Captain America: RIP?

I have resisted posting anything about the disputes surrounding the recent deaths of singer & entertainer James Brown, or model & celebrity Anna Nicole Smith, on this blog. Yet I feel compelled to note the recent reported death of Steve Rogers, 89.

An obituary for Steve Rogers appeared in the Times-Tribune (Scranton, PA) on March 7, 2007, followed by other newspapers, such as the New York Times on March 8, 2007.

In March, 1941, in a world at war and with America teetering on its brink, Steve Rogers volunteered to aid humanity. He was a frail & scrawny arts student, ineligible for the army because of his poor health, who underwent months of steroid treatments, surgery, & the Super-Soldier formula to become . . . "Captain America".

Bucky is a childhood friend who follows him on his missions as a photographer rather than as a costumed sidekick. Rogers' last mission as Captain America sends him to a Nazi stronghold on the coast of Iceland to stop a prototype hydrogen bomb created using alien technology. He causes the rocket carrying the bomb to explode and falls into the freezing Arctic Ocean. Rogers falls into a state of suspended animation until Tony Stark's deep sea exploration team pulls him out of the water 57 years later. Bucky survives the war, and, thinking that Rogers had been killed in action, marries Rogers' fiancée Gail.

I first heard reports about the death of Steve Rogers on Thursday morning, March 8, 2007, in a "Morning Edition" radio segment broadcast by National Public Radio, entitled "Marvel Comics Kills Off Captain America".

A red, white and blue superhero, born to fight the Nazis, has been rubbed out.

Marvel Comics has killed off Captain America.

In the latest issue of the long-running series, the character is shot by a sniper on the steps of the federal courthouse in New York City.

"On the last page of the issue he's on a gurney, looking out with lifeless eyes," said Ed Brubaker, who writes the series. "He's been killed."

In recent years, NPR has displayed great sensitivity to the cultural aspects of Captain America and to his diverse comic book compatriots, as created by writer Stan "The Man" Lee. See:

• Stan Lee on Realism in the World of Comic Heroes (Dec. 27, 2006)
• Marvel Comics Moves into Film (Sep. 9, 2005)
• Captain America and Tuskegee (Nov. 19, 2002)
• Comic Book Writer Stan Lee (June 4, 2002)

Television reporter & commentator Stephen Colbert may have experienced a premonition of sorts when he noticed the glaring omission of Captain America from the list of superheros celebrated by the United States Post Office's superhero stamps, released on July 20, 2006. You should view his video commentary, Colbert Report: "Superhero Stamps".

So, it came as no surprise to me that Mr. Colbert was among the first to comment upon the reported death of Captain America. See: Video commentary on March 8, 2007, Colbert Report: "Comic Justice" ("Captain America's death teaches us that fighting to protect civil liberties is dangerous.").

But, is there more to this story? A week later on his television show, Colbert proudly announced his receipt of Captain America's "most valued possession" -- his "indestructible shield". He read a letter that delivered this item to him, as supposedly specifically bequeathed to him in an alleged Last Will & Testament read the prior Friday by executives of Marvel Comics, who are administering the superhero's estate. See: Video commentary, Colbert Report: "Captain America's Shield". But, there was no mention of the super-situs of the estate's administration, or even the issuance of a comic death certificate for the fallen warrior.

Colbert then displayed the superhero's shield publicly on his television show, tapping it to prove its indestructibility. Although Colbert promised to "take this responsibility very seriously", he then appeared to mock his charge by saying to his audience, "Ladies -- anybody want to touch it?"

Other more independent commentators, such as those working for NPR, have questioned these reports of permanent death for the "star-spangled avenger":

Morning Edition commentator John Ridley says it's not that easy to kill an icon.

"I believe that he will be back, and as he rises I think we can all believe no matter where we are — from left to right or middle that America will continue to rise," Ridley said.

"We have to believe that as a nation, that we will continue to go on and I think Captain America's legacy will be his rebirth."

