Act 169 made significant changes to Health Care Power of Attorney documents, and Advance Health Care Directives (which are often referred to as Living Wills and for the purpose of this article will hereinafter be referred to as “Living Wills”). This Act affects anyone who already has a Health Care Power of Attorney and/or Living Will or anyone who is planning to enact them.

While your existing documents may still be honored by Health Care Providers, the recent changes to the law should be recognized and understood.
 

First of all, many people get the above-mentioned terms confused, or use them incorrectly.  To clarify: 

A Health Care Power of Attorney is a document which lets an individual choose an Agent to make decisions about that individual’s medical care, in accordance with their wishes in the event that the individual is unable to make such decisions.

A Living Will is a document which states what an individual’s wishes are in regard to receiving medical treatment or a specific desire not to have certain treatment in the event that they are unable to make those decisions for themselves. A Living Will is also often referred to as an Advanced Health Care Directive.

Often the above are combined into one document, but they are still separate and distinct entities with very different purposes.  

Major Changes in ACT 169

• Replacement of “Terminal Condition” with “End-stage Medical Condition”
• Defines “Competent”
• Re-defines “Incompetent”
• Defines “Permanently Unconscious”
• Defines “Life-sustaining Treatment” 

What does all this mean and how does it affect me or my loved ones?

The changes put in place by ACT 169 have codified several aspects of Health Care Planning and the duties and liabilities of Health Care Providers.

Some of these changes include the definition of terms that were previously undefined. Some of the changes replace old phrases with new ones, in order to benefit patients and health care facilities alike. From a legal standpoint, a Physician is not liable for following a living will. This change should make it more practical for a Physician to comply with the directives in a Living Will, which may have otherwise been overlooked in the past.

These changes also give individuals greater control in expressing their wishes about what treatments they do and do not want. They also continue to give individuals the ability to choose a Health Care Agent, and in seeing that their wishes are carried out.

Furthermore, the changes provide guidance to those people drafting Health Care Power of Attorney Documents and Living Wills, and allow the documents to be drafted in such a way to avoid confusion or questions.

Do I need a new Health Care Power of Attorney and/or Living Will?

This is a decision that should be made after consulting an attorney, who is knowledgeable about the changes in the law.

Selected Definitions from ACT 169:

Ø      “Health care power of attorney.” A writing made by a principal designating an individual to make health care decisions for the principal.

Ø      “Health care representative.” An individual authorized under section 5461 (relating to decisions by health care representative) to make health care decisions for a principal.

Ø      “Living will.” A writing made in accordance with this chapter that expresses a principal’s wishes and instructions for health care and health care directions when the principal is determined to be incompetent and has an end-stage medical condition or is permanently unconscious.

Ø      “End-stage medical condition.”  An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment. Except as specifically set forth in an advance health care directive, the term is not intended to preclude treatment of a disease, illness or physical, mental, cognitive or intellectual condition, even if incurable and irreversible and regardless of severity, if both of the following apply:

(1) The patient would benefit from the medical treatment, including palliative care.

(2) Such treatment would not merely prolong the process of dying.

Ø      “Competent.” A condition in which an individual, when provided appropriate medical information, communication supports and technical assistance, is documented by a health care provider to do all of the following:

(1) Understand the potential material benefits, risks and alternatives involved in a specific proposed health care decision.

(2) Make that health care decision on his own behalf.

(3) Communicate that health care decision to any other person.

This term is intended to permit individuals to be found competent to make some health care decisions, but incompetent to make others.

Ø      “Incompetent.” A condition in which an individual despite being provided appropriate medical information, communication supports and technical assistance, is documented by a health care provider to be:

(1) unable to understand the potential material benefits, risks and alternatives involved in a specific proposed health care decision;

(2) unable to make that health care decision on his own behalf; or

(3) unable to communicate that health care decision to any other person.

The term is intended to permit individuals to be found incompetent to make some health care decisions, but competent to make others.

Ø      “Permanently unconscious.” A medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, an irreversible vegetative state or irreversible coma.

Ø      “Life-sustaining treatment.” Any medical procedure or intervention that, when administered to a patient or principal who has an end-stage medical condition or is permanently unconscious, will serve only to prolong the process of dying or maintain the individual in a state of permanent unconsciousness. In the case of an individual with an advance health care directive or order, the term includes nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means if the advance health care directive or order so specifically provides.