Proposed Amendments of PA POA, Guardianship & Health Care Directive Laws

On June 14, 2011, the Pennsylvania Joint State Government Commission posted the latest report (June, 2011) of the Advisory Committee on Decedents' Estates Laws regarding proposed amendments to the Probate, Estates, and Fiduciaries Code (PEF Code), which is available here.

This latest report (June 2011; PDF, 85 pages) alters and updates a prior report (June 2010; PDF, 87 pages) of the same organization regarding the PEF Code.

The two reports are the product of Subcommittee study and drafting, Advisory Committee review and revision, and JSGC approval, for submission to the Pennsylvania Legislature:

Over the years, the Advisory Committee has formed various subcommittees to assist in reviewing specific topics and developing statutory recommendations involving the Probate, Estates and Fiduciaries Code for consideration by the Advisory Committee.

The Subcommittee on Guardianships and Powers of Attorney was formed to review, among other things, 20 Pa.C.S. Chapters 54 (health care), 55 (incapacitated persons) and 56 (powers of attorney).

The subcommittee consists of John F. Meck, Esq., Chair; Robert Clofine, Esq.; William R. Cooper, Esq.; The Honorable Calvin S. Drayer, Jr.; Jay C. Glickman, Esq.; Neil E. Hendershot, Esq.; The Honorable Anne E. Lazarus; John J. Lombard, Jr., Esq.; James F. Mannion, Esq.; Michael J. Mullaugh, Esq.; R. Thomas Murphy, Esq.; The Honorable Paula Francisco Ott; The Honorable Stanley R. Ott; William Campbell Ries, Esq. and Robert B. Wolf, Esq.

After reaching consensus on its legislative recommendations, the Advisory Committee presents its recommendations to the Task Force on Decedents’ Estates Laws, which is a bicameral and bipartisan panel of legislators. The Task Force authorizes the Joint State Government Commission to publish a report containing the recommendations, which serve as a basis for legislation. * * * [Paragraphs rearranged]

What is in the June 2011 Report?  Its proposed legislation would reverse one Pennsylvania Supreme Court decision (Vine, December 21, 2010) regarding financial powers of attorney, and clarify the guardianship and healthcare decision-making statutes after another Pennsylvania Supreme Court decision (D.L.H., August 17, 2011) regarding medical decision-making.

In response to the Vine [v. Commonwealth, 9 A.3d 1150 (Pa. 2010)] and [In Re] D.L.H. [2 A.3d 505 (Pa. 2010)] rulings of the Pennsylvania Supreme Court, the Subcommittee on Guardianships and Powers of Attorney reviewed the topics of powers of attorney and health care decision-making and presented its recommendations at the 2011 annual meeting of the Advisory Committee.

The Advisory Committee reached consensus on the recommendations, and the Subcommittee subsequently finalized specific statutory amendments to the Probate, Estates and Fiduciaries Code, which are contained in this report.

The major statutory amendments that form the basis of this report concern the following:

(1) Third party liability and immunity regarding powers of attorney under 20 Pa.C.S.  Chapter 56, in light of the Vine ruling.
(2) An acknowledgment by the principal and affidavits of the two witnesses for powers of attorney.
(3) Health care decision-making by guardians under 20 Pa.C.S. Chapters 54 and 55, in light of the D.L.H. ruling.

Proposed legislative reversal of the Vine holding was explained in a Memo, dated April 4, 2011, from Senator Stewart J. Greenleaf to all Pennsylvania Senators:

[The Court's opinion appears to remove the immunity third parties have had for decades in relying on facially valid power of attorney.

Third parties will now be put in a position of having to investigate the circumstances surrounding the execution of a power of attorney.

Instead of routinely relying on the validity of a power of attorney, they may have to seek the principal's ratification before acting. And, in turn, if the third party questions the power of attorney and does not comply with the instructions of the attorney-in-fact, the third party could find itself subject to liability for failing to comply with an agent's instructions. * * *

The need for remedial legislation after the Vine decision was highlighted by a Pennsylvania Bar Association Recommendation, dated April 11, 2011.  That Recommendation concluded:

These amendments are vital to restore commercial viability of Powers of Attorney following the decision in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), while still adopting appropriate new safeguards for potentially vulnerable principals. In expressing our support for prompt action by the Pennsylvania State Legislature, we have carefully considered the proposals by the Joint State Government Commission and we support the Commission’s approach to the necessary amendments of existing statutes.

As a means of strengthening the original execution of powers of attorney in Pennsylvania, the most recent proposal would require notarization of the maker's signature and affidavits by two witnesses, which requirements parallel those of a self-proving last will.  Other amendments would allow for use of facsimile copies of documents.

