PRIOR PRINTER'S NOS. 178, 1799 PRINTER'S NO. 1933
No. 172 Session of 1999
INTRODUCED BY GREENLEAF, LEMMOND, O'PAKE, WHITE, BELL, HOLL,
WOZNIAK AND BOSCOLA, JANUARY 21, 1999
AS AMENDED ON THIRD CONSIDERATION, MAY 8, 2000
AN ACT
1 Amending Titles 18 (Crimes and Offenses) and 20 (Decedents,
2 Estates and Fiduciaries) of the Pennsylvania Consolidated
3 Statutes, further providing for neglect of care-dependent
4 person and for advance directives for health care; providing <--
5 for out-of-hospital do-not-resuscitate orders; granting
6 powers to and imposing duties upon the Department of Health;
7 imposing penalties; adding provisions relating to health care
8 agents and representatives; and making editorial changes.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Section 2713(e) of Title 18 of the Pennsylvania
12 Consolidated Statutes is amended to read:
13 § 2713. Neglect of care-dependent person.
14 * * *
15 (e) Treatment in conformance with care-dependent person's
16 right to accept or refuse services.--A caretaker or any other
17 individual or facility may offer an affirmative defense to
18 charges filed pursuant to this section if the caretaker,
19 individual or facility can demonstrate through a preponderance
20 of the evidence that the alleged violations result directly
1 from:
2 (1) the caretaker's, individual's or facility's lawful
3 compliance with a care-dependent person's advance directive
4 for health care as provided in 20 Pa.C.S. Ch. 54 (relating to
5 advance directive for health care);
6 (2) the caretaker's, individual's or facility's lawful
7 compliance with the care-dependent person's written, signed
8 and witnessed instructions, composed when the care-dependent
9 person is competent as to the treatment he wishes to receive;
10 (3) the caretaker's, individual's or facility's lawful
11 compliance with the direction of the care-dependent person's
12 [attorney-in-fact] agent acting pursuant to a lawful durable
13 power of attorney; [or]
14 (4) the caretaker's, individual's or facility's lawful
15 compliance with a "Do Not Resuscitate" order written and
16 signed by the care-dependent person's attending physician[.];
17 or
18 (5) the caretaker's, individual's or facility's lawful
19 compliance with the direction of the care-dependent person's
20 health care agent acting pursuant to a lawful health care
21 power of attorney.
22 * * *
23 SECTION 2. SECTION 711(22) OF TITLE 20 IS AMENDED TO READ: <--
24 § 711. MANDATORY EXERCISE OF JURISDICTION THROUGH ORPHANS'
25 COURT DIVISION IN GENERAL.
26 EXCEPT AS PROVIDED IN SECTION 712 (RELATING TO NONMANDATORY
27 EXERCISE OF JURISDICTION THROUGH THE ORPHANS' COURT DIVISION)
28 AND SECTION 713 (RELATING TO SPECIAL PROVISIONS FOR PHILADELPHIA
29 COUNTY), THE JURISDICTION OF THE COURT OF COMMON PLEAS OVER THE
30 FOLLOWING SHALL BE EXERCISED THROUGH ITS ORPHANS' COURT
19990S0172B1933 - 2 -
1 DIVISION:
2 * * *
3 (22) AGENTS.--ALL MATTERS PERTAINING TO THE EXERCISE OF
4 POWERS BY AGENTS ACTING UNDER POWERS OF ATTORNEY AS PROVIDED
5 IN CHAPTER 56 (RELATING TO POWERS OF ATTORNEY) OR IN
6 SUBCHAPTER C OF CHAPTER 54 (RELATING TO HEALTH CARE AGENTS
7 AND REPRESENTATIVES).
8 Section 2 3. The heading of Chapter 54 of Title 20 is <--
9 amended to read:
10 CHAPTER 54
11 [ADVANCE DIRECTIVE FOR] HEALTH CARE
12 Section 3 4. Chapter 54 of Title 20 is amended by adding a <--
13 subchapter to read:
14 SUBCHAPTER A
15 PRELIMINARY PROVISIONS
16 Sec.
17 5401. Definitions.
18 § 5401. Definitions.
19 The following words and phrases when used in this chapter
20 shall have the meanings given to them in this section unless the
21 context clearly indicates otherwise:
22 "Attending physician." The physician who has primary
23 responsibility for the treatment and care of a declarant or
24 principal.
25 "Declarant." An individual who makes a declaration in
26 accordance with Subchapter B (relating to advance directive for
27 health care). The term includes an emancipated minor. <--
28 "Declaration." A written document voluntarily executed by
29 the declarant in accordance with Subchapter B (relating to
30 advance directive for health care).
19990S0172B1933 - 3 -
1 "Health care." Any care, treatment, service or procedure to
2 maintain, diagnose, treat or provide for physical or mental
3 health, custodial or personal care, including any medication
4 program, therapeutical and surgical procedure and life-
5 sustaining treatment.
6 "Health care agent." An individual designated by a principal
7 in a health care power of attorney.
8 "Health care decision." A decision regarding an individual's
9 health care, including, but not limited to:
10 (1) Selection and discharge of health care providers.
11 (2) Approval or disapproval of diagnostic tests,
12 surgical procedures and programs of medication.
13 (3) Directions to initiate, continue, withhold or
14 withdraw all forms of life-sustaining treatment, including
15 orders not to resuscitate.
16 "Health care power of attorney." A writing made by a
17 principal designating an individual to make health care
18 decisions for the principal.
19 "Health care provider." A person who is licensed, certified
20 or otherwise authorized by the laws of this Commonwealth to
21 administer or provide health care in the ordinary course of
22 business or practice of a profession. The term includes
23 personnel recognized under the act of July 3, 1985 (P.L.164,
24 No.45), known as the Emergency Medical Services Act.
25 "Health care representative." An individual authorized under
26 section 5428 (relating to decisions by health care
27 representative) to make health care decisions for a principal.
28 "Incompetent." The lack of sufficient capacity for an
29 individual to make or communicate decisions concerning that
30 individual.
