Pennsylvania Living Will and Durable Medical Power of Attorney Example
If you become incapacitated and cannot make healthcare decisions, who makes those decisions? Such an event can be extremely stressful without the added stress of trying to determine “what mom or dad would want?” Who makes decisions when you are incapacitated? How do you express your wishes? How do you make decisions about end-of-life prior to a catastrophic event or terminal diagnosis?
Pennsylvania law provides two important documents to address these situations:
- the Durable Medical Power of Attorney (Healthcare Power of Attorney) and
- the Living Will (or Advance Health Care Directive).
Pennsylvanians can have one or both of these documents in effect. (See example Medical Power of Attorney and Living Will.)
What Is a Pennsylvania Durable Medical Power of Attorney?
The Durable Medical Power of Attorney legally designates another person to act as your Health Care Agent when you become incapacitated (cannot make your own decisions). The Health Care Agent makes decisions about your medical care by “standing in your shoes.” He or she must faithfully carry out all of the powers defined in the Durable Medical Power of Attorney according to your written wishes.
Typically, the Health Care Agent can authorize medical procedures, hire caregivers, take legal action related to medical care, speak with doctors, and authorize admissions to medical facilities.
You can provide legally binding guidance to the Health Care Agent in the Durable Medical Power of Attorney. For example you can provide binding instructions to the Health Care Agent, regarding terminal illness, permanent disability, severe brain damage, resuscitation, etc.
Think of the Durable Medical Power of Attorney as the legal power to carry out your wishes related to medical care any time you become incapacitated—the durable medical power of attorney automatically “kicks-in” upon incapacity.
Some may hear the term, power-of-attorney, and grow concerned (usually because they heard a story that so-and-so had a power of attorney and someone stole all her money). The Durable Medical Power of Attorney is a specialized document addressing only medical issues. To generally pay bills, access checkbooks, or make other non-medical decisions, someone would also need a general power of attorney (a different document).
What Is a Pennsylvania Living Will?
While the Durable Medical Power of Attorney applies generally to any medical situation upon your incapacity, a Living Will (or Advance Health Care Directive) addresses a specific situation: end-stage medical conditions. End-stage medical conditions involve terminal illness, persistent vegetative states, resuscitation, tube feeding, hospice, etc.
The Living Will provides specific instructions for how you want the end-stage situation handled by the Health Care Agent. The Living Will, in concept, eases the burden of making very hard decisions about your loved ones at end-of-life. Rather than struggle with making family decisions at a very emotional and stressful time, the Living Will expresses your wishes ahead of time. Put simply, the Health Care Agent can point to the written document regarding your wishes, which can help de-fuse family disputes and ease remorse (these times are not easy if someone needs to be the decision-maker, without the Living Will, about “pulling the plug”).
What Is a Combined Pennsylvania Durable Medical Power of Attorney and Living Will?
Pennsylvania Law (54 Pa.C.S. § 5471) provides for a combined document. The combined document can be convenient especially in rapidly changing medical conditions.
Planning for Those Moments That You Would Prefer to Not Think About
A Combined Durable Medical Power of Attorney and Living Will is one part of what is called estate planning (no, you do not need the white column house, horse farm, and Rolls Royce for an estate plan). Estate planning, in legal terms, addresses developing a plan your property, healthcare, family structure, etc. An estate plan may include a will, general power of attorney, medical power of attorney/living will, or a special-purpose power of attorney.
Few relish talking about such difficult issues. However, delaying or not planning can place significant burdens on your loved ones at times when stress, sadness, and loss may be heightened.
A person adopting a Durable Medical Power of Attorney and Living Will should consult with:
- faith leader,
- the designated Health Care Agent,
- an attorney, and
- your medical provider.
