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HEALTH CARE POWER OF ATTORNEY
UNDER ACT 169
Purpose of Health Care Power of Attorney. The
purpose of a health care power of attorney under Act 169 is to both:
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Appoint the health care agent, and |
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Declare that the principal authorizes the health care
agent to make health care decisions on his or her behalf. |
Incompetency is Not Necessarily a Pre-Condition
for Effectiveness
Unlike a living will, which by definition cannot be
effective until the individual is incompetent, the principal can elect to make
the health care power of attorney effective immediately upon its execution.
An intent that the
health care power be effective prior to incompetency must be expressly stated in
the document. Unless otherwise specified in the document a health care
power of attorney will only become operative when a copy is provided to the
attending physician and the attending physician determines that the principal is
incompetent.
While there are good reasons not to make the document
a "springing" power that conditions the agent’s authority upon a finding of
incompetency, in practice a physician or other health care provider will be
unlikely to obey the directions of an agent at a time when the principal is
competent to make their own health care treatment decisions.
Appointment of Health Care Agent. Naming the
agent or agents that the principal wants to act on their behalf, and providing
such agents with all the authority they will need to perform their duty, is an
important goal of any health care power of attorney. Thus, the provisions
dealing with agents should receive the drafter’s special care. As to the
eligibility to serve as an agent:
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Only individuals can be appointed as a health
care agent. |
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Disqualified Persons. Unless related to the
principal by blood, marriage or adoption, a health care agent may not be:
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the principal's attending physician or
other health care provider, or |
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an owner, operator or employee of a health care
provider in which the principal is receiving care. |
Design Issues Regarding Agents.
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Multiple Agents. Does the
principal prefer more than one person to act as health care agent?
If so, the consequences flowing from that choice should be spelled
out. |
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If two agents are named –
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Is their unanimous consent required? |
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Can either one can act independently of the other? |
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If three or more agents are named –
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Does majority vote rule? |
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Is their unanimous consent required? |
Be aware of the default result. Under Act 169
multiple health care agents must act jointly unless the health care power
of attorney expressly provides otherwise.
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Successor or Alternate Agents. The options are
to: |
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Name one or more successors in the document, to serve
consecutively or concurrently. |
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Delegate the appointment of successors to the
then-serving agent. |
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Specify When an Existing Agent’s Authority Will
Cease. The transfer of authority from an existing agent to a successor can
be problematic, especially if the existing agent is of marginal capacity but is
unwilling to give up authority. Act 169 does not address the issue of how
an existing agent’s authority will end and the successor’s authority commence.
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Optional Provisions for the Health Care Power of
Attorney. |
It is essential
that a HIPAA authorization be included in the document so that the agent can
receive all health care information necessary to carry out their duties.
Nominate a guardian of the person of the
principal, if such appointment becomes necessary.
Request that the health care agent or health care
representative consult with the principal's relatives, clergyman, or physician
if the health care agent or health care representative is uncertain as to the
principal's wishes or best interests.
Authorize the agent to consent to an autopsy and to
make anatomical gifts.
Disqualify an individual from acting as a health care
representative (discussed in the following section), prohibit the appointment of a health care
representative, or provide for an order of priority of appointment of a health
care representative that is different than that set forth in Act 169.
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DISCLAIMER
Martin J. Hagan is licensed to practice law in the
Commonwealth of Pennsylvania. This website is intended solely for
informational use and is not intended to solicit clients. Likewise, any
information contained in or obtained from this web site is for informational
purposes only and is not intended to be used as legal advice.
IRS CIRCULAR 230 DISCLAIMER :
Pursuant to Treasury guidelines, any tax advice contained in this website
(or any link from it) does not constitute a formal opinion. Accordingly, any tax
advice contained in this website (or any link from it) is not intended or
written to be used, and cannot be used by any taxpayer, for the purpose of
avoiding penalties that may be asserted by the Internal Revenue Service. You should seek advice
based on your particular circumstances from an independent tax advisor.
Send mail to mhagan@haganlaw.net with
questions or comments about this web site.
Copyright © 2010 Martin J. Hagan, One Gateway Center - 8 South; Pittsburgh, PA 15222-1435
Last Updated:
03/05/10
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