Last Friday, I sent an email message to Professor Gerry Beyer, who authors the well-read and highly-esteemed Wills, Trusts & Estates Law Prof[essors] Blog. I expressed my concerns regarding these events -- and the lingering legal questions.

Gerry confirmed my intuitive sense of the importance of these developments when he posted the following entry on his academic-level blog:

Captain America Dies -- What Does His Will Say?

The superhero world continues to reel from the untimely death of Captain America (Steve Rogers) at the hands of Sharon Carter who fired a pistol into Captain America's stomach after she was hypnotized by Dr. Faustus. See Events Leading Up to the Death of Captain America.

The terms of Steve Rogers' will are starting to come to light. Here is what we know so far:

• Steve's will leaves his shield to Stephen Colbert. Mr. Colbert has accepted the shield and has stated, "“Cap? I hope I make you proud.” See Stephen Colbert on the Death of Captain America, March 15, 2007.
• S.H.I.E.L.D. (Supreme Headquarters International Espionage Law-enforcement Division) is conducting an investigation regarding the authenticity and/or validity of the will.
• There is some speculation that Steve is not actually dead.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for recommending that I report on "these weighty matters of great significance to all of us."

Just as in the world of popular television media, developments in the world of comic superheros can occur quickly and without logic. In its article, dated March 8, 2007, entitled "Oh, no! Captain America dead? -- Superhero's demise catches comic book dealers by surprise", published by Inside Bar Area, in San Francisco, California, an insider was quoted:

Although Captain America is presumed dead, the comics will continue as the aftermath of the story plays out, said Lee Lewis, employee at The Comic Shop in San Leandro, which sold out its 35 copies in hours.

"Right now it's a pretty big deal," Lewis said. "But I don't think it's going to last."

So, what does this mean? Can the pulverizing patriot really be dead, shot down on the courthouse steps after 66 years of battling villains from Adolf Hitler to the Red Skull?

Livermore resident Tim Ferreira, a comic book enthusiast, believes that while Captain America's alter ego Steve Rogers might be dead, "Captain America" in some form or another will likely be back. * * *

"When you live in a world of make-believe, a lot of things are possible," he said.

In the meanwhile, we can derive reassurance from the fact that G.I. Joe is still being sold in stores.

* * *

PMPC's "Faces of PA Medicaid Program"

On March 14, 2007, the Pennsylvania Medicaid Policy Center (PMPC) issued a 24-page report entitled "Faces of the Pennsylvania Medicaid Program". The Report is described as "an easy-to-understand and comprehensive look at the structure and reach of the Medicaid program in the Commonwealth of Pennsylvania." The Report is available here (PDF format).

The Report was announced in a Press Release, dated March 14, 2007, which I initially found online here, and which is also posted officially here.

According to its website, PMPC is an independent, non-partisan source of information and analysis about Pennsylvania Medical Assistance.

PMPC's mission is to increase the general understanding of the Medicaid program among the administrative and legislative branches of the government, as well as community groups, health care providers and other stakeholders of the Medicaid program.

The PMPC seeks to show the critical role that Medicaid plays in the Pennsylvania health care system and economy, while incorporating a strategic long term vision.

It addresses its mission by these activities:

• Develops cutting-edge Medicaid policy reports, fact sheets, newsletters and forums.
• Presents data related to Pennsylvania Medicaid, including at the county level.
• Provides Medicaid resources, such as news articles, links, legislative history, charts and graphs.

PMPC offers just such information & data on its website through links such as these:

Publications

• Reports
• Fact Sheets

Pennsylvania Data

• State Data
• County Data
• Citations
• Comparison Feature

Resources

• Relevant Links
• Legislative History
• County Assistance Offices

FAQs

• Questions and Answers

It is through such resources that PMPC hopes to achieve its public objective, according to Dr. Judith R. Lave, Ph.D., who serves as PMPC's Director and also as the Chair of the Department of Health Policy & Management, Graduate School of Public Health, at the University of Pittsburgh: "Our hope is that anyone with a question about the Pennsylvania Medicaid program will visit our Web site whenever they need more in-depth information about the program or are considering policies that affect it."

