorney, an attending physician or mental health care provider
     2  shall comply with a mental health care decision made by a mental
     3  health care agent to the same extent as if the decision had been
     4  made by the principal.
     5     (b)  Mental health record.--
     6         (1)  An attending physician or mental health care
     7     provider who is given a mental health power of attorney shall
     8     arrange for the mental health power of attorney or a copy to
     9     be placed in the mental health record of the principal.
    10         (2)  An attending physician or mental health care
    11     provider to whom an amendment or revocation of a mental
    12     health power of attorney is communicated shall promptly enter
    13     the information in the mental health record of the principal
    14     and maintain a copy if one is furnished.
    15     (c)  Record of determination.--An attending physician who
    16  determines that a principal is unable to make or has regained
    17  the capacity to make mental health treatment decisions or makes
    18  a determination that affects the authority of a mental health
    19  care agent shall enter the determination in the mental health
    20  record of the principal and, if possible, promptly inform the
    21  principal and any mental health care agent of the determination.
    22  § 5843.  Construction.
    23     (a)  General rule.--Nothing in this subchapter shall be
    24  construed to:
    25         (1)  Affect the requirements of other laws of this
    26     Commonwealth regarding consent to observation, diagnosis,
    27     treatment or hospitalization for a mental illness.
    28         (2)  Authorize a mental health care agent to consent to
    29     any mental health care prohibited by the laws of this
    30     Commonwealth.
    20030H2036B4779                 - 40 -     

     1         (3)  Affect the laws of this Commonwealth regarding any
     2     of the following:
     3             (i)  The standard of care of a mental health care
     4         provider required in the administration of mental health
     5         care or the clinical decision-making authority of the
     6         mental health care provider.
     7             (ii)  When consent is required for mental health
     8         care.
     9             (iii)  Informed consent for mental health care.
    10         (4)  Affect the ability to admit a person to a mental
    11     health facility under the voluntary and involuntary
    12     commitment provisions of the act of July 9, 1976 (P.L.817,
    13     No.143), known as the Mental Health Procedures Act.
    14     (b)  Disclosure.--
    15         (1)  The disclosure requirements of section 5836(e)
    16     (relating to authority of mental health care agent) shall
    17     supersede any provision in any other State statute or
    18     regulation that requires a principal to consent to disclosure
    19     or which otherwise conflicts with section 5836(e), including,
    20     but not limited to, the following:
    21             (i)  The act of April 14, 1972 (P.L.221, No.63),
    22         known as the Pennsylvania Drug and Alcohol Abuse Control
    23         Act.
    24             (ii)  Section 111 of the act of July 9, 1976
    25         (P.L.817, No.143), known as the Mental Health Procedures
    26         Act.
    27             (iii)  The act of October 5, 1978 (P.L.1109, No.261),
    28         known as the Osteopathic Medical Practice Act.
    29             (iv)  Section 41 of the act of December 20, 1985
    30         (P.L.457, No.112), known as the Medical Practice Act of
    20030H2036B4779                 - 41 -     

     1         1985.
     2             (v)  The act of November 29, 1990 (P.L.585, No.148),
     3         known as the Confidentiality of HIV-Related Information
     4         Act.
     5         (2)  The disclosure requirements under section 5836(e)
     6     shall not apply to the extent that the disclosure would be
     7     prohibited by Federal law and implementing regulations.
     8     (c)  Notice and acknowledgment requirements.--The notice and
     9  acknowledgment requirements of section 5601(c) and (d) (relating
    10  to general provisions) shall not apply to a power of attorney
    11  that provides exclusively for mental health care decision
    12  making.
    13     (d)  Legal remedies.--Nothing in this act CHAPTER shall        <--
    14  prohibit an interested party from using the same legal remedies
    15  that are otherwise available to seek a determination from the
    16  courts including invalidation of some or all of the declaration
    17  or the mental health power of attorney, in cases of potential
    18  irreparable harm or death. The courts shall have 72 hours from
    19  the time of application for remedy in which to make this
    20  determination.
    21     (D)  LEGAL REMEDIES.--AN INTERESTED PARTY MAY FILE A PETITION  <--
    22  SEEKING A DETERMINATION THAT FOLLOWING THE DIRECTIONS IN THE
    23  DECLARATION OR THE MENTAL HEALTH POWER OF ATTORNEY, MAY CAUSE
    24  POTENTIAL IRREPARABLE HARM OR DEATH. IN THAT EVENT, THE COURT
    25  MAY INVALIDATE SOME OR ALL OF THE PROVISIONS AND ISSUE ORDERS
    26  APPROPRIATE TO THE CIRCUMSTANCES AUTHORIZING TREATMENT. THE
    27  COURTS SHALL ISSUE AN ORDER WITHIN 72 HOURS FROM THE FILING OF
    28  THE PETITION.
    29  § 5844.  Conflicting mental health powers of attorney             <--
    30         PROVISIONS.                                                <--
    20030H2036B4779                 - 42 -     

