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

This is a continuation of the article by Robert B. Wolf, Esq., as described & begun in my prior posting, Bob Wolf: "Be An Agent" (Part I) (03/13/07), regarding reactions to Pennsylvania's Act 169 of 2006 on Advance Health Care Directives.

Please read that posting first for background & limitations, and then return here to read Part II of his article, copied below, with permission.

"Be An Agent"
(Part II)

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

Revocation and Countermand—Not New News

The Fiduciary Review points to the apparent logical inconsistency of the patient being able to revoke a living will at any time and in any manner, and that the patient may countermand the decision of an agent the same way “regardless of mental or physical condition.”

What the author does not note is that the ADHCA also allowed this revocation under these same circumstances, and while it seems illogical for someone who is incompetent (or arguably incompetent) to be able to revoke their living will or health care agent’s decision, both the provisions in the old law and the new law are grounded on the same premise — we do not want to have to determine competency prior to being able to carry out life preserving medical treatments if the patient says he or she no longer agrees with the instructions of the living will, or to have their agent’s decision honored in such a way as to cause their death.

A recent case related to this author underscores the reason for the rule. A patient in an end-stage medical condition had indicated in her advance directive and through the decision of her agent her desire not to be placed or maintained on a ventilator.

Upon discussion with the patient herself, with relatively advanced Altzheimer’s disease, it appeared that she did not want to decline the use of a ventilator, once it was explained to her that she would quickly die without it. While the discussion was repeated several times over several days, the result was the same.

Because the countermand was clear and was repeated, and even though it was not clear that she was competent to make that decision, the ventilator was used when it was needed a few days later. This was an agonizing situation for physician and agent, who knew that she had said that she did not want this when she was well and of sound mind. But did the patient have a different perspective when the situation was near at hand, or did she just not understand?

We will likely never know, but one may surmise that the application of this rule may be more logically inconsistent than a bad rule in practice. Note that Act 169 does not allow the countermand by a patient “regardless of the principal’s mental or physical capacity” unless the countermand preserves life.

Pennsylvania has a very strong policy in favor of the preservation of human life, and that strong presumption is the reason for the rule. In the context of a declaration, it has been in effect since the ADHCA became law in 1992, and to the knowledge of this writer, has not resulted in any egregious cases.

Much Adieu About an Emancipated Minor

The Fiduciary Review expresses concern at the addition of an emancipated minor to the list of statutory exceptions to the requirement that a Pennsylvanian be an adult in order to be able to execute a living will or a health care power of attorney, in addition to allowing one who is married or who has graduated from high school.

While one could argue about any of these classifications as to whether they are reasonably related to the execution of a living will or health care power of attorney, someone who is an emancipated minor would not have their parent available to make the decision for them, so the inclusion of this very small additional class of people who can execute an advance health care directive in addition to an adult of “sound mind” seems actually rather sensible, and in any event, inconsequential.

HIPAA Hoppin' Language

The Fiduciary Review article provided a somewhat more expansive suggested provision intending it to be a valid HIPAA authorization under these confusing Regulations.

Unfortunately, the language suggested in that article is defective in several respects. The language appears to reflect the thought that the patient can simply appoint a “personal representative” for HIPAA purposes as we might appoint one under a will; but this is not the case.

A “personal representative” under HIPAA is the person who has authority to act on behalf of an adult or an emancipated minor in making decisions related to health care. Merely appointing the agent as personal representative would not make them a personal representative under the law, unless the agent had the power to make health care decisions for the principal. 42 CFR §164.502(g)(2).

In addition, under the mandatory provisions required of a HIPAA authorization, the right to revoke the authorization must be stated, and the risk of redisclosure must be stated explicitly also, as well as the effective beginning and ending dates for the authorization. For these rules, see 42 CFR §154.508(c)(1)(v) and (c)(2).

The language in the Fiduciary Review article would not be effective because of these highly technical requirements.

Process of Health Care Decision-Making

The Fiduciary Review article describes the process for health care decision-making by agents or representatives as “onerous.”

Indeed, the process is described much more specifically than in prior drafts of this legislation, and under existing law there was no guidance at all as to the powers or the process of a surrogate or agent. This description of this process was crafted at the urging of those who wanted the protections of a more clearly defined process if powers to act for someone else, particularly in the context of a health care representative, were to be expanded, but with the advice and input of the medical community.

But read the provisions of Section 5456(c) from the point of view of the patient. Then ask yourself the question-would you want any less thought and process applied to you if you were the patient?

Be an Agent

So if you or your clients are considering acting as an agent under a health care power of attorney or as a health care representative, feel free to step up to the plate. It is a rotten job, with low or no pay, and difficult decisions; sometimes in the middle of the night, sometimes including decisions that are literally life and death, always with the potential for someone second guessing.

But Act 169 made it safer and the process more clearly defined than it ever was before. The position has never been more important, or more necessary.

There is nothing more important to insure the delivery of appropriate health care for a patient, particularly towards the end of life, than a well-informed, active and involved health care agent.

We can only hope the right person will be there for each of us when the time comes!

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