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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 terms in quotation
marks 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
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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.
| 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.
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| Witnessed by two individuals, each of whom is 18
years of age or older. |
| 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that the living will directs be withheld or withdrawn.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."
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| 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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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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