19990S0172B1933 - 4 -
1 "Life-sustaining treatment." Any medical procedure or
2 intervention that, when administered to a declarant or principal
3 who has been determined to be in a terminal condition or to be
4 permanently unconscious, will serve only to prolong the process
5 of dying or to maintain the individual in a state of permanent
6 unconsciousness. Life-sustaining treatment shall include
7 nutrition and hydration administered by gastric tube or
8 intravenously or any other artificial or invasive means if the
9 declaration or health care power of attorney of the individual
10 so specifically provides.
11 "Medical command physician." A licensed physician who is
12 authorized to give medical command under the act of July 3, 1985
13 (P.L.164, No.45), known as the Emergency Medical Services Act.
14 "Permanently unconscious." A medical condition that has been
15 diagnosed in accordance with currently accepted medical
16 standards and with reasonable medical certainty as total and
17 irreversible loss of consciousness and capacity for interaction
18 with the environment. The term includes, without limitation, an
19 irreversible vegetative state or irreversible coma.
20 "Person." Any individual, corporation, partnership,
21 association or other similar entity, or any Federal, State or
22 local government or governmental agency.
23 "Principal." An individual who executes a health care power
24 of attorney, who designates an individual to act or disqualifies
25 an individual from acting as a health care representative, or an
26 individual for whom a health care representative is acting.
27 "Terminal condition." An incurable and irreversible medical
28 condition in an advanced state caused by injury, disease or
29 physical illness which will, in the opinion of the attending
30 physician, to a reasonable degree of medical certainty, result
19990S0172B1933 - 5 -
1 in death regardless of the continued application of life-
2 sustaining treatment.
3 Section 4 5. Chapter 54 of Title 20 is amended by adding a <--
4 subchapter heading to read:
5 SUBCHAPTER B
6 ADVANCE DIRECTIVE FOR HEALTH CARE
7 Section 5 6. Sections 5401, 5402, 5403, 5404, 5405, 5407, <--
8 5409, 5410, 5411, 5412 and 5413 of Title 20 are amended to read:
9 § [5401] 5402. Short title of [chapter] subchapter.
10 This [chapter] subchapter shall be known and may be cited as
11 the Advance Directive for Health Care Act.
12 § [5402] 5403. Legislative findings and intent.
13 (a) Findings.--The General Assembly finds that all competent
14 adults have a qualified right to control decisions relating to
15 their own medical care. This right is subject to certain
16 interests of society, such as the maintenance of ethical
17 standards in the medical profession and the preservation and
18 protection of human life. Modern medical technological
19 procedures make possible the prolongation of human life beyond
20 natural limits. The application of some procedures to an
21 individual suffering a difficult and uncomfortable process of
22 dying may cause loss of patient dignity and secure only
23 continuation of a precarious and burdensome prolongation of
24 life.
25 (b) Intent.--Nothing in this [chapter] subchapter is
26 intended to condone, authorize or approve mercy killing,
27 euthanasia or aided suicide or to permit any affirmative or
28 deliberate act or omission to end life other than as defined in
29 this [chapter] subchapter. Furthermore, this [chapter]
30 subchapter shall create no presumption concerning the intent of
19990S0172B1933 - 6 -
1 any person who has not executed a declaration to consent to the
2 use or withholding of life-sustaining procedures in the event of
3 a terminal condition or a state of permanent unconsciousness.
4 [§ 5403. Definitions.
5 The following words and phrases when used in this chapter
6 shall have the meanings given to them in this section unless the
7 context clearly indicates otherwise:
8 "Attending physician." The physician who has primary
9 responsibility for the treatment and care of the declarant.
10 "Declarant." A person who makes a declaration in accordance
11 with this chapter.
12 "Declaration." A written document voluntarily executed by
13 the declarant in accordance with this chapter.
14 "Health care provider." A person who is licensed or
15 certified by the laws of this Commonwealth to administer health
16 care in the ordinary course of business or practice of a
17 profession. The term includes personnel recognized under the act
18 of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical
19 Services Act.
20 "Incompetent." The lack of sufficient capacity for a person
21 to make or communicate decisions concerning himself.
22 "Life-sustaining treatment." Any medical procedure or
23 intervention that, when administered to a qualified patient,
24 will serve only to prolong the process of dying or to maintain
25 the patient in a state of permanent unconsciousness. Life-
26 sustaining treatment shall include nutrition and hydration
27 administered by gastric tube or intravenously or any other
28 artificial or invasive means if the declaration of the qualified
29 patient so specifically provides.
30 "Medical command physician." A licensed physician who is
19990S0172B1933 - 7 -
1 authorized to give medical command under the act of July 3, 1985
2 (P.L.164, No.45), known as the Emergency Medical Services Act.
3 "Permanently unconscious." A medical condition that has been
4 diagnosed in accordance with currently accepted medical
5 standards and with reasonable medical certainty as total and
6 irreversible loss of consciousness and capacity for interaction
7 with the environment. The term includes, without limitation, a
8 persistent vegetative state or irreversible coma.
9 "Person." An individual, corporation, partnership,
10 association or Federal, State or local government or
11 governmental agency.
12 "Qualified patient." A person who has executed a declaration
13 and who has been determined to be in a terminal condition or to
14 be permanently unconscious.
15 "Terminal condition." An incurable and irreversible medical
16 condition in an advanced state caused by injury, disease or
17 physical illness which will, in the opinion of the attending
18 physician, to a reasonable degree of medical certainty, result
19 in death regardless of the continued application of life-
20 sustaining treatment.]
21 § 5404. Declaration.
22 (a) Execution.--An individual of sound mind who is 18 years
23 of age or older or who has graduated from high school or has
24 married may execute [at any time] a declaration governing the
25 initiation, continuation, withholding or withdrawal of life-
26 sustaining treatment. The declaration [must] shall be signed and
27 dated by the declarant by signature or mark, or by another on
28 behalf of and at the direction of the declarant[, and must]. It
29 shall be witnessed by two individuals each of whom is 18 years
30 of age or older. A witness shall not be the [person] individual
19990S0172B1933 - 8 -
1 who signed the declaration on behalf of and at the direction of
2 the declarant. Neither a health care provider nor its agent
3 shall sign a declaration on behalf of and at the direction of
4 the declarant if that health care provider or agent provides
5 health care services to the declarant.