     1     If a provision of a mental health power of attorney conflicts  <--
     2  with another provision of a mental health power CONFLICTS WITH:   <--
     3         (1)  THE PROVISION OF ANOTHER MENTAL HEALTH POWER of
     4     attorney or with a provision of a declaration, the provision
     5     of the instrument latest in date of execution shall prevail
     6     to the extent of the conflict.
     7         (2)  A POWER OF ATTORNEY, THE PROVISION IN THE MENTAL      <--
     8     HEALTH POWER OF ATTORNEY SHALL PREVAIL TO THE EXTENT OF THE
     9     CONFLICT, REGARDLESS OF THE DATE OF EXECUTION.
    10  § 5845.  Validity.
    11     This subchapter shall not be construed to limit the validity
    12  of a health care power of attorney executed prior to the
    13  effective date of this subchapter. A mental health power of
    14  attorney executed in another state or jurisdiction and in
    15  conformity with the laws of that state or jurisdiction shall be
    16  considered valid in this Commonwealth, except to the extent that
    17  the mental health power of attorney executed in another state or
    18  jurisdiction would allow a mental health care agent to make a
    19  mental health care decision inconsistent with the laws of this
    20  Commonwealth.
    21     SECTION 2.  SECTION 7203(D) OF TITLE 20 IS AMENDED TO READ:    <--
    22  § 7203.  PRUDENT INVESTOR RULE.
    23     * * *
    24     (D)  REQUIREMENTS FOR CHARITABLE TRUSTS [HOLDING A
    25  CONTROLLING INTEREST IN] HAVING VOTING CONTROL OF CERTAIN
    26  PUBLICLY TRADED BUSINESS CORPORATIONS.--
    27         (1)  NOTWITHSTANDING ANY OTHER LEGAL REQUIREMENT OR
    28     PROCESS WHICH MAY INCLUDE COURT REVIEW OF THE ACTIVITIES OF A
    29     CHARITABLE TRUST, A FIDUCIARY FOR A CHARITABLE TRUST WITH A
    30     MAJORITY OF ITS BENEFICIARIES AT A PRINCIPAL LOCATION WITHIN
    20030H2036B4779                 - 43 -     

     1     THIS COMMONWEALTH [HOLDING A CONTROLLING INTEREST IN] HAVING
     2     VOTING CONTROL OF A PUBLICLY TRADED BUSINESS CORPORATION
     3     RECEIVED AS AN ASSET FROM THE SETTLOR SHALL NOT CONSUMMATE
     4     ANY [INVESTMENT OR MANAGEMENT DECISION EXECUTING A CHANGE IN
     5     THE TRUST'S] TRANSACTION, OR VOTE TO PERMIT CONSUMMATION OF
     6     OR OTHERWISE ACT TO CONSUMMATE ANY TRANSACTION, WHICH WOULD
     7     RESULT IN THE TRUST NO LONGER HAVING VOTING CONTROL OF THAT
     8     CORPORATION, BY SALE, MERGER, CONSOLIDATION OR OTHERWISE,
     9     WITHOUT:
    10             (I)  SERVING NOTICE UPON THE ATTORNEY GENERAL AT
    11         LEAST 60 DAYS PRIOR TO [EXECUTING] THE [CHANGE IN
    12         CONTROL] CONSUMMATION OF THE TRANSACTION; AND
    13             (II)  DIRECTING THAT AT LEAST 30 DAYS' PRIOR NOTICE
    14         OF THE [EXECUTION OF THE CHANGE IN CONTROL] CONSUMMATION
    15         OF THE TRANSACTION BE PROVIDED BY THE PUBLICLY TRADED
    16         BUSINESS CORPORATION CONTROLLED BY THE TRUST TO EMPLOYEES
    17         OF [THE PUBLICLY TRADED BUSINESS] THAT CORPORATION [HELD
    18         BY THE TRUST] WHO ARE LOCATED IN THIS COMMONWEALTH.
    19         (2)  IN ADDITION TO ANY OTHER POWER OR DUTY PROVIDED BY
    20     LAW, THE ATTORNEY GENERAL ALSO HAS THE POWER TO [OBTAIN] SEEK
    21     JUDICIAL REVIEW PURSUANT TO THIS SUBSECTION FROM THE COURT
    22     HAVING JURISDICTION OVER THE TRUST IF THE ATTORNEY GENERAL
    23     CONCLUDES THAT THE [FIDUCIARY SHOULD BE PREVENTED FROM
    24     EXECUTING SUCH A CHANGE IN CONTROL.] CONSUMMATION OF A
    25     TRANSACTION DESCRIBED IN PARAGRAPH (1) IS UNNECESSARY FOR THE
    26     FUTURE ECONOMIC VIABILITY OF THE CORPORATION AND WOULD
    27     CONSTITUTE A FAILURE TO COMPLY WITH THE PROVISIONS OF
    28     SUBSECTION (C) OR AN IMPAIRMENT OF THE CHARITABLE PURPOSE OF
    29     THE TRUST.
    30         (3)  IN [OBTAINING JUDICIAL APPROVAL] A JUDICIAL
    20030H2036B4779                 - 44 -     