The subject of the report is the administration of the federal Medicaid health insurance program in the Commonwealth of Pennsylvania. The Press Release notes that this Program serves the nation’s most vulnerable citizens -- such as children, pregnant women, individuals with disabilities, and seniors -- and also pays for medical & long-term care for eligible low-income American citizens & legal immigrants.

In 2006, there were 1,833,769 Medicaid recipients in Pennsylvania in the average month. The total cost of the program last year was $16.6 billion.

Since Medicaid is partially funded and administered by each state, the structure and reach of the program differs widely. In Pennsylvania, Medicaid-covered health care is available through about 68,000 providers, including hospitals, long-term care facilities, physicians and dentists.

The Press Release described the Report, as follows:

Faces of the Pennsylvania Medicaid Program provides key national and state data on Medicaid compiled from multiple sources, including the Pennsylvania Department of Public Welfare. It also includes a county-by-county look at the number and type of people covered as well as quotes from some of those people describing their experiences with Medicaid. * * *

Faces is the first of many publications that will be published by the PMPC, which was recently established at GSPH with support from private nonprofits and foundations as an independent source of information and analysis about Pennsylvania Medical Assistance. The PMPC, thus, will play an important role in informing policy discussions about the role of Medicaid in providing health care in Pennsylvania.

The Report notes that future publications will focus on issues involving Medicaid in Pennsylvania, such as:

• the importance of Medicaid for certain categories of providers in the Commonwealth;
• the distribution of births funded by Medical Assistance across the counties;
  
• initiatives by other states to modify the behaviors of Medicaid recipients in order to promote healthy behaviors;
  
• approaches for reallocating resources in the long-term care sector towards home and community-based services and away from nursing homes; and
  
• the fiscal implications of Medical Assistance for the state budget.

This first Report issued by PMPC is a valuable resource for anyone benefiting from, advising upon, relying on, or responsible for, the Medicaid Program in Pennsylvania.

Lecture on End-of-Life Care for Minorities

An article entitled "Pain relief expert to speak on inequalities in late-life care", by Gary Rotstein, published March 14, 2007, in the Pittsburgh Post-Gazette, noted an upcoming lecture to be delivered by nationally-recognized medical expert Dr. Richard Payne, who now serves as the Director of Duke University's "Institute on Care at the End of Life".

The lecture will focus on disparities in late-life treatment of racial and ethnic minorities compared to other groups.

It will be held at the Hillman Cancer Center, (affiliated with the University of Pittsburgh Cancer Institute, of the University of Pittsburgh Medical Center), beginning at 5 p.m. on Monday, March 19, 2007.

Dr. Richard Payne is recognized as an African-American "History Maker". His biography indicates that he is one of the foremost experts on pain management and palliative care in the country.

He describes palliative care as total care of patients with cancer.

He has worked tirelessly to educate the medical community about the issues and breakthroughs in pain management, co-chairing the expert panel of the Agency for Health Care Policy that established clinical guidelines for pain management in cancer patients.

Payne was also a member of the Institute of Medicine Committee that evaluated end-of-life care in the United States.

He founded the Initiative to Improve Palliative Care for African-Americans, which promotes research, education and policies to improve care for African American patients facing serious illness. He also has been involved with the Open Society Institute and its Project on Death in America.

He also led the Memorial Sloan-Kettering's Pain and Palliative Care Service, a multidisciplinary program dedicated to providing the most advanced methods of cancer pain assessment and management.

Such palliative care treatment has the following characteristics:

• Affirms life and regards death as a normal process.
• Neither hastens nor postpones death.
• Provides relief from pain and other distressing symptoms.
• Integrates the psychological and spiritual aspects of patient care.
• Offers a support system to help patients live as actively as possible until death.
• Offers a support system to help the family cope during the patient's illness and in their bereavement.

In an article that reported on a lecture he delivered in May, 2004, about developments in palliative care treatment, Dr. Payne was referenced as a "Great Teacher", and his message was repeated. See: "Payne Examines End-Of-Life Issues at Grand Rounds", by Carla Garnett, published in the May 11, 2004 issue of the NIH Record, by the National Institutes of Health.