6 (b) Form.--A declaration may [but need not be in the
7 following form] be in any written form, including the following
8 form, expressing the wishes of the declarant regarding the
9 initiation, continuation, withholding or withdrawal of life-
10 sustaining treatment and may include other specific directions,
11 including, but not limited to, designation of another [person]
12 individual to make the treatment decision for the declarant if
13 the declarant is incompetent and is determined to be in a
14 terminal condition or to be permanently unconscious.
15 DECLARATION
16 I, , being of sound mind, willfully and
17 voluntarily make this declaration to be followed if I become
18 incompetent. This declaration reflects my firm and settled
19 commitment to refuse life-sustaining treatment under the
20 circumstances indicated below.
21 I direct my attending physician to withhold or withdraw
22 life-sustaining treatment that serves only to prolong the
23 process of my dying, if I should be in a terminal condition
24 or in a state of permanent unconsciousness.
25 I direct that treatment be limited to measures to keep me
26 comfortable and to relieve pain, including any pain that
27 might occur by withholding or withdrawing life-sustaining
28 treatment.
29 [In addition, if I am in the condition described above, I
30 feel especially strong about the following forms of
19990S0172B1933 - 9 -
1 treatment:
2 I ( ) do ( ) do not want cardiac resuscitation.
3 I ( ) do ( ) do not want mechanical respiration.
4 I ( ) do ( ) do not want tube feeding or any other
5 artificial or invasive form of nutrition (food) or hydration
6 (water).
7 I ( ) do ( ) do not want blood or blood products.
8 I ( ) do ( ) do not want any form of surgery or invasive
9 diagnostic tests.
10 I ( ) do ( ) do not want kidney dialysis.
11 I ( ) do ( ) do not want antibiotics.
12 I realize that if I do not specifically indicate my
13 preference regarding any of the forms of treatment listed
14 above, I may receive that form of treatment.]
15 Other instructions:
16 If I am in the condition described above:
17 I ( ) do ( ) do not want tube feeding or any other
18 artificial or invasive form of nutrition (food) or hydration
19 (water).
20 I ( ) do ( ) do not want to designate another person as
21 my surrogate to make medical treatment decisions for me if I
22 should be incompetent and in a terminal condition or in a
23 state of permanent unconsciousness. Name and address of
24 surrogate (if applicable):
25 Name and address of substitute surrogate (if surrogate
26 designated above is unable to serve):
27 I ( ) do ( ) do not want to make an anatomical gift of
28 all or part of my body, subject to the following limitations,
29 if any:
30 I made this declaration on the day of (month,
19990S0172B1933 - 10 -
1 year).
2 Declarant's signature:
3 Declarant's address:
4 The declarant or the person on behalf of and at the
5 direction of the declarant knowingly and voluntarily signed
6 this writing by signature or mark in my presence.
7 Witness's signature:
8 Witness's address:
9 Witness's signature:
10 Witness's address:
11 (c) Invalidity of specific direction.--Should any specific
12 direction in the declaration be held to be invalid, the
13 invalidity shall not [offset] negate other directions of the
14 declaration which can be effected without the invalid direction.
15 (d) Medical record.--A physician or other health care
16 provider [who is furnished] to whom a copy of the declaration is
17 furnished shall make it a part of the declarant's medical record
18 and, if unwilling to comply with the declaration, promptly so
19 advise the declarant.
20 § 5405. When declaration becomes operative.
21 A declaration becomes operative when:
22 (1) a copy is provided to the attending physician; and
23 (2) the declarant is determined by the attending
24 physician to be incompetent and in a terminal condition or in
25 a state of permanent unconsciousness.
26 When the declaration becomes operative, the attending physician
27 and other health care providers shall act in accordance with its
28 provisions or comply with the transfer provisions of section
29 5409 (relating to unwillingness to comply[;] and transfer of
30 declarant).
19990S0172B1933 - 11 -
1 § 5407. Liability.
2 (a) General rule.--No physician or other health care
3 provider who, consistent with this [chapter] subchapter, causes
4 or participates in the initiating, continuing, withholding or
5 withdrawal of life-sustaining treatment from a [qualified
6 patient] declarant who has been determined to be in a terminal
7 condition or to be permanently unconscious and who is
8 incompetent shall, as a result thereof, be subject to criminal
9 or civil liability or be found to have committed an act of
10 unprofessional conduct if the attending physician has followed
11 the declarant's wishes as expressed earlier by the declarant in
12 the form of a declaration executed pursuant to this [chapter]
13 subchapter.
14 (b) Absence of declaration.--The absence of a declaration by
15 a patient shall not give rise to any presumption as to the
16 intent of the patient to consent to or to refuse the initiation,
17 continuation [or termination], withholding or withdrawal of
18 life-sustaining treatment.
19 § 5409. Unwillingness to comply[;] and transfer of declarant.
20 (a) Attending physician or health care provider.--If an
21 attending physician or other health care provider cannot in good
22 conscience comply with a declaration or if the policies of the
23 health care provider preclude compliance with a declaration, the
24 attending physician or health care provider shall so inform the
25 declarant, or, if the declarant is incompetent, shall so inform
26 the declarant's surrogate, or, if a surrogate is not named in
27 the declaration, shall so inform the family, guardian or other
28 representative of the declarant. The attending physician or
29 health care provider shall make every reasonable effort to
30 assist in the transfer of the declarant to another physician or
19990S0172B1933 - 12 -
1 health care provider who will comply with the declaration.
2 (b) Employee or staff member of health care provider.--An
3 employee or staff member of a health care provider shall not be
4 required to participate in the withholding or withdrawal of
5 life-sustaining treatment. It shall be unlawful for an employer
6 to discharge or in any other manner to discriminate against an
7 employee or staff member who informs the employer [that he does
8 not] of a wish not to participate in the withholding or
9 withdrawal of life-sustaining treatment. The employer may
10 require the employee or staff member to express [his] such
11 wishes in writing.
12 (c) Liability.--If transfer under subsection (a) is not
13 possible, the provision of life-sustaining treatment to a
14 declarant shall not subject a health care provider to criminal
15 or civil liability or administrative sanction for failure to
16 carry out the provisions of a declaration.
17 § 5410. Effect on suicide and life insurance.
18 (a) Criminal effect.--The withholding or withdrawal of life-
19 sustaining treatment from a [qualified patient] declarant who
20 has been determined to be in a terminal condition or to be
21 permanently unconscious in accordance with the provisions of
22 this [chapter] subchapter shall not, for any purpose, constitute
23 suicide or homicide.