Because these documents potentially address end-of-life situations, consulting with your pastor may provide guidance regarding your faith tradition’s handling of such issues. Consulting with the designated Health Care Agent, even informally, can help the agent to understand his or her role. (Your attorney can help facilitate this dialogue.) Consulting with family may be helpful so that they know the documents exist (and where they are located) and understand your general wishes. Consulting with your medical provider can help to understand the medical options, understand treatment, and understand how the medical profession makes determinations. Consulting with an attorney becomes important to assure that the documents are properly drafted and properly executed (all the t’s-crossed and i’s dotted). The attorney can also help assure that the Durable Medical Power of Attorney and Living Will are consistent with the rest of your estate planning documents (the latter is important as inconsistencies can cause problems).
What Happens If You Don’t Have a Medical Power of Attorney or Living Will in Pennsylvania?
If you do not have a Durable Medical Power of Attorney, you may limit or forfeit your ability to express your wishes. You have a legal right to make such determinations ahead of time. But by not acting, you may limit or forfeit that right.
Not having a Durable Medial Power of Attorney, can also lead to unintended or unwanted consequences regarding who gets to decide your medical care. For example, the situation can become complex depending on the family situation. You may be in a long-term relationship with a person who is not your spouse. However, generally, if you do not have a Durable Medical Power of Attorney, default legal rules apply to appoint a temporary Health Care Representative (54 Pa.C.S. § 5461) who possesses powers similar to a Health Care Agent. A spouse (unless divorce pending), adult child, parent, adult sibling, adult grandchild, or another adult with a relationship to you may be appointed but in that specific order. For some people, the default appointment order can lead to unintended consequences (for example, an adult step-child with close connection being excluded or a long-time partner being excluded).
Also, by not having these documents ahead of time, a court may also need to appoint a guardian requiring a court proceeding (this process goes beyond this article).
The simple answer is: if you do not have a Durable Medical Power of Attorney, default statutory rules apply, which might not be what you wanted.
If I am Still Young, Do I Need a Medical Power of Attorney or Living Will in Pennsylvania? Aren’t they for old people?
Pennsylvania, generally, allows persons 18 years of age or older to execute a Durable Medical Power of Attorney and Living Will. 54 Pa.C.S. § 5462. Thus, these documents apply to young people just as they apply to older individuals. Sadly, catastrophic events or terminal conditions can occur to anyone—young or old.
Example Pennsylvania Combined Durable Medical Power of Attorney and Living Will
Pennsylvania law (54 Pa.C.S. § 5471) provides a sample Durable Medical Power of Attorney and Living Will. I include a formatted sample. See sample Pennsylvania Durable Medical Power of Attorney and Living Will. The sample shows some of the options available and helps initiate discussion. I ask clients to review a sample, make notes, and list questions before meeting about drafting the Durable Medical Power of Attorney and Living Will. The final document should be reviewed by your attorney.
(Why do attorneys always caution to have documents reviewed by an attorney? I get this question from time-to-time.
The attorney review becomes important because the attorney can guide you through drafting the final document, assure that the document was executed (“signed”) correctly, make sure that you follow the formalities required for the document to be truly effective, answer questions about special situations (children with disabilities, blended families, family conflicts, etc.), guide you regarding using the document, evaluate business ramifications, help facilitate delicate discussion with family, and review other documents for consistency.
Certainly, any reasonably competent person can fill-out-the-form. That is not the issue. The issues may be things that you did not think about or did not realize were even material. These are important documents; you want them done right.)
Concluding Thoughts on Pennsylvania Durable Medical Power of Attorney and Living Wills
The Durable Medical Power of Attorney and Living Will serve as important documents in your estate plan. They “spring forth” to help and “speak for you” when you need help most. They can also ease part of the burden for family during the stressful time during a medical emergency.
Drafting these documents by an attorney is usually fairly straight-forward. Your thoughts, prayers, discussions-with-family, and consultation with professionals should go into the process.
Sample Pennsylvania Living Will and Healthcare Power of Attorney
The above relies, in part, on a community presentation that I delivered in 2012. This posting was authored in February 2018.
This posting provides general legal information and does not replace legal advice. You should consult an attorney before signing a legal document including when considering a Durable Medical Power of Attorney and Living Will.
The Allegheny Bar Association also provides sample documents for Pennsylvanians. Any documents should also be reviewed by an attorney.