That article concluded:

In the past few years, Payne said, experience and thoughtful discourse in the emerging end-of-life field has highlighted the importance of many concepts, including the necessity of assembling a multidisciplinary team for every patient that includes not only physicians and nurses, but also skilled social workers, clergy and other counselors.

Still, he pointed out, the territory remains unfamiliar, the footing often unsure for those in medicine. Effective palliative care is relatively new, even though terminal illness is not.

"We have a saying, 'Pain is the oldest human problem, but probably the youngest medical specialty,'" Payne offered at the start of his lecture.

"I think we're in the middle of a real renaissance and a real interesting rebirth of how we are thinking about fundamental things like pain, how we evaluate subjective effects in individuals and how we approach and alleviate human suffering."

Dr. Payne posts a welcome message on the website of the Duke Institute on Care at the End of Life.

The Institute, born in 2000, has a bright future. We have facilitated and conducted important conversations with diverse religious, spiritual, patient and advocacy communities concerned about access to and quality of palliative and end-of-life care. Our trademark interdisciplinary educational conferences include: Crossing Over Jordan © and the Last Miles of the Way Home © for African-American and other communities of color; Magnified and Sanctified © for Jewish communities, and Suffer the Children © for children who are seriously ill or dying.

In the past five years many exciting developments have occurred in palliative and end-of life-care. The use of hospice services by Americans continues to increase, with nearly one million patients and families using hospice care in 2004, an all time high. Hospital-based palliative care teams continue to grow, expanding basic care to focus on emotional and spiritual well being while simultaneously providing the best that state-of-the-art curative medical treatments can offer.

As an African-American, Dr. Payne is particularly well-qualified to teach about the disparities in end-of-life care -- including palliative care -- experienced by black Americans and by other racial minorities.

This disparity was highlighted earlier this week in a widely-noted article published in the Washington Post, entitled "At the End of Life, a Racial Divide: Minorities Are More Likely to Want Aggressive Care, Studies Show", by Rob Stein (Page A01, 03/12/07).

The article quoted Dr. Payne as an authoritative source:

After lives in which they often struggle to get medical care, African Americans and other minorities are more likely than whites to want, and get, more aggressive care as death nears and are less likely to use hospice and palliative-care services to ease their suffering, according to a large body of research and leading experts.

As a result, they are more likely to experience more medicalized deaths, dying more frequently in the hospital, in pain, on ventilators and with feeding tubes -- often after being resuscitated or getting extra rounds of chemotherapy, dialysis or other care, studies show.

"I think we need to be very attentive to attending to suffering in our patients and do everything we can to help minimize and ameliorate it," said Richard Payne, who runs Duke University's Institute on Care at the End of Life. "African Americans and other minorities are at greater risk of not dying well."

Those who attend his lecture in Pittsburgh next Monday evening will be privileged to hear from someone who knows & cares about these problems, and who offers some suggestions for improvement.

The presentation is free & open to the public.

“Self discipline is the highest form of self-respect.”
-- Dr. Richard Payne

* * *

Update: 03/16/07:

On March 16, 2007, a study report was published in Los Angeles, which addresses such issues of end-of-life care for various cultural groups in California. See: "Californians’ End-of-Life Care Differs by Race and Ethnicity -- California HealthCare Foundation to Explore Ways to Improve EOL Care, Address Disparities".

Here's an excerpt (in which I added links):

In California, the most populous and diverse state in the country, significant racial and ethnic differences exist at the end of life, according to several reports commissioned by the California HealthCare Foundation. These reports -- the first in a new series of CHCF-supported projects focusing on end-of-life issues -- found significant variations in the expectations, experiences, and decisions of patients and their families in the months preceding death.

“As California’s diverse population grows older, ensuring quality care at the end of life for everyone takes on even greater significance,” Mark D. Smith, M.D., M.B.A., president and chief executive of CHCF, said Thursday at the Association of Health Care Journalists conference in Los Angeles.