24 (b) Life insurance.--The making of or failure to make a
25 declaration in accordance with this [chapter] subchapter shall
26 not affect in any manner the sale, procurement or issuance of
27 any policy of life insurance nor shall it be deemed to modify
28 the terms of an existing policy of life insurance. No policy of
29 life insurance shall be legally impaired or invalidated in any
30 manner by the withholding or withdrawal of life-sustaining
19990S0172B1933 - 13 -
1 treatment from an insured patient, notwithstanding any term of
2 the policy to the contrary.
3 § 5411. Declaration optional.
4 No physician or other health care provider and no health care
5 service plan, health maintenance organization, insurer issuing
6 disability insurance, self-insured employee welfare benefit
7 plan, nonprofit hospital plan or Federal, State or local
8 government sponsored or operated program shall:
9 (1) require any [person] individual to execute a
10 declaration as a condition for being insured for or receiving
11 health care services; or
12 (2) charge any [person] individual a different rate or
13 fee whether or not the [person] individual executes or has
14 executed a declaration.
15 § 5412. Preservation of existing rights.
16 The provisions of this [chapter] subchapter shall not impair
17 or supersede any existing rights or responsibilities not
18 addressed in this [chapter] subchapter.
19 § 5413. Emergency medical services.
20 (a) Care given prior to declaration taking effect.--Nothing
21 in this [chapter] subchapter shall be construed to make the
22 provisions of a declaration apply to care given to a patient by
23 emergency medical services personnel prior to the declaration's
24 becoming operative under sections 5405 (relating to when
25 declaration becomes operative) and 5408 (relating to duty of
26 physician to confirm terminal condition).
27 (b) Care given after declaration takes effect.--The
28 provisions of a declaration shall apply to care given to a
29 patient by emergency medical services personnel after the
30 declaration becomes operative under sections 5405 and 5408 only
19990S0172B1933 - 14 -
1 if:
2 (1) an original declaration, signed by the declarant or
3 other authorized person, is presented to the emergency
4 medical services personnel. The emergency medical services
5 personnel must immediately notify the medical command
6 physician of the presence of the declaration; or
7 (2) the medical command physician, based on prior
8 notification by the attending physician or other health care
9 provider that a valid and operative declaration exists,
10 directs the emergency medical service personnel according to
11 the provisions of the declaration.
12 (c) Uncertainty regarding validity of declaration.--
13 Emergency medical services personnel confronted with any
14 conflicting information regarding the patient's wishes for life-
15 sustaining treatment shall act according to the accepted
16 treatment protocols and standards appropriate to their level of
17 certification.
18 Section 6 7. Sections 5415 and 5416 of Title 20 are amended <--
19 to read:
20 § 5415. Penalties.
21 Any person who willfully conceals, cancels, alters, defaces,
22 obliterates or damages the declaration of another without the
23 consent of the declarant commits a felony of the third degree.
24 Any person who falsifies or forges the declaration of another,
25 or willfully conceals or withholds personal knowledge of a
26 revocation as provided in section 5406 (relating to revocation),
27 with the intent to cause a withholding or withdrawal of life-
28 sustaining treatment contrary to the wishes of the declarant
29 and, because of such an act, directly causes life-sustaining
30 treatment to be withheld or withdrawn and death to be hastened
19990S0172B1933 - 15 -
1 shall be subject to prosecution for criminal homicide as
2 provided in 18 Pa.C.S. Ch. 25 (relating to criminal homicide).
3 Any person who willfully, by undue influence, fraud or duress,
4 causes a person to execute a declaration pursuant to this
5 [chapter] subchapter commits a felony of the third degree.
6 [§ 5416. Severability.
7 The provisions of this chapter are severable, and, if any
8 word, phrase, clause, sentence, section or provision of the
9 chapter is for any reason held to be unconstitutional, the
10 decision of the court shall not affect or impair any of the
11 remaining provisions of this chapter. It is hereby declared as
12 the legislative intent that this chapter would have been adopted
13 had such unconstitutional word, phrase, clause, sentence,
14 section or provision thereof not been included herein.]
15 Section 7 8. Chapter 54 is amended by adding a subchapter to <--
16 read:
17 SUBCHAPTER C
18 HEALTH CARE AGENTS AND REPRESENTATIVES
19 Sec.
20 5421. Short title of subchapter.
21 5422. General provisions.
22 5423. Form of health care power of attorney.
23 5424. Countermand, amendment and revocation.
24 5425. Operation of health care power of attorney.
25 5426. Appointment of health care agents.
26 5427. Relation of health care agent to court-appointed
27 guardian and other agents.
28 5428. Decisions by health care representative.
29 5429. Duties of attending physician and health care provider.
30 5430. Limitations on liability.
19990S0172B1933 - 16 -
1 5431. Unwillingness to comply and transfer of principal.
2 5432. Effect on life insurance.
3 5433. Conditioning services or action.
4 5434. Criminal penalties.
5 5435. Effect on other State law.
6 5436. Conflicting health care powers of attorney.
7 5437. Validity.
8 § 5421. Short title of subchapter.
9 This subchapter shall be known and may be cited as the Health
10 Care Agents and Representatives Act.
11 § 5422. General provisions.
12 (a) Who may execute a health care power of attorney.--An
13 individual of sound mind who is 18 years of age or older or has
14 graduated from high school or has married may execute a health
15 care power of attorney.
16 (b) Execution.--A health care power of attorney shall be
17 signed and dated by the principal by signature or mark, or by
18 another on behalf of and at the direction of the principal. It
19 shall be witnessed by two individuals, each of whom is 18 years
20 of age or older. A witness shall not be the individual who
21 signed the health care power of attorney on behalf of and at the
22 direction of the principal. Neither a health care provider nor
23 its agent shall sign a health care power of attorney on behalf
24 of and at the direction of the principal if that health care
25 provider or agent provides health care services to the
26 principal.
27 (C) NOTICE AND ACKNOWLEDGMENT.--THE PROVISIONS OF SECTION <--
28 5601(C) AND (D) (RELATING TO GENERAL PROVISIONS) ARE NOT
29 APPLICABLE TO A HEALTH CARE POWER OF ATTORNEY TO THE EXTENT THAT
30 IT EXCLUSIVELY AUTHORIZES THE EXERCISE OF HEALTH CARE POWERS.
19990S0172B1933 - 17 -
1 § 5423. Form of health care power of attorney.