     1     PROCEEDING COMMENCED BY THE ATTORNEY GENERAL UNDER THIS
     2     SUBSECTION, THE [FIDUCIARY] ATTORNEY GENERAL MUST PROVE BY
     3     [CLEAR AND CONVINCING] A PREPONDERANCE OF THE EVIDENCE THAT
     4     [EXECUTING THE CHANGE IN THE TRUST'S] CONSUMMATION OF A
     5     TRANSACTION WHICH WOULD RESULT IN THE CHARITABLE TRUST NO
     6     LONGER HAVING VOTING CONTROL OF THE CORPORATION [IS NECESSARY
     7     TO MAINTAIN THE ECONOMIC VIABILITY OF THE CORPORATION AND
     8     PREVENT A SIGNIFICANT DIMINUTION OF TRUST ASSETS OR TO AVOID]
     9     IS UNNECESSARY FOR THE FUTURE ECONOMIC VIABILITY OF THE
    10     CORPORATION AND MUST BE PREVENTED IN ORDER TO AVOID
    11     NONCOMPLIANCE WITH THE PROVISIONS OF SUBSECTION (C) OR AN
    12     IMPAIRMENT OF THE CHARITABLE PURPOSE OF THE TRUST.
    13         (3.1)  IF A FIDUCIARY PROVIDES THE NOTICE UNDER PARAGRAPH
    14     (1)(I), THE FOLLOWING APPLY:
    15             (I)  EXCEPT AS SET FORTH IN SUBPARAGRAPH (II), UPON
    16         EXPIRATION OF THE NOTICE PERIOD UNDER PARAGRAPH (1)(I),
    17         THE FIDUCIARY MAY:
    18                 (A)  VOTE TO PERMIT CONSUMMATION OF A TRANSACTION
    19             DESCRIBED IN PARAGRAPH (1); OR
    20                 (B)  OTHERWISE ACT TO CONSUMMATE THE TRANSACTION
    21             DESCRIBED IN PARAGRAPH (1).
    22             (II)  THE FIDUCIARY HAS NO AUTHORITY UNDER
    23         SUBPARAGRAPH (I) IF THE ATTORNEY GENERAL HAS, WITHIN 30
    24         DAYS OF RECEIVING THE NOTICE UNDER PARAGRAPH (1)(I),
    25         COMMENCED A JUDICIAL PROCEEDING UNDER PARAGRAPH (2).
    26             (III)  IF THE FIDUCIARY IS ENJOINED IN A JUDICIAL
    27         PROCEEDING UNDER SUBPARAGRAPH (II), THE FIDUCIARY SHALL
    28         NOT HAVE AUTHORITY UNDER SUBPARAGRAPH (I)(A) OR (B)
    29         UNLESS THE INJUNCTION IS DISSOLVED BY:
    30                 (A)  STIPULATION OF THE FIDUCIARY AND THE
    20030H2036B4779                 - 45 -     