“By supporting research and projects to improve the quality of end-of-life care, CHCF sees an opportunity to help make California a national example of best medical practices and culturally appropriate care.”

One report released today, Racial, Cultural, and Ethnic Factors Affecting the Quality of End-of-Life Care in California, reviews and analyzes current data, along with new research from focus groups and surveys. The report examines the causes and patterns of death and dying and the impact on the delivery of health care.

“Focusing on patterns across populations can reveal information about access and disparities and is useful for policymakers thinking about improving the health care system,” said LaVera Crawley, M.D., M.P.H., a Stanford University medical ethics researcher and lead author of the report. “Clinical providers, on the other hand, should balance these racial, ethnic, and cultural factors with the preferences of each individual patient.”

Document downloads (in PDF format) regarding this Report are available:

• Racial, Cultural, and Ethnic Factors Affecting the Quality of End-of-Life Care in California
  (938K)

• Racial, Cultural, and Ethnic Factors Affecting the Quality of End-of-Life Care: Supplemental Materials (309K)

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!

* * *

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).]

"The Ultimate Gift" Movie

The movie The Ultimate Gift opened in selected theaters in limited showings on March 9, 2007. This movie is based upon the popular novel of the same name, The Ultimate Gift, written by Jim Stovall and published by RiverOak Publishing in September, 2001 (156 pages).

The book was well-received by both younger & older readers. It was adopted for use in schools, too. An Eighth Grade Reading Teacher (a Middle School Reading Specialist) commented on 10/27/2005 on the Barnes & Noble webpage devoted to the book:

I have used this book in my 8th grade reading classes for the past 8 years. This is the one book that all of my students have read all the way through. They can't put it down.

Just as it changed Jason's life, The Ultimate Gift has changed my life and is constantly changing the lives of my students. Excellent for students of all reading levels. I have recommended it to all of my colleagues. It is currently being used in the reading program at the High School across town. They love it too.

The movie's production was sponsored, in part, by the Financial Planning Association, a non-profit organization dedicated to the education & certification of financial advisors, who were much impressed by the book. See: Press Release, dated November 11, 2005, "The Ultimate Gift Begins Production in Charlotte":

The Financial Planning Association® (FPA®) and The Ultimate Gift Experience, LLC (TUGX) announced an agreement in June 2005 to create a working relationship that would enable the two organizations to explore the development of new services and products to transform the understanding and meaning of holistic wealth in today’s global society. FPA is the exclusive financial services association sponsor for this effort.

The movie's cast includes Drew Fuller, James Garner, Ali Hillis, Abigail Breslin, Lee Meriwether, Brian Dennehy, Mircea Monroe, Donna Cherry, & D. David Morin.

The official website for The Ultimate Gift movie summarizes its plot:

When his wealthy grandfather dies, trust fund baby Jason Stevens anticipates a big inheritance. Instead, his grandfather has devised a crash course on life with twelve tasks – or “gifts” – designed to challenge Jason in improbable ways, sending him on a journey of self-discovery and forcing him to determine what is most important in life: money or happiness.

That website notes a "movement" involving, first, the book, and now, the movie based upon it:

A few years back, a little book started something very big. A message that has already prompted people to give to others, connect with friends and family, and help those in need like never before.

Every one of us has powerful gifts to share, now we all have the added inspiration, resources and opportunities of a full-fledged movement. Each day, the momentum grows and the impact widens, as The Ultimate Gift continues to inspire thousands, if not millions, of others to share the gift and change the world.

For faith-based, philanthropic, or family-oriented groups that desire to discuss "The Ultimate Gift Experience", the producers have made available inspirational & educational materials:

Each day, The Ultimate Gift continues to inspire millions of people to discover their own unique values and treasures. But it's not enough to simply discover those gifts -- they have to be shared.