2 (a) Requirements.--A health care power of attorney shall:
3 (1) Identify the principal and appoint the health care
4 agent.
5 (2) Declare that the principal authorizes the health
6 care agent to have authority to make health care decisions on
7 behalf of the principal.
8 (b) Optional provisions.--A health care power of attorney
9 may, but need not:
10 (1) Describe the limitations, if any, that the principal
11 imposes upon the authority of the health care agent.
12 (2) Indicate the intent of the principal regarding the
13 initiation, continuation, withholding or withdrawal of life-
14 sustaining treatment.
15 (3) Indicate whether the principal wants tube feeding or
16 any other artificial or invasive form of nutrition or
17 hydration.
18 (4) Disqualify an individual from acting as a health
19 care representative, prohibit the appointment of a health
20 care representative or provide for an order of priority of
21 appointment of a health care representative pursuant to
22 section 5428(d) (relating to decisions by health care
23 representative).
24 (5) Nominate a guardian of the person of the principal
25 as provided in section 5427(b) (relating to relation of
26 health care agent to court-appointed guardian and other
27 agents).
28 (6) Contain other provisions as the principal may
29 specify regarding the implementation of health care decisions
30 and related actions by the health care agent.
19990S0172B1933 - 18 -
1 (c) Invalidity of specific direction.--Should any specific
2 direction in the health care power of attorney be held to be
3 invalid, the invalidity shall not negate other directions of the
4 health care power of attorney which can be effected without the
5 invalid direction.
6 § 5424. Countermand, amendment and revocation.
7 (a) Countermand of health care decision.--A principal may
8 countermand a health care decision made by the principal's
9 health care agent at any time and in any manner without regard
10 to the principal's mental or physical capacity by personally
11 informing the attending physician or health care provider. The
12 attending physician or health care provider shall make
13 reasonable efforts to inform promptly the health care agent of
14 the countermand. A countermand shall not affect the authority of
15 the health care agent to make other health care decisions in
16 accordance with the health care power of attorney.
17 (b) Amendment.--A principal while of sound mind may amend a
18 health care power of attorney by a writing executed in
19 accordance with the provisions of section 5422(b) (relating to
20 general provisions). An amendment may include the revocation in
21 part of the health care power of attorney or the designation of
22 new or additional health care agents.
23 (c) Divorce.--If the principal's spouse is designated as the
24 principal's health care agent and thereafter either spouse files
25 an action in divorce, the designation of the spouse as health
26 care agent shall be revoked as of the time the action is filed,
27 unless it clearly appears from the health care power of attorney
28 that the designation was intended to continue to be effective
29 notwithstanding the filing of an action in divorce by either
30 spouse.
19990S0172B1933 - 19 -
1 (d) Revocation.--A principal while of sound mind may revoke
2 a health care power of attorney by a writing executed in
3 accordance with the provisions of section 5422(b) or by
4 personally informing the attending physician, health care
5 provider or health care agent that the health care power of
6 attorney is revoked.
7 (e) Effect of revocation.--A physician or other health care
8 provider may rely on the effectiveness of a health care power of
9 attorney unless notified of its revocation. A health care agent,
10 knowing of the revocation, shall not make or attempt to make
11 health care decisions for the principal.
12 § 5425. Operation of health care power of attorney.
13 (a) When operative.--Unless specifically provided otherwise
14 in the health care power of attorney, a health care power of
15 attorney becomes operative when a copy of the health care power
16 of attorney is provided to the attending physician and the
17 attending physician determines that the principal is unable to
18 make or communicate health care decisions and becomes
19 inoperative during such time as, in the determination of the
20 attending physician, the principal is able to make and
21 communicate health care decisions.
22 (b) Duration.--Unless the health care power of attorney
23 states a time of termination, it is valid until revoked by the
24 principal or the principal's guardian of the person,
25 notwithstanding the lapse of time since its execution. Unless
26 specifically provided otherwise in the health care power of
27 attorney, a health care power of attorney becomes inoperative
28 during such time as, in the determination of the attending
29 physician, the principal has the ability to make and communicate
30 health care decisions.
19990S0172B1933 - 20 -
1 (c) Extent of authority of agent.--Except as expressly
2 provided otherwise in a health care power of attorney, and
3 subject to subsection (d), a health care agent shall have the
4 authority to make any and all health care decisions and to
5 exercise any and all rights and powers concerning the
6 principal's care, custody and health care treatment that the
7 principal could have made and exercised. THE AUTHORITY OF A <--
8 HEALTH CARE AGENT MAY EXTEND BEYOND THE PRINCIPAL'S DEATH IN
9 ORDER TO MAKE ANATOMICAL GIFTS, DISPOSE OF THE REMAINS AND
10 CONSENT TO AUTOPSIES.
11 (d) Life-sustaining treatment decisions.--All life-
12 sustaining treatment decisions made by a health care agent shall
13 be subject to sections 5405 (relating to when declaration
14 becomes operative), 5408 (relating to duty of physician to
15 confirm terminal condition) and 5414 (relating to pregnancy).
16 (e) Health care decisions.--After consultation with health
17 care providers, and after consideration of the prognosis and
18 acceptable medical alternatives regarding diagnosis, treatments
19 and side effects, the health care agent shall make health care
20 decisions in accordance with the health care agent's
21 understanding and interpretation of any instructions given by
22 the principal at a time when the principal had the capacity to
23 make and communicate health care decisions. Instructions shall
24 include any declaration made by the principal and any clear
25 written or oral directions which cover the situation presented.
26 In the absence of instructions, the health care agent shall make
27 health care decisions in conformity with the health care agent's
28 assessment of the principal's preferences and values, including
29 religious and moral beliefs. If the health care agent does not
30 know enough about the principal's instructions, preferences and
19990S0172B1933 - 21 -
1 values to make a decision, the health care agent shall act in
2 accordance with the health care agent's assessment of the
3 principal's best interests.
4 (f) Health care information.--Unless specifically provided
5 otherwise in the health care power of attorney, a health care
6 agent has the same rights and limitations as the principal to
7 request, examine, copy and consent or refuse to consent to the
8 disclosure of medical or other health care information.
