The Importance of Health Care Powers of Attorney and Living Wills
Published on Tuesday, 12 July 2011 08:10 Written by Julie L. Schneck
Making a Pennsylvania health care Power of Attorney, in conjunction with a Living Will keeps important decisions in the hands of those you trust. Having the right legal documents prepared before you become unable to dictate your own medical care because of an illness or accident assures you that your wishes will be heard. If you do not have these documents drafted and neglect to name someone you trust to oversee your care, these important matters can be placed in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer. There are two basic kinds of health care documents that everyone should have prepared:
Health Care Power of Attorney
First, you'll need a document naming a trusted person to direct your health care if you are unable to do so yourself. This document is called a Health Care Power of Attorney. You can use this document to name someone (your health care agent) to oversee your health care wishes and make any necessary medical decisions for you.
You can give your health care agent as much or as little power as feels comfortable to you. Most people give their health care agent comprehensive power to supervise their care.
Recognizing this, the power of attorney forms in Pennsylvania give your agent the authority to make all health care decisions for you unless you specifically place limits on that authority in the document. This means that your agent will normally be permitted to consent (or refuse consent) to any medical treatment that affects you physically or mentally, hire or fire medical personnel, make decisions about the best medical facilities for you, gain access to medical records and other personal information, and get court authorization, if required, to obtain or withhold medical treatment, if for any reason a hospital or doctor does not honor your living will or the authority of your health care agent.
Living Will
The second important document you should have sets out the types of medical treatment you would or would not like to receive in certain situations. This form is called a Living Will. A Living Will bears no relation to the conventional will or living trust used to leave property at death; it's strictly a place to spell out your health care preferences.
Living Wills ask you whether or not you want to receive life-prolonging treatments at the end of life. Such procedures typically include transfusions of blood and blood products, cardiopulmonary resuscitation (CPR), administration of drugs, use of a respirator, and surgery.
In Pennsylvania, the person you name to make decisions for you in your health care power of attorney is called your “agent”. For your Living Will, the person is called your “surrogate”. Most people name a spouse, partner, relative, or close friend as their agent. Under Pennsylvania law, your agent may not be your attending physician or other health care provider (unless related to you by blood, marriage or adoption) or an owner, operator or employee of a health care provider from which you are receiving care (unless related to you by blood, marriage or adoption).
Your health care documents take effect if your doctor determines that you lack the capacity to make your own health care decisions. Lacking capacity usually means that you are unable to communicate your own wishes for care, either orally, in writing, or through gestures, and that you can't understand the nature and consequences of the health care choices that are available to you. Practically speaking, this means that if you are so ill or injured that you cannot express your health care wishes in any way, your documents will be effectual. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care agent or surrogate or close relatives) will decide whether it is time for your health care documents to become operative. Your written wishes for health care remain effective as long as you are alive, unless you specifically revoke your documents or a court steps in.
Court involvement is extremely rare in health care situations. Most judges recognize that a court is normally not the right place to make these important decisions. However, if your health care is the subject of a dispute and someone questions the validity of your health care directives, the matter may end up before a judge. Furthermore, if anyone doubts that you had the mental capacity to prepare a legally valid health care document, that person can ask a court to invalidate your document. The burden of proving that you were not of sound mind when you made your document falls on the person who challenges its validity. The law presumes that you had the mental capacity to make your health care documents.
It is also possible that a court could invalidate your document if it wasn't properly completed. For instance, if you did not meet your state's requirements for having the document notarized or witnessed. If this happens, however, it is still likely that any wishes for health care you set out in the document will be followed, as long as they are clearly expressed and you were of sound mind when the documents were prepared. Your wishes won't be ignored simply because of a technical error.
If, after your health care documents take effect, someone believes that your health care agent is not acting according to your wishes or in your best interests, the concerned person can go to court and ask for an investigation of your agent's behavior. If a court finds that your agent is acting improperly and revokes his or her authority, the job will go first to an alternate agent you named in your document. If there is no available alternate, or if the court invalidates your entire document for one of the reasons discussed just above, a conservator or guardian will be appointed to make health care decisions for you.
Because there are many different nuances with each health care document created, it is best to have these documents prepared by an attorney who has experience in drafting estate plans.
Contact any of the firm's attorneys at (724) 935-1400 for more information or use our contact form to send us a message.