Use these discussion guides, graphics and clips to spread the word so that others in your life will also have the privilege to experience The Ultimate Gift. * * *

Although not a "major motion picture" promoted by a large studio, the movie has received favorable reviews. Excerpts from reviews are noted here under the heading "A little movie with big heart wins over the critics", with links to publications in newspapers, including the Arizona Republic, Baltimore Sun, Black Star News, Chicago Tribune, Chicago Sun-Times, Georgia Bulletin, Houston Chronicle, Kansas City Sun, L.A. Times, OrlandoSentinel, Seattle Post-Intelligencer, St. Louis Post-Dispatch, St. Petersburg Times, Syracuse Post-Standard, Village Voice, & Washington Post, and also in news services or trade publications, like Catholic News Service, Forbes, Hollywood Reporter, ReelTalk, Scripps Howard, & Variety.

The message of the movie appears to be direct, moralistic & upbeat. Some review comments are noted here by MetaCritic, with links to the original published reviews:

• Baltimore Sun -- "Things may work out predictably, but The Ultimate Gift does not yank on the heartstrings so much as pluck them gently."
  Chicago Tribune -- "The plot, though of the made-for-TV ilk, makes for good discussion fodder if you're trying to impress life's lessons on children or others you love. That said, be prepared to be hit over the head by the message, edifying as it is."
• Variety -- "Although cynics likely will reject The Ultimate Gift as warmed-over Capra-corn, this predictable but pleasant drama based on Jim Stovall's popular novel may be prized by those with a taste for inspirational uplift and heart-tugging sentiment."
• Village Voice -- "In the latest release from the faith-based division of 20th Century Fox, an oil-rich billionaire (James Garner) kicks the bucket and leaves a special bequest for his trust-fund-suckling grandson (Drew Fuller) — a gauntlet of hard work and hardship designed to give the boy an appreciation for the true value of a greenback. Among the tasks: living as a homeless person, and showing some genuine compassion for a debt-addled single mom (Ali Hillis) and her leukemia-stricken daughter (Abigail Breslin). If he succeeds, the "ultimate gift" of the movie's title will be his — which, in case you haven't figured it out, is one of those things you can't buy with a MasterCard."
  
• Washington Post -- "There's nothing wrong with the moral of The Ultimate Gift's story; in fact there's everything right about it. But director Michael O. Sajbel too often succumbs to movie-of-the-week sentimentality and starchy pacing. Still, Breslin's captivating performance reminds you why she was recently nominated for an Oscar."

This movie might be interesting to those involved in charitable giving, family relationships, intergenerational wealth transfer, faith-based lifestyles, or morality-oriented education.

It might also be appropriate for businesses involved in these areas to host a showing, as indicated by a comment from a pre-viewer of the movie on February 17, 2007:

My company recently hosted a private premier of the movie in Oklahoma City. It is truly a heartwarming and touching movie, suitable for the entire family. Individuals should beware that the story does stray from the book, but it only serves to enhance the storyline. I can't wait until it's release to see it again.

In reading previous postings, it is apparent that some have not in fact seen the film. The main character in the book is a nephew, in the movie he is a grandson. The trials are spelled out in the book as twelve gifts, while in the movie, you don't get a full understanding that there twelve until just before the credits are rolled. The book is a great story, the movie's storyline is even better.

For those who desire to see the movie, but cannot find a showing theater nearby, look for the movie on DVD in the near future.

Update: 03/12/07:

At noon, I opened a routine broadcast email message sent by the Planned Giving Design Center, last Friday, February 9, 2007, which announced & promoted the movie The Ultimate Gift. Read that posting here.

Update: 08/06/08:

For more resources and links on the matter of responsible wealthy children, see: PA EE&F Law Blog posting "Caring, Responsible (Wealthy) Children" (08/06/08).

Update: 10/12/08:

This afternoon, at a local Costco store, I bought The Ultimate Gift movie on DVD for $12.99, then watched it (2 hours) at night.

It is not an action-thriller, but an ethics-driller -- which is what so many of us need right now.

As our American society collectively attempts to recover from the financial misbehaviors that parallelled the unrestrained lifestyle of Jason's character before he endures his tests, and then learns the twelve lessons, we can learn much from this story.

Now having watched it, I can recommend it personally.