9 Disclosure of medical or other health care information to a
10 health care agent does not constitute a waiver of any
11 evidentiary privilege or of a right to assert confidentiality.
12 Any health care provider that discloses such information to a
13 health care agent in good faith shall not be liable for that
14 disclosure. A health care agent shall not disclose health care
15 information regarding the principal except as is reasonably
16 necessary to perform the agent's obligations to the principal or
17 as otherwise required by law.
18 (g) Court approval unnecessary.--A health care decision made
19 by a health care agent for a principal is effective without
20 court approval.
21 § 5426. Appointment of health care agents.
22 (a) Multiple and successor health care agents.--A principal
23 may in a health care power of attorney provide for:
24 (1) The appointment of more than one health care agent,
25 who shall act jointly unless the health care power of
26 attorney provides otherwise.
27 (2) The appointment of one or more successor agents who
28 shall serve in the order named in the health care power of
29 attorney, unless the principal expressly directs to the
30 contrary.
19990S0172B1933 - 22 -
1 (b) Limitation on appointment of agent.--Unless related by
2 blood, marriage or adoption, a health care agent may not be the
3 principal's attending physician or other health care provider,
4 nor an owner, operator or employee of a health care provider in
5 which the principal is receiving care.
6 § 5427. Relation of health care agent to court-appointed
7 guardian and other agents.
8 (a) Accountability of health care agent.--If a principal who
9 has executed a health care power of attorney is later
10 adjudicated an incapacitated person and a guardian of the person
11 to make health care decisions is appointed, the health care
12 agent is accountable to the guardian as well as to the
13 principal. The guardian shall have the same power to revoke or
14 amend the health care power of attorney that the principal would
15 have if the principal were not incapacitated.
16 (b) Nomination of guardian of person.--A principal may in a
17 health care power of attorney nominate the guardian of the
18 person for that principal for consideration by the court if
19 incapacity proceedings for the principal's person are thereafter
20 commenced. If the court determines that the appointment of a
21 guardian is necessary, the court shall make its appointment in
22 accordance with the principal's most recent nomination except
23 for good cause or disqualification.
24 (c) Reasonable expenses.--A health care agent may incur
25 reasonable expenses, including the purchase of health care
26 insurance, in fulfilling the health care needs for the principal
27 to the extent the expenses are not otherwise covered by
28 insurance or other similar benefits. Any guardian of the estate
29 of the principal or agent acting on behalf of the principal
30 under a power of attorney if that agent has the power to
19990S0172B1933 - 23 -
1 disburse the principal's funds shall pay for the expenses or
2 reimburse the health care agent for the expenses from the
3 principal's funds.
4 § 5428. Decisions by health care representative.
5 (a) General rule.--A health care representative may make a
6 health care decision for an individual whose attending physician
7 has determined that the individual lacks the ability to make or
8 communicate health care decisions if:
9 (1) the individual is 18 years of age or older or has
10 graduated from high school or has married;
11 (2) the individual does not have a health care power of
12 attorney, or the individual's health care agent is not
13 reasonably available or has indicated an unwillingness to act
14 and no alternate health care agent is reasonably available;
15 and
16 (3) a guardian of the person to make health care
17 decisions has not been appointed for the individual.
18 (b) Exception.--This section does not apply to decisions
19 regarding treatment, care, goods or services that a caretaker is
20 obligated to provide to a care-dependent person pursuant to 18
21 Pa.C.S. § 2713 (relating to neglect of care-dependent person).
22 (c) Extent of authority of health care representative.--The
23 authority of a health care representative shall be the same as
24 provided for a health care agent in sections 5425(c), (d), (e),
25 (f) and (g) (relating to operation of health care power of
26 attorney) and 5427(c) (relating to relation of health care agent
27 to court-appointed guardian and other agents).
28 (d) Who may act as health care representative.--An
29 individual of sound mind may, by a signed writing or by
30 personally informing the attending physician or the health care
19990S0172B1933 - 24 -
1 provider, designate one or more individuals to act as health
2 care representative. In the absence of a designation or if no
3 designee is reasonably available, any member of the following
4 classes who is reasonably available, in descending order of
5 priority, may act as health care representative:
6 (1) the spouse unless an action for divorce is pending;
7 (2) an adult child;
8 (3) a parent;
9 (4) an adult brother or sister;
10 (5) an adult grandchild; or
11 (6) an adult who has exhibited special care and concern
12 for the principal and who is familiar with the principal's
13 personal values.
14 An individual may by a signed writing, including a health care
15 power of attorney, provide for a different order of priority. An
16 individual with a higher priority who is willing to act as a
17 health care representative may assume the authority to act
18 notwithstanding the fact that another individual has previously
19 assumed that authority.
20 (e) Disqualification.--An individual of sound mind may
21 disqualify one or more individuals from acting as health care
22 representative in the same manner as subsection (d) provides for
23 the designation of a health care representative. An individual
24 may also disqualify one or more individuals from acting as
25 health care representative by a health care power of attorney.
26 Upon the petition of any member of the classes set forth in
27 subsection (d), the court may for cause shown disqualify an
28 individual otherwise eligible to serve as a health care
29 representative.
30 (f) Limitation on designation of health care
19990S0172B1933 - 25 -
1 representative.--Unless related by blood, marriage or adoption,
2 a health care representative may not be the principal's
3 attending physician or other health care provider, nor an owner,
4 operator or employee of a health care provider in which the
5 principal is receiving care.
6 (g) Decision of health care representative.--If more than
7 one member of a class assumes authority to act as a health care
8 representative, and they do not agree on a health care decision
9 and the attending physician or health care provider is so
10 informed, the attending physician or health care provider may
11 rely on the decision of a majority of the members of that class
12 who have communicated their views to the attending physician or
13 health care provider. If the class of health care
14 representatives is evenly divided concerning the health care
15 decision and the attending physician or health care provider is
16 so informed, an individual having a lower priority may not act
17 as a health care representative. So long as the class remains
18 evenly divided, no decision shall be deemed made until such time
19 as the parties resolve their disagreement. Notwithstanding such
20 disagreement, nothing in this subsection shall preclude the
21 administration of health care treatment in accordance with
22 accepted standards of medical practice.
