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SCOPE OF
AUTHORITY OF
HEALTH CARE
AGENTS AND REPRESENTATIVES
UNDER ACT
169
Health Care Agent’s Powers.
 | In General.
A health care
agent generally has the authority to make any health care decision and to
exercise any right and power regarding the principal's care, custody, and health
care treatment that the principal could have made and exercised, subject to any
limitations set forth in the power of attorney itself. The health care agent's
authority may extend beyond the principal's death to make anatomical gifts,
dispose of the remains, and consent to autopsies. |
This broad plenary power given to an
agent is consistent with the principle that an individual does
not lose the right of self-determination in the event of
incapacity, and his or her agent can exercise this right even if
the principal is incompetent.
| Pregnancy-Based Limitation on
Life-Sustaining Treatment Decisions. A decision made by an agent
regarding life-sustaining treatment is subject to special rules when the patient is pregnant, discussed
in a prior section of this Article. |
Authority of Health Care Representative.
| The authority of a health care representative, and
the process for making decisions, are the same as those of a health care
agent, except as discussed below. |
Compliance with Decisions of Health Care Agent and
Health Care Representative.
| An attending physician or health care provider
generally must comply with a health care decision made by a health care agent
or health care representative to the same extent as if the decision had been
made by the principal, subject to any limitation set forth in the health care
power of attorney. |
Exception for Principal Not In End-Stage Medical
Condition or Permanently Unconscious.
| An exception is allowed in
the case of a principal who neither has an end-stage medical condition nor is
permanently unconscious. Health care necessary to preserve life must be provided
to such principal, except if the principal is competent and objects to such
care, or if a health care agent objects on behalf of the principal and is
authorized to do so by the advance directive. |
Based on the statutory language, this right to object
is limited to a health care agent. Thus a health care representative would not
be authorized to make such a decision on behalf of a principal who has neither
an end-stage medical condition nor is permanently unconscious.
Countermand of Health Care Decisions.
| Act 169 creates the potential for conflict between
the broad decision-making authority granted health care agents and health care
representatives, and the power reserved in Act 169 to the principal, in some
cases even if incompetent, to negate such decisions through a countermand. |
| Principal of "Sound Mind". A
principal of "sound mind" may countermand any health care decision made
by the agent or representative at any time and in any manner by personally
informing the attending physician or health care provider. |
| Incompetent Principal.
Act 169 states
that regardless of the principal's mental or physical capacity, a
principal may countermand a health care decision made by the principal's
agent or representative that would withhold or withdraw life-sustaining
treatment at any time and in any manner by personally informing the
attending physician. |
The statute requires the attending physician or
health care provider to make reasonable efforts to promptly inform the agent
or representative of the countermand.
NOTE: It remains to be seen how the countermand
provisions will be interpreted and enforced by physicians and other
health care providers. Since clearly there is no minimum level of
competency needed to countermand a decision to withhold or withdraw
life-sustaining treatment, it is easy to imagine situations of abuse
of the countermand right, such as a third party who is unduly
influencing an incompetent principal trying to use Act 169 to cancel an agent’s or representative’s health care
decision with which the third party disagrees.
Since the statute mandates that the principal must
personally inform the attending physician or health care provider of any
countermand, that required face-to-face meeting will be an opportunity for the
physician or provider to discuss the countermand with the principal. In that
setting, attempted countermands that are clearly against the best interests of
the patient can hopefully be withdrawn.
As a last resort, a countermand that may harm the
principal or be the product of undue influence could serve as grounds for the
agent, representative, or any other party to petition the Orphans’ Court to
adjudicate the principal an incapacitated person and to appoint a guardian of
the person to assume control over healthcare decision-making. A guardian would
not be subject to an Act 169 countermand.
Guardian of the Person.
If a principal who has executed a health care
power of attorney is later adjudicated an incapacitated person and a guardian
of the person is appointed by a court, the health care agent is accountable to
the guardian as well as the principal. The guardian has the power to revoke or
amend the health care agent’s appointment, to the same extent that the
principal would have if he or she were not incapacitated. However, absent
judicial authorization the guardian may not revoke or amend other instructions
in an advance health directive.
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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.
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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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