Bob Wolf: "Be An Agent" (Part I)

In the February, 2007, issue of the Fiduciary Review -- a long-established & very trusted monthly subscription publication in Pennsylvania -- a four-page article appeared, entitled "Be A Surrogate".

The article questioned the usefulness of Pennsylvania's new Act 169 of 2006 (regarding "Advance Health Care Directives") in view of perceived legal weaknesses & practical difficulties arising in its implementation. Instead, the article suggested that it might be better to act as a surrogate under authorization of prior statutory or common law, rather than function as a health care agent or a health care representative under the statutory provisions of Act 169.

Any concerns expressed by the Fiduciary Review are not lightly read. This publication, based in Norristown (Montgomery County), PA, is issued under the expert editorial supervision of experienced attorneys at the law firm Smith, Aker, Grossman & Hollinger. It has been in publication since 1933 to date, as evidenced by a complete compilation held at the Duquesne University Center for Legal Information (a/k/a, the Allegheny County Law Library), under Reference Key: KFP137. F451.

Since Act 169 represents a long-developed, deliberately-crafted, and crucially-needed statute codifying the principles & procedures applicable to personal health care decision-making in Pennsylvania, the article's suggestion disturbed lawyers.

Many of those disturbed lawyers appeared at the March, 2007 presentations by the Pennsylvania Bar Institute of the "2007 Power of Attorney & Health Care Directives" live seminar, held in Philadelphia (on 03/05/07) & Harrisburg (on 03/13/07). We also expect them in Pittsburgh on 03/29/07. See: Act 169 at PBI's POA & HCD Course (PA EE&F Law Blog, 02/28/07). They asked questions.

A thoughtful, practical response was requested.

Robert B. Wolf, Esq., of Pittsburgh, PA, has written such a response.

Bob is well-qualified to reflect on Act 169. He has been involved in the legal documentation surrounding end-of-life matters since 1994 through the Allegheny County Bar Association -- a leader among bar associations in the Commonwealth -- in concert with the Allegheny County Medical Society. He continued this inter-disciplinary work in the recent update of the websites of those organizations regarding Act 169, as now explained here. Bob will be speaking at the Pittsburgh presentation of the PBI course on February 29, 2007.

Bob's long attention & personal passion regarding surrogate health care decision-making and end-of-life legal issues qualified him to participate as one of the attorneys giving input to the Governor's Office and the Joint State Government Commission's staff in the transformation of former Senate Bill 492 (Session of 2002), into Senate Bill 628 (Session of 2004), which then (after amendment into Printer's No. 2117) became Act 169 of 2006, as signed by the Governor. Act 169 has been the subject of many prior postings on this blog.

Bob has given me permission to post his responsive article; and I do so in two parts (on two days). In doing so, I respect Bob's copyright of his article, which otherwise can be reprinted or reproduced further only with his express permission. He may be reached by email sent to: RWolf50@aol.com.

"Be An Agent"

(Part I)

(Copyright 2007 by Robert B. Wolf, Esq.)

This is a response to an article in the February, 2007 issue of the Fiduciary Review. Among other things, the article suggests that the practitioner should consider continuing to utilize the old statutory form of living will contained in the Advance Directive for Healthcare Act, rather than using the new sample statutory form, or another form which is allowed under the new Act. This suggestion, and several other points related in that article are not well-founded. The Act, like all statutes, has its issues, but it is far more helpful than problematic.

What Does Act 169 Do?

Act 169 substantially increases the ability of patients and their families to plan ahead and keep control of their health care decision-making even if they become incapable of making those decisions themselves.

Living Wills

The provisions concerning living wills are modestly expanded primarily through the change of term and definition from "terminal condition" in the Advance Directive for Healthcare Act ("ADHCA") to "end-stage medical condition" used in Act 169. This eliminates any inference in the prior law that terminal condition applied only to people with a very short and definable life expectancy, such as the six month requirement required for Medicare Hospice Care coverage.

Health Care Powers of Attorney

Act 169 for the first time provides a full statutory framework for a health care power of attorney, and Section 5456(a) explicitly allows for the principal to give the agent as much power to make medical decisions as the principal/patient would have if he or she were making those decisions.

This is a great step forward in the law of Pennsylvania, since the ADHCA, while it allowed for a "surrogate," was completely silent on the powers of the surrogate.

It is clear, however, that a surrogate under the prior law could not act at all unless the declaration under that law was triggered by the declarant's incompetency and certification as suffering from a terminal condition or a state of permanent unconsciousness. Section 5603(h) of the general power of attorney statute provided very basic powers for an agent under a power of attorney to authorize medical and surgical decisions, to authorize admission into a health care facility and to enter into agreements for the principal's care, but those cryptic sections say nothing of the power to decline or withdraw unwanted care. Now those powers and the procedures under which they operate are explicitly provided for by the Act.

If Act 169 did not do anything else, it would have done a lot.

Health Care Representatives

But Act 169 did something else that is perhaps even more important, by providing for the appointment of a health care representative for those who have no advance directive, which unfortunately even today includes the majority of patients who need someone to speak for them. And Section 5461(d) provides that this health care representative can be appointed by a writing, or even by the patient simply personally informing the attending physician of the patient's choice of a health care representative.

If a health care representative is not appointed by the patient, the Act provides a pecking order based primarily upon marriage and blood relation, similar to the laws of intestacy. The one narrow but important difference is that a health care representative may not decline health care necessary to preserve life unless the patient is in an end-stage medical condition or is permanently unconscious.

The health care representative clearly has as much or more authority as a surrogate appointed by a declaration under the prior law, though no one knows for sure, since the ADHCA failed to state the surrogate's powers. However, since the declaration under the prior law did not go into effect unless and until the patient was certified to be both incompetent and suffering from a terminal condition or permanently unconsciousness, it is difficult to see how a surrogate appointed under the statute could be any broader in application than the effectiveness of the empowering document.

Be a Surrogate?

But if you were appointed a surrogate under the ADHCA, were you safe exercising those undefined surrogate powers? No one knows that for sure either, because the prior law did not grant protection to the surrogate for his or her good faith actions as surrogate.

Act 169, on the other hand, in Section 5431 provides protection for health care agents and health care representatives, as well as medical providers for virtually any actions they might take in connection with an advance directive or in following the wishes of a patient as expressed through the agent or representative. The old statute and the old form provide no such protection.

Use the old form?

Act 169 takes an unusually broad view of the drafting of advance directive forms, clearly providing that the sample form is just that; a sample, and any form, including the old statutory form under the ADHCA, is still valid.

It is not possible to retrieve all of the copies of the old form or the organizations and people who have relied upon the old form, so Act 169 makes it clear that that form, deficient as it was, would still be respected regardless of when it is executed.

But the breadth of that freedom to use any form, even the old statutory form, should not be confused with any notion that it is a good idea. The old statutory form suffered from critical shortcomings, the most important of which was the fact that no surrogate could be appointed unless the patient were in a terminal condition or were permanently unconscious.

Since the overwhelming majority of times that a patient needs someone to speak for them is a situation where they are not terminally ill nor permanently unconscious, the practitioner would be making a great mistake to rely on the old form. Further, the old form is a checklist form, which is generally thought to be undesirable by those who have studied these matters most thoroughly, and provides no flexibility to deal with the treatments listed on the checklist. * * *

The remainder & conclusion of "Be An Agent" will appear in a "Part II" posting on March 14, 2007. [Update: That posting is: Bob Wolf: "Be An Agent" (Part II).]