23 (h) Duty of health care representative.--Immediately upon
24 assuming authority to act, a health care representative shall
25 communicate the assumption of authority to the members of the
26 principal's family specified in subsection (d) who can be
27 readily contacted.
28 (i) Countermand of health care decision.--A principal may
29 countermand a health care decision made by the health care
30 representative at any time and in any manner without regard to
19990S0172B1933 - 26 -
1 the principal's mental or physical capacity by personally
2 informing the attending physician or health care provider. The
3 attending physician or health care provider shall make
4 reasonable efforts to inform promptly the health care
5 representative of the countermand. A countermand shall not
6 affect the authority of the health care representative to make
7 other health care decisions.
8 (j) Court approval unnecessary.--A health care decision made
9 by a health care representative for a principal is effective
10 without court approval.
11 (k) Written declaration of health care representative.--An
12 attending physician or health care provider may require a person
13 claiming the right to act as health care representative for a
14 principal to provide a written declaration made under penalty of
15 perjury stating facts and circumstances reasonably sufficient to
16 establish the claimed authority.
17 § 5429. Duties of attending physician and health care provider.
18 (a) Communication of health care decision.--Before
19 implementing a health care decision made by a health care agent
20 or by a health care representative, an attending physician or
21 health care provider, whenever possible, shall promptly
22 communicate to the principal the decision made and the identity
23 of the person making the decision.
24 (b) Compliance with decisions of health care agent or health
25 care representative.--An attending physician or health care
26 provider shall comply with health care decisions made by a
27 health care agent, subject to any specific limitations contained
28 in the health care power of attorney, or by a health care
29 representative to the same extent as if the decisions had been
30 made by the principal. However, in the case of a health care <--
19990S0172B1933 - 27 -
1 representative:
2 (1) Health care necessary to preserve life shall be
3 provided to all persons who are neither in a terminal
4 condition nor permanently unconscious, except where a
5 competent person objects to such care on his own behalf.
6 (2) This subsection shall in all circumstances be
7 construed so as to be consistent with the Americans with
8 Disabilities Act of 1990 (Public Law 101-336, 104 Stat. 327).
9 HEALTH CARE NECESSARY TO PRESERVE LIFE SHALL BE PROVIDED TO <--
10 ALL PERSONS WHO ARE NEITHER IN A TERMINAL CONDITION NOR
11 PERMANENTLY UNCONSCIOUS, EXCEPT WHERE A COMPETENT PERSON
12 OBJECTS TO SUCH CARE ON HIS OWN BEHALF OR A HEALTH CARE AGENT
13 OBJECTS ON BEHALF OF THE PRINCIPAL. THIS SUBSECTION SHALL IN
14 ALL CIRCUMSTANCES BE CONSTRUED SO AS TO BE CONSISTENT WITH
15 THE AMERICANS WITH DISABILITIES ACT OF 1990 (PUBLIC LAW 101-
16 336, 104 STAT. 327).
17 (c) Medical record.--Any attending physician or health care
18 provider who is given a health care power of attorney shall
19 arrange for the health care power of attorney or a copy to be
20 placed in the principal's medical record.
21 (d) Medical record entry.--Any attending physician or health
22 care provider to whom an amendment or revocation of a health
23 care power of attorney is communicated or to whom the
24 designation or disqualification of a health care representative
25 is communicated shall promptly enter the information in the
26 principal's medical record and maintain a copy if one is
27 furnished.
28 (e) Record of determination.--Any attending physician who
29 makes a determination that a principal is unable or has regained
30 the ability to make and communicate health care decisions or
19990S0172B1933 - 28 -
1 makes a determination which affects the authority of a health
2 care agent or health care representative shall enter the
3 determination in the principal's medical record and, if
4 possible, shall inform promptly the principal and any health
5 care agent or health care representative of the determination.
6 § 5430. Limitations on liability.
7 (a) Attending physician, health care provider and others.--
8 Any attending physician, health care provider and other person
9 who acts in good faith shall not be subject to civil or criminal
10 liability, discipline for unprofessional conduct or
11 administrative sanctions for:
12 (1) complying with any direction or decision of an
13 individual who the health care provider believes in good
14 faith has authority to act as the principal's health care
15 agent or health care representative so long as, in the case
16 of a health care agent, the direction or decision is not
17 clearly contrary to the terms of the health care power of
18 attorney;
19 (2) declining to comply with a direction or decision of
20 an individual based on a good faith belief that the
21 individual lacks authority to act as the principal's health
22 care agent or health care representative;
23 (3) complying with a health care power of attorney under
24 the assumption that it was valid when made and has not been
25 amended or revoked; or
26 (4) disclosing health care information to another person
27 based upon a good faith belief that the disclosure would be
28 authorized, permitted or required by this subchapter.
29 Any attending physician, health care provider and other person
30 so acting is protected and released to the same extent as if
19990S0172B1933 - 29 -
1 dealing directly with a competent principal.
2 (b) Health care agent.--No health care agent who in good
3 faith acts for the principal and in accordance with the terms of
4 a health care power of attorney, or who fails to act, shall be
5 subject to civil or criminal liability for the action or
6 inaction.
7 (c) Health care representative.--No health care
8 representative who in good faith acts for the principal, or who
9 fails to act, shall be subject to civil or criminal liability
10 for the action or inaction.
11 (d) Death not suicide or homicide.--Death resulting from the
12 withholding or withdrawal of life-sustaining treatment in
13 accordance with the provisions of this subchapter shall not for
14 any purpose constitute suicide or homicide.
15 § 5431. Unwillingness to comply and transfer of principal.
16 (a) Attending physician or health care provider.--If an
17 attending physician or health care provider cannot in good
18 conscience comply with a health care decision of a health care
19 agent or health care representative or if the policies of the
20 health care provider preclude compliance with the health care
21 decision, the attending physician or health care provider shall
22 so inform the health care agent or health care representative.
23 The attending physician or health care provider shall make every
24 reasonable effort to assist in the transfer of the principal to
25 another physician or health care provider who will comply with
26 the health care decision of the health care agent or health care
27 representative.