The other proposal in the June 2011 Report would clarify points made in the D.L.H. case, where the PA Supreme Court considered, "[W]hether plenary guardians can refuse life-preserving medical treatment on behalf of a person who lacks -- and has always lacked -- the capacity to make personal healthcare decisions, where the person is neither suffering from an end-stage medical condition nor permanently unconscious."

Careful study of that decision revealed areas of the Guardianship statute and the Health Care Decision Making statute that should address long-term and end-of-life medical decision making by a court-appointed guardian.  The result would be these amendments:

• § 5521. Subsection (d.1)(1) is added to provide that a guardian of the person for an incapacitated person shall have the same authority to make health care decisions on behalf of the incapacitated person as a health care representative, and a decision shall be effective without court approval, subject to (1) any limitations and conditions set forth in the order of appointment; (2) the same health care decision-making process as prescribed in the statutory provisions regarding the authority of a health care agent in making health care decisions; (3) the same limitations regarding pregnancy and regarding the duties of an attending physician and health care provider under Chapter 54; (4) the statutory provisions regarding powers and duties only granted by the court and regarding powers and duties not granted to a guardian; and (5) any other provision regarding health care representatives as set forth in Chapter 54, except the statutory provisions regarding who may act as a health care representative.

• Subsection (d.1)(2) is added to specify that, to the extent practicable, a guardian of the person must consult with close family members of the incapacitated person in making a health care decision, particularly one involving end-of-life decision-making.

• Subsection (d.1)(3) is added to require that a petition that is filed for the appointment of a guardian of the person on or after the effective date of the act must state whether it is proposed that the guardian of the person shall have the power to make health care decisions and, if so, whether the guardian shall have all the powers of a health care representative to make such decisions, and any limitation of those powers.

• Subsection (d.1)(4) is added to require that the notice of a petition or hearing must contain the information under the previous paragraph.

• Subsection (d.1)(5) is added to require that an order of appointment of a guardian of the person that is issued on or after the effective date of the act must specify whether the guardian of the person shall have the power to make health care decisions and, if so, whether the guardian shall have all the powers of a health care representative to make such decisions, and any limitation of those powers.

• Subsection (d.1)(6) is added to specify that a guardian of the person appointed before the effective date of the act shall have the same powers as a health care representative unless (1) a prior court order has limited the power of the guardian to make health care decisions or (2) a health care representative is available and assumes authority to act by agreement between the health care representative and the guardian, in which case the guardian thereafter has no health care decision-making powers.

I serve as a Guardianship/POA Subcommittee member and as an Advisory Committee member, and I worked on the reports and recommendations.

I strongly advocate for the Legislature's adoption of the recommendations contained in the June 2010 Report, as modified by the June 2011 Report.

Update:  10/27/11:

In searching bill information on the website of the Pennsylvania General Assembly, I do not find any legislation pending that derives from the two reports.

However, a guardianship-related bill, House Bill 1720, was introduced recently and finds support.  See: PA EE&F Law Blog posting "Granny Snatching" Prohibition Pending in PA (10/25/11).

"Conquer Catastrophe" Course on June 10, 2011

On Friday, June 10, 2011, from 9:00 AM to 4:30 PM, the Pennsylvania Bar Institute will present a course entitled "Conquer Catastrophe: Reviving Professionally and Healing Personally".  I am a course planner and a presenter.  The subject?  Recovery by lawyers from a personal catastrophe.

The PBI's website lists the course description through a Table of Contents of the course manual.  It is priced very reasonably, since this presentation is a service to the Bar.

I constructed a separate website for the course, also entitled "Conquer Catastrophe", which offers information and resources on the subject matter, but not the written materials for the course.

As a course planner, I submitted a course explanation to be included in the materials, which I reproduce below. 

This course is very unusual and highly personal, but relevant.  The presenters' backgrounds are deep and varied.  We will all learn from each other.

The course will be presented just one-time, live in the Harrisburg area, broadcast simultaneously to ten other locations in Pennsylvania, on Friday, June 10, 2011, from 9:00 AM until 4:30 PM. Of the six hours of continuing legal education, one hour will qualify for the ethics requirements.

Afterwards, the course will become available from PBI in audio format, with the printed materials; and it could be ordered online.  The companion website will remain available publicly, free.

Conquer Catastrophe:

Course Overview through Twenty Questions

By Neil E. Hendershot, Esq.

"I am not concerned that you have fallen.

I am concerned that you arise."

-- Abraham Lincoln (Lawyer & 16th US President)

          “So You're Going to Present . . .”, published in 2004 by the Association for Continuing Legal Education, is a booklet that guides legal course planners and speakers in preparing a "high quality learning-focused presentation."