     1             ATTORNEY GENERAL; OR
     2                 (B)  AN ORDER OF A COURT OF COMPETENT
     3             JURISDICTION WHICH IS NOT SUBJECT TO FURTHER JUDICIAL
     4             REVIEW AS OF RIGHT.
     5         (4)  IN THE EVENT COURT APPROVAL TO CONSUMMATE A
     6     TRANSACTION DESCRIBED IN PARAGRAPH (1) IS OBTAINED PURSUANT
     7     TO THIS SUBSECTION, THE COURT SHALL ENSURE THAT THE
     8     PROVISIONS OF 15 PA.C.S. CH. 25 SUBCHS. I (RELATING TO
     9     SEVERANCE COMPENSATION FOR EMPLOYEES TERMINATED FOLLOWING
    10     CERTAIN CONTROL-SHARE ACQUISITIONS) AND J (RELATING TO
    11     BUSINESS COMBINATION TRANSACTIONS - LABOR CONTRACTS) APPLY TO
    12     THE [EXECUTION OF A CHANGE IN THE TRUST'S CONTROL EFFECTUATED
    13     BY THE FIDUCIARY OF A CHARITABLE TRUST WITH BENEFICIARIES AT
    14     A PRINCIPAL LOCATION WITHIN THIS COMMONWEALTH HOLDING A
    15     CONTROLLING INTEREST IN A PUBLICLY TRADED] BUSINESS
    16     CORPORATION [RECEIVED AS AN ASSET FROM THE SETTLOR.]
    17     DESCRIBED IN PARAGRAPH (1) UPON THE CONSUMMATION OF THE
    18     TRANSACTION.
    19         (5)  A FIDUCIARY OF A CHARITABLE TRUST WITH A MAJORITY OF
    20     ITS BENEFICIARIES AT A PRINCIPAL LOCATION WITHIN THIS
    21     COMMONWEALTH [HOLDING A CONTROLLING INTEREST IN] HAVING
    22     VOTING CONTROL OF A PUBLICLY TRADED BUSINESS CORPORATION
    23     RECEIVED AS AN ASSET FROM THE SETTLOR SHALL NOT BE SUBJECT TO
    24     LIABILITY FOR THE COMMERCIALLY REASONABLE SALE OF CERTAIN
    25     SHARES OF THE CORPORATION NOT NECESSARY TO MAINTAIN VOTING
    26     CONTROL AND FOR WHICH NO CONTROL PREMIUM IS REALIZED IF THE
    27     FIDUCIARY REASONABLY DETERMINED THAT SUCH SALE WAS AUTHORIZED
    28     IN A MANNER CONSISTENT WITH THE REQUIREMENTS OF THIS SECTION
    29     AND OTHER APPLICABLE PROVISIONS OF THIS TITLE.
    30         (6)  THE REQUIREMENTS OF THIS SUBSECTION SHALL NOT APPLY
    20030H2036B4779                 - 46 -     

     1     TO A NONCHARITABLE TRUST, INCLUDING A NONCHARITABLE TRUST
     2     WITH A CHARITABLE REMAINDER AND A CHARITABLE TRUST WHICH
     3     REVERTS TO NONCHARITABLE PURPOSES.
     4         (7)  AS USED IN THIS SUBSECTION, THE TERM "VOTING
     5     CONTROL" MEANS A MAJORITY OF THE VOTING POWER OF THE
     6     OUTSTANDING SHARES OF STOCK ENTITLED TO VOTE ON THE ELECTION
     7     OF DIRECTORS.
     8     SECTION 3.  SECTION 4 OF THE ACT OF NOVEMBER 6, 2002
     9  (P.L.1101, NO.133), ENTITLED "AN ACT AMENDING TITLE 20
    10  (DECEDENTS, ESTATES AND FIDUCIARIES) OF THE PENNSYLVANIA
    11  CONSOLIDATED STATUTES, FURTHER PROVIDING FOR THE PRUDENT
    12  INVESTOR RULE; CODIFYING EXISTING LAW SETTING FORTH THE
    13  APPLICABILITY OF PROVISIONS RELATING TO DIVERSIFICATION; AND
    14  MAKING A REPEAL," IS REPEALED.
    15     Section 2 4.  The provisions of this act are severable. If     <--
    16  any provision of this act or its application to any person or
    17  circumstance is held invalid, the invalidity shall not affect
    18  other provisions or applications of this act which can be given
    19  effect without the invalid provision or application.
    20     Section 3.  This act shall take effect in 60 days.             <--
    21     SECTION 5.  THIS ACT SHALL TAKE EFFECT AS FOLLOWS:             <--
    22         (1)  THE FOLLOWING PROVISIONS SHALL TAKE EFFECT
    23     IMMEDIATELY:
    24             (I)  THE AMENDMENT OF 20 PA.C.S. § 7203(D).
    25             (II)  SECTION 3 OF THIS ACT.
    26             (III)  THIS SECTION.
    27         (2)  THE REMAINDER OF THIS ACT SHALL TAKE EFFECT IN 60
    28     DAYS.


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