28 (b) Employee or staff member of health care provider.--An
29 employee or staff member of a health care provider shall not be
30 required to comply with a health care decision of a health care
19990S0172B1933 - 30 -
1 agent or health care representative if the employee's or staff
2 member's good conscience dictates otherwise. It shall be
3 unlawful for an employer to discharge or in any other manner to
4 discriminate against the employee or staff member who informs
5 the employer of an unwillingness to comply based upon good
6 conscience. The employer may require the employee or staff
7 member to express the unwillingness in writing.
8 (c) Liability.--If transfer under subsection (a) is not
9 possible, the provision of life-sustaining treatment to a
10 principal shall not subject an attending physician or health
11 care provider to criminal or civil liability or administrative
12 sanctions for failure to carry out the health care decision.
13 § 5432. Effect on life insurance.
14 The making of or failure to make a health care power of
15 attorney or a designation of a health care representative in
16 accordance with this subchapter shall not affect in any manner
17 the sale, procurement or issuance of any policy of life
18 insurance nor shall it be deemed to modify the terms of an
19 existing policy of life insurance. No policy of life insurance
20 shall be legally impaired or invalidated in any manner by the
21 withholding or withdrawal of life-sustaining treatment from an
22 insured principal, notwithstanding any term of the policy to the
23 contrary.
24 § 5433. Conditioning services or action.
25 No person may require or prevent the execution of a health
26 care power of attorney or the designation of a health care
27 representative as a condition of insuring or providing any type
28 of health care service.
29 § 5434. Criminal penalties.
30 (a) Tampering with a health care power of attorney.--Any
19990S0172B1933 - 31 -
1 person who, without the consent of the principal, willfully
2 conceals, cancels, alters, defaces, obliterates or damages a
3 health care power of attorney or any amendment or revocation or
4 who falsifies or forges a health care power of attorney, its
5 amendment or revocation, and, as a result of that act, directly
6 changes the health care provided to the principal commits a
7 felony of the third degree.
8 (b) Tampering resulting in death.--A person who falsifies or
9 forges a health care power of attorney or willfully conceals or
10 withholds personal knowledge of an amendment or revocation of a
11 health care power of attorney with the intent to cause a
12 withholding or withdrawal of life-sustaining treatment contrary
13 to the intent of the principal and, as a result of that act,
14 directly causes life-sustaining treatment to be withheld or
15 withdrawn and death to the principal to be hastened shall be
16 subject to prosecution for criminal homicide as provided in 18
17 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 § 5435. Effect on other State law.
19 (a) Mental health.--This subchapter shall not affect the
20 requirements of any other laws of this Commonwealth concerning
21 consent to observation, diagnosis, treatment or hospitalization
22 for a mental illness.
23 (b) Prohibited care.--This subchapter shall not authorize a
24 health care agent or health care representative to consent to
25 any health care prohibited by the laws of this Commonwealth.
26 (c) Consent.--This subchapter shall not affect the laws of
27 this Commonwealth concerning:
28 (1) the standard of care of a health care provider
29 required in the administration of health care;
30 (2) when consent is required for health care;
19990S0172B1933 - 32 -
1 (3) informed consent for health care; or
2 (4) consent to health care in an emergency.
3 (d) Preservation of religious rights.--This subchapter shall
4 not prevent a health care agent or health care representative
5 from consenting to health care administered in good faith
6 pursuant to religious tenets of the principal or from
7 withholding consent to health care which is contrary to
8 religious tenets of the principal.
9 (e) Individual's rights.--This subchapter shall not affect
10 the right of an individual to make health care decisions.
11 (f) Disclosure.--The disclosure requirements of section
12 5425(f) (relating to operation of health care power of attorney)
13 shall supersede any provision in any other State statute or
14 regulation which requires the principal to consent to disclosure
15 or which otherwise conflicts with section 5425(f), including,
16 but not limited to:
17 (1) Section 8 of the act of April 14, 1972 (P.L.221,
18 No.63), known as the Pennsylvania Drug and Alcohol Abuse
19 Control Act.
20 (2) Section 111 of the act of July 9, 1976 (P.L.817,
21 No.143), known as the Mental Health Procedures Act.
22 (3) Section 15 of the act of October 5, 1978 (P.L.1109,
23 No.261), known as the Osteopathic Medical Practice Act.
24 (4) Section 41 of the act of December 20, 1985 (P.L.457,
25 No.112), known as the Medical Practice Act of 1985.
26 (5) Section 7 of the act of November 29, 1990 (P.L.585,
27 No.148), known as the Confidentiality of HIV-Related
28 Information Act.
29 The disclosure requirements under section 5425(f) shall not
30 apply to the extent that the disclosure would be prohibited by
19990S0172B1933 - 33 -
1 Federal laws and implementing regulations.
2 § 5436. Conflicting health care powers of attorney.
3 If a provision of a health care power of attorney conflicts
4 with another provision of a health care power of attorney or
5 with a provision of a declaration under Subchapter B (relating
6 to advance directive for health care), the provision of the
7 instrument latest in date of execution shall prevail to the
8 extent of the conflict.
9 § 5437. Validity.
10 This subchapter shall not limit the validity of a health care
11 power of attorney executed prior to the effective date of this
12 subchapter. A health care power of attorney executed in another
13 state or jurisdiction and in conformity with the laws of that
14 state or jurisdiction shall be considered valid in this
15 Commonwealth, except to the extent that the health care power of
16 attorney executed in another state or jurisdiction would allow a
17 health care agent to make a health care decision inconsistent
18 with the laws of this Commonwealth.
19 Section 8 9. Sections 5602(a)(8) and (9) and 5603(h) of <--
20 Title 20 are repealed.
21 Section 9 10. (a) The repeal of 20 Pa.C.S. §§ 5602(a)(8) <--
22 and (9) and 5603(h) shall not affect the authority of an agent
23 operating under any power of attorney relying on those
24 provisions, executed before the effective date of the repeal of
25 those provisions.
26 (b) Nothing in this amendatory act is intended to affect or
27 supersede the holdings in In re Fiori, 543 Pa. 592, 673 A.2d 905
28 (1996).
29 Section 10 11. The amendment of the form of declaration in <--
30 20 Pa.C.S. § 5404(b) shall not affect the validity of any
19990S0172B1933 - 34 -
1 declaration executed pursuant to that form before, on or after
2 the effective date of the amendment of that subsection.
3 Section 11 12. This act shall take effect in 60 days. <--
L11L20BIL/19990S0172B1933 - 35 -