Living Wills Under Act 169

LIVING WILLS UNDER ACT 169

Purpose of the Living Will.

Under Act 169 the purpose of the living will is to allow adult individuals to exercise their right of self-determination by providing instructions regarding the initiation, continuation, withholding or withdrawal of life-sustaining treatment at a time when they are incompetent and have an end-stage medical condition or are permanently unconscious. (Each of the highlighted terms is specifically defined in Act 169.)

Eligibility. A living will can be executed by an individual of sound mind who is:

	18 years of age or older;
	has graduated from high school;
	has married; or
	is an emancipated minor.

Note: What is "Sound Mind"? The term is not defined in the statute, but apparently is to be interpreted consistent with its common law meaning as someone who has the capacity to enter into legal transactions. "Sound mind" is not identical to the term "competent."

Documentary Requirements. A living will must be a writing that is:

Dated and signed by the principal by his or her

Signature,

Mark, or

By another individual on behalf of and at the direction of the principal if the principal is unable to sign, but specifically directs another individual to sign the living will.

Witnessed by two individuals, each of whom is 18 years of age or older.

Other Documentary Requirements:

A health care provider and its agent may not sign a living will on behalf of and at the direction of a principal, if the health care provider or agent is also providing health care services to the principal.

An individual who signs a living will on behalf of and at the direction of a principal may not witness the living will.

Notarization of the individual’s and/or witnesses’ signatures is not required, but is still desirable in the event that the living will must be used in a different state that has such a requirement.

Drafting Options for Living Will

Define the Scope of Life-Sustaining Treatment.

Act 169 contains numerous definitions of terms that are used in the Living Will Act, as well as in other subchapters. Among the important terms is "life-sustaining treatment," since it is typically "life-sustaining treatment" that the living will directs be withheld or withdrawn. "Life-sustaining treatment" is defined as "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."

Exception for Nutrition and Hydration.

In the case of an individual with an advance health care directive or order, the term "life sustaining treatment" includes nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means only if the advance health care directive or order so specifically provides.

NOTE: As a result of this exception and the solution expressly offered by the statute, the living will should specifically declare whether or not the individual intends for artificial or invasive forms of nutrition and hydration to be treated as any other form of life-sustaining treatment, or if they should be withheld or withdrawn only under special conditions.

Define the Medical Conditions in which Treatment Can be Withheld or Withdrawn.

Act 169 uses "end-stage medical condition" and "permanently unconscious" as the conditions that will trigger the living will.

"End-stage medical condition" is defined as 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.

The statute further states that:

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, and

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

The clear import of this definition is that the term "end-stage medical condition," if used in an advance directive without further description, will in many cases exclude advanced stage dementia or Alzheimer’s disease as a condition that will trigger the living will. It would not be difficult to show that the patient could both benefit from simple palliative care and that some form of medical treatment would not merely prolong the dying-process.

If the principal client wants a diagnosis of advanced-stage dementia or Alzheimer’s disease, or any other severe and incurable medical condition, to trigger his or her living will, he or she should specifically state that intention in the advance directive to avoid the limitations of Act 169.

State any specific treatment choices that should be withdrawn or withheld.

Specify the client’s choices on artificial or invasive forms of providing nutrition and hydration.

Use a form that uses a menu approach that allows the client to select one choice over another, as found in Act 169's sample form, or include only the choice already made.

Incompetency as Pre-Condition for Effectiveness. Based on the individual’s right of self-determination, Act 169 states that the living will only becomes operative when a copy is provided to the attending physician and the attending physician determines the principal to be incompetent, and to have an end-stage medical condition or be permanently unconscious.

Revocation of Living Will

Act 169 recognizes the right of individuals to revoke their living will at any time and in any manner, regardless of their mental or physical condition at the time.

While seemingly illogical, the legislative choice to allow even incompetent individuals to revoke a living will is based on the underlying right of self-determination, and a desire to avoid questions of competency as a condition of recognizing the revocation.

A revocation is effective upon communication to the attending physician or other health care provider by the individual or a witness to the revocation.

Practical Effect of Revocation. Under the new provisions of Act 169 that grant decision-making authority to a health care representative, the practical effect of an incompetent individual revoking a living will, in the absence of any contrary direction, is that a family member will then be authorized to step forward and make decisions on behalf of the individual as health care representative.

Compliance with Living Will. Act 169 provides that when a living will becomes operative, the attending physician and other health care providers shall act in accordance with its provisions or comply with the transfer provisions of the Act.

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Last Updated: 03/05/10