OVERVIEW OF CHAPTER 54
Chapter 54 of the Probate Estate and Fiduciaries Code, which codifies Act 169 of 2006, makes available for Pennsylvanians all three approaches to end-of-life decision making that were sanctioned by the United States Supreme Court in Cruzan. (See the Section titled "Developments in the Law" above.) The Act includes the following specific subchapters:
 | Living Will Act (referred to herein as "the LWA") that authorizes advance written instructions regarding life-sustaining treatment. The LWA changes some of the terms that were used in the prior living will statute. |
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Health Care Agents and
Representatives Act (referred to herein as "the HCARA") that provides for: Health Care Agents to be appointed by the individual and empowered with significantly more authority than what was previously allowed, specifically to exercise substituted judgment and apply the best interest standards on behalf of the principal, which could include directing that life-sustaining treatment be withheld or withdrawn. |
Health Care Representatives to be appointed under the HCARA when there is no agent named by the principal who is able and willing to serve, who may also exercise substituted judgment and use the best interest standards on behalf of the individual.
| Effect on Prior Law. Chapter 54 does not supplant or preempt prior statutory and case law dealing with health-care decision making. In fact, it explicitly states that nothing in it is meant to affect or supersede the holdings of the Pennsylvania Supreme Court in Fiori, which is cited directly in the statute. |
| As a result of this non-exclusive approach, the underlying principles of self-determination, substituted judgment, and best interest standard remain important concepts in the drafting of advance directives and in any discussion of their terms. |
| Effect on Prior Advance Directives. Chapter 54 does not limit the validity of a living will or health care power of attorney executed prior to the effective date of the revisions, which was January 29, 2007. |
| Effect on Advance Directives Executed Outside Pennsylvania. A living will or health care power of attorney that was executed in another state or jurisdiction which is in conformity with the laws of that state or jurisdiction will be considered valid in Pennsylvania, except to the extent that such living will would direct procedures that are inconsistent with Pennsylvania law, or such health care power of attorney would allow a health care agent to make a health care decision that would be inconsistent with Pennsylvania law. |
| Pregnancy. Chapter 54 places special limitations on the right of self-determination if the individual is pregnant. Life-sustaining treatment, nutrition, and hydration must be provided to a pregnant woman who is incompetent and has an end-stage medical condition or who is permanently unconscious unless, to a reasonable degree of medical certainty as certified on the pregnant woman's medical record by the pregnant woman's attending physician and an obstetrician who has examined the pregnant woman, life-sustaining treatment, nutrition and hydration: |
| Will not maintain the pregnant woman in such a way as to permit the continuing development and live birth of the unborn child; |
| Will be physically harmful to the pregnant woman; or |
| Will cause pain to the pregnant woman that cannot be alleviated by medication. |
This rule applies notwithstanding the existence of a living will, a health care decision by a health care representative or health care agent or any other direction to the contrary.
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Pregnancy test – A physician is not required to perform a pregnancy test unless the physician has reason to believe that the woman may be pregnant. |
| Protection of Health Care Providers from Liability. Chapter 54 contains broad protections for health care providers in complying with its terms, in an apparent effort to encourage their compliance with both the individual patient’s own advance directives and the directions given by health care agents and representatives. For example: |
Health care providers can assume that an advance directive presented to them was valid when made and has not been amended or revoked, unless they have reason to believe otherwise.
Health care providers are not liable when they initiate, continue, withhold, or withdraw medical treatment from an incompetent patient if they believe in good faith that they are acting in accordance with the terms of the patient's living will or the directions of a duly authorized health care agent or representative.
