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HEALTH CARE REPRESENTATIVES
UNDER ACT 169
IN
GENERAL. The role of health care representative is entirely new in
Pennsylvania. It is intended to fill in the gap that existed under prior
law by designating certain family members to make health care decisions for
incompetent patients who do not have a heath care agent who is able and willing
to make decisions for them. In effect, the health care representative in
most cases will be chosen by the statute, not by the patient himself.
Conditions for Health Care Representative to Act.
Before anyone can validly act as a health care representative for an individual,
the following four conditions must be met:
 | The attending physician must first determine that the
individual is incompetent to make their own health care decisions. |
| Second, the individual: |
Does not have a health care power of attorney; or
Has a health care power of attorney, but the health care agent
named therein:
Is not reasonably available or
Has indicated an unwillingness to act, and no alternate health care agent is reasonably
available.
"Reasonably available" means "readily able to be contacted without undue effort and
willing and able to act in a timely manner considering the urgency
of the individual's health care needs."
| Third, a guardian of the person to make health care
decisions has not been appointed for the individual. |
| Finally, the individual must be at least 18 years of age, have
graduated from high school, have married or be an emancipated minor. |
Who May Act as Health Care Representative.
| Oral or Written Designation by Individual.
The
individual himself, if of sound mind may by a signed writing or by personally informing the
attending physician or health care provider designate one or more individuals
to act as health care representative.
 | A written designation will likely be an unusual
situation, since in almost all cases the individual who takes the time to
sign such a writing will designate the person as his or her heath care
agent, not representative. |
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| Statutory Designation. In the absence of the
individual’s own designation or if no designee is reasonably available, any
member of the following classes, in descending order of priority, and who is
reasonably available may act as health care
representative: |
Spouse (unless an action for divorce is pending) and
the adult children of the principal who are not the children of the spouse
Adult child
Parent
Adult brother or sister
Adult grandchild
Adult who has knowledge of the principal's
preferences and values, including, but not limited to, religious and moral
beliefs, to assess how the principal would make health care decisions.
In the event multiple members of the same class
assume the authority to act, see below for how disputes between or
among them are to be resolved.
An individual may by a signed writing, including a
health care power of attorney, provide for a different order of priority
An individual with a higher priority who is willing
to act as a health care representative may assume the authority to act
notwithstanding the fact that another individual has previously assumed that
authority.
Disqualification to Act as Health Care
Representative.
| An individual of sound mind may disqualify one or
more individuals from acting as health care representative in the same manner as
specified for designating such representative as described above.
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| An individual in a health care power of attorney may
also disqualify one or more individuals from acting as health care
representative. |
| Upon the petition of any member of the classes set
forth above, the court may disqualify for cause shown an individual otherwise
eligible to serve as a health care representative. |
| Unless related by blood, marriage or adoption, a
health care representative may not be the principal's attending physician or
other health care provider, nor an owner, operator or employee of a health care
provider in which the principal receives care. |
Duty to Promptly Communicate Assumption of
Authority to All Family Members.
| A person who determines that the individual in
question meets the four requirements described above and that the person is
qualified by the statute to act as such individual's health care
representative can unilaterally commence to exercise the powers of
representative, with no need to first obtain the individual's or some third
party's prior permission or consent. However, the health care
representative must communicate the assumption of such authority to all
members of the individual's family specified above who can be readily
contacted. |
For example, in the case of an incompetent patient
who is widowed but has three adult children (and assuming the other conditions
of Act 169 apply), any one of the children could unilaterally assume the
authority to act as health care representative, without needing to obtain the
prior consent or approval of either the patient or the other children. The
child’s only duty would be to promptly communicate such assumption of authority
not only to the other two children but also to all other family members who come
within one of the other categories described above, except for those
children and family members who cannot be "readily contacted."
Written Declaration of Health Care Representative.
| The attending physician or health care provider may also require a person
claiming the right to act as health care representative for a principal to
provide a written declaration made under penalty of perjury stating facts and
circumstances reasonably sufficient to establish the claimed authority. |
Resolution of Disputes Among Multiple Health Care
Representatives.
| Majority Vote If Odd Number. If more than one
member of a class assumes the authority to act as a health care representative
and the members do not agree on a health care decision, the attending physician
or health care provider may rely on the decision of a majority of the members of
that class who have communicated their views to the attending physician or
health care provider. |
| Resolution if Evenly Divided. If the members
of the class of health care representatives are evenly divided concerning the
health care decision, no decision shall be deemed made until such time as the
parties resolve their disagreement. |
The method of dispute resolution is left to the
members.
The existence of a dispute does not permit an
individual in a lower class to act as a health care representative.
While the class remains evenly divided, health care
treatment can be given in accordance with accepted standards of medical
practice.
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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 :
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(or any link from it) does not constitute a formal opinion. Accordingly, any tax
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based on your particular circumstances from an independent tax advisor.
Send mail to mhagan@haganlaw.net with
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Copyright © 2008 Martin J. Hagan, One Gateway Center - 8 South; Pittsburgh, PA 15222-1435
Last Updated:
05/28/08
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