Winter 2006
Mental Health Care Declarations and Powers of Attorney
Effective in 2005, Pennsylvania statutory law provides for mental health powers of attorney and mental health declarations. The intent of the new statute is to provide a means by which competent adults are able to control their mental health care either directly through instructions written in advance or indirectly through a mental health care agent. Similar to living wills and medical powers of attorney, the form of the declaration and power of attorney are statutorily defined.
The statute provides criminal and civil penalties for anyone who conceals, alters, or destroys a health care power of attorney or declaration without the consent of the declarant, or causes a person to execute a declaration or power of attorney under undue influence, fraud, or duress. The statute requires the attending physician and mental health care provider to comply with the powers of attorney and declarations. If the attending physician or mental health care provider cannot in good conscience comply with the declaration or mental health care decision because the instructions are contrary to accepted clinical practice and medical standards, treatment is unavailable, or if the policies of the mental health care provider preclude compliance, the attending physician or health care provider must immediately notify the declarant if the declarant is competent, the substitute named in the declaration if the declarant is incompetent, the guardian or legal representative of the declarant if a substitute is not named in the declaration, or the mental health care agent. The mental health care provider must make every effort to assist in the transfer of the patient to another physician or mental health care provider who will comply with the decision.
The declaration includes such instructions as the declarant's wishes regarding electroconvulsive therapy and being the subject of laboratory research. It also includes the name of the psychiatric treatment facility to which the declarant prefers to be admitted and/or does not wish to be admitted. It may also include such information as type of intervention preferred, mental and physical health history, dietary requirements, religious preferences, custody of children, family notification, limitations on the release or disclosure of mental health records, and types of medications for psychiatric treatment.
The mental health power of attorney, similar to the durable power of attorney, includes the named mental health care agent and limitations on such agent's authority. The mental health declaration and power of attorney may be combined in one form or may be separate forms. The declaration and power of attorney expire two years after execution unless the declarant is incompetent at that time.
Elder Care Planning - Powers of Attorney
More often than not, aging is difficult. For friends and acquaintances, it is hard to witness an older person's physical or mental decline. For family members, loved ones and primary care givers, the situation can be almost unbearable, causing everyone enormous stress and unhappiness.
Increasingly, durable powers of attorney ("POA") are being used to address some of the issues and decisions that must be faced as the aging process takes its toll. By "durable," we mean the type of POA that survives the maker's "subsequent disability or incapacity."
A carefully drafted POA can greatly reduce the need for crisis-related decision-making by giving a person (called the "Agent") the power to handle the property of the maker. It can also empower the Agent to make necessary health care decisions, including routine matters like choosing a doctor and sensitive matters such as admitting someone to a nursing home or authorizing the withdrawal of life-sustaining treatments.
While a POA is not a panacea, it can serve to prepare all concerned for some of the difficult decisions ahead by identifying those issues and authorizing an Agent to make the necessary decisions. In a worst case scenario, families bereft of direction will be forced to go to court to obtain a legal guardian for an incapacitated person, a process which can be both expensive and traumatic.
A durable POA is not "one size fits all." For those interested, legal counsel should be sought so that the specifics of each situation are reviewed. This is particularly true if the maker wishes to give the Agent the power to make significant health care decisions.
A Will is Necessary to Provide for Your Spouse
You might be surprised to learn that if a resident of Pennsylvania dies without a properly executed will, all of his/her estate does not necessarily pass to the spouse he/she leaves behind. Under Pennsylvania law, when a person dies intestate (without a will), all of his/her estate passes to the surviving spouse only if the deceased spouse does not leave issue (child, grandchild, great grandchild, etc.) or a parent behind. If, however, the deceased spouse is survived by a parent or issue, the surviving spouse is entitled to only the first $30,000.00 of the estate and one half of the remaining estate (if the surviving issue is not also the surviving spouse's issue, the surviving spouse does not receive the first $30,000.00, only one half of the deceased's estate).
After the surviving spouse has received his/her share, the remainder of the deceased's estate passes to his/her issue, or, if he/she has no surviving issue, to his/her parents.
If a resident of Pennsylvania dies without a will and without a surviving spouse, the entire estate passes to the issue. If no issue is left then, in order of priority, the estate passes to his/her parents, issue of his/her parents (the deceased's brothers, sisters, nieces, nephews, etc.), his/her grandparents, issue of his/her grandparents (the deceased's uncles, aunts and cousins), and finally the Commonwealth of Pennsylvania.
In order to avoid these legislatively prescribed distributions, a Pennsylvania resident must simply execute a valid will explaining how he/she wishes the estate to be distributed.
What is a Codicil?
A will is an essential document to have regardless of age or perceived affluence. However, like other aspects of people's lives, as circumstances change over time, so too may the needs, persons or institutions to be served or provided for by the will. A codicil is merely the legal term for an amendment or revision to one's will, which can be done without the need to revise or redraft the entire will. A codicil will alter, amend, add to or subtract from one's existing will. For example: If over time someone would like to add a person or an item of property to a specific bequest in the will, this can be done by the execution of a codicil, which will allow the person to keep the original will in place but with this amendment. Also, if only one provision needs to be altered or amended this may be accomplished by a codicil. It is a faster and less expensive way to accomplish these changes without having to redraft the entire will.
One should review his/her will every year or so to be certain it meets the person's current needs and estate plans. Some circumstances will require the whole will to be redrafted, but for specific or minor changes, the codicil provides the best method of accomplishing these alterations. As with any estate planning matter, one should always consult a tax or financial planning professional and attorney before making such changes.
The Dignity of Choice-End of Life Decision Making
As many watching the Shiavo case unfold in Florida learned, it is clear that leaving the decision of life-sustaining treatment without a writing to guide the family can lead to irreconcilable differences. To avoid conflict, in Pennsylvania, individuals are enabled under the Advance Directives Law to document their preferences regarding medical treatment. Advance directives, of which a living will and health care power of attorney are two types, are only triggered upon a person's incompetence. A living will may include provisions to refuse life-sustaining treatment, as well as define what life-sustaining treatment means to the person, from ventilator to feeding tube. A health care power of attorney authorizes a person of choice, such as a family member, to make medical treatment decisions in accordance with instructions.
Currently, in Pennsylvania, adults have the absolute right to refuse medical treatment provided they are competent. Through a health care power of attorney, the surrogate decision-maker is empowered to refuse medical treatment, even when the refusal would not sustain life. In the absence of an advance directive, family members may terminate care, and if the person's wishes were not clearly understood, the courts may intervene and review the evidence to discern what choices he/she would have made.
This emphasis on autonomy may be waning in light of the Pennsylvania Legislature's recent focus upon life preservation. Legislators recently passed a bill in both houses, which would have amended the Advance Directives Law to create a legal presumption that if an individual does not have an advance directive, the individual must be treated with any and all means necessary to preserve life regardless of a person's rights. Although Governor Rendell vetoed the bill, legislative forces are again collaborating to pass such a law to give providers carte blanche to preserve life when a person's wishes are not fully documented.
Through an advance directive, one can control his/her medical treatment & protect his/her dignity through clear documentation.
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