          For the construction of this unusual and quite customized PBI course, I answered that booklet’s questions (Chapter 2, pp. 8-9), which reflect the purpose and setting of the course, and suggest what participants might learn:

1.  What are the issues that have given rise to dealing with this topic?

          My personal experiences and past searches for resources highlighted a lack of concentrated information targeted towards lawyers who are affected by a personal catastrophic event.  I sought guidance for such a “patient-professional” (my term for a lawyer whacked by a sudden debilitating illness, accident, or event) to revive professionally and heal personally for a continued productive life.  This course is our attempt to assemble such information.

2.  Is there a specific event or series of events that precipitated the concern about this topic?

          My personal experiences in 1999 with a burst appendix and life-saving internal surgery, and again in 2009 with a broken neck and reconstructive spinal surgery, together with recoveries from those unforeseen, catastrophic events, were my primary motivation to plan this course.  However, current national events, including the increasing number of brain and spinal injuries suffered by our troops serving in Iraq and Afghanistan, and also the shooting of Representative Gifford in Arizona, highlight the need for rehabilitation and retraining for productive lives.

3.  Are there new changes?  e.g., new legislation, regulations, or case law?

          Pennsylvania state laws regarding disability have not changed significantly, recently.  However, there are pending reports to the Legislature regarding both Powers of Attorney (Chapter 56 of the Probate, Estates & Fiduciaries Code) and Guardianship (Chapter 55).  The proposed improvements mainly affect procedures and formalities, not substantive rights.  These evolving financial and personal management arrangements will be referenced.

          Furthermore, the existing federal laws and systems providing benefits to disabled persons likely will be changing due to long-term fiscal constraints, but that is a political process only now gaining momentum.  We will reference the Social Security, Medicare, and Medicaid systems.

          On the other hand, the Veterans Administration and the armed services are more receptive towards long-term treatment of brain injuries for injured military personnel.

4.  What are the new issues related to these changes that need to be addressed?

          For the patient-professional, applicable legal areas include disability insurance coverage, medical insurance coverage, government benefits, increasing accountability as a professional under malpractice insurance and ethical rules, and tort reform. 

          Also, the business and legal environments have constricted economically so that responding to recovering patient-professionals can be more difficult.

5.  How do these issues affect practice?

          A lawyer struck with an injury, illness, or traumatic event must develop a personal approach to maintain a position or a practice, even while reduced in capability.  This is a complex, demanding process.  It can be conducted successfully if the patient-professional tenaciously pursues a vision of recovery and resumption -- or at least reorientation into productive activity.

6.  Given these issues, what possible content could be focused on?

          Those topics are set forth in the course agenda.

7.  What are the areas of content that may need to be addressed through continuing education?  Are the issues being addressed in other ways as well?

          This course is distinctive and wide-ranging.  These topics are addressed by other disciplines s and in other settings than those involving lawyers.  For example, the University of Maryland’s Shock & Trauma Center and many major medical centers, hold educational seminars. Its Trauma Survivors Network provides information and support to members and their families.

          Some health care insurers offer case management and wellness programs.

          Specific causes of personal catastrophe are addressed by non-profit organizations, such as the American Heart Association (for heart and stroke), the Christopher Reeves Foundation (for spinal injuries), the American Cancer Society (for all forms of cancer), and the American Lung Association (for breathing diseases), among thousands that educate and advocate.

          Social networking collects people of similar interests, commitments, or experiences, who share resources and offer encouragement.

8.  If this is a part of several presentations, how does this presentation fit with what else is being presented?

          This is a one-time course.  However, I hope that other professions, such as accountants and physicians, might develop similar informational resources.

9.  How do other lawyers see this issue? What do they think they need to learn?  How open are they to learning and changing in this area of practice?

          This is the point of the suggested opening exercise for the audience and their sharing of stories.

10.  What is the likely range of perspectives about this issue?

          Lawyers are a hardy, highly intelligent, ego-driven, self-reliant, competitive group.  Lawyers may find the threat of disability or reduced capability difficult to consider. 

          Also, lawyers are driven by thought processes involving time management, rationality, advocacy, and judgment. These characteristics and expectations could be at odds with admissions of performance disability, lack of control, uncertainty as to outcome, extended recuperation, and dependency upon others.

          As to the views of individuals affected by a personal catastrophe, a few speakers will relay their experiences, and others’ stories can be accessed online on the website of the University of Maryland’s Shock & Trauma Center.

11.  What does this audience assume to be true about this issue?  Are these assumptions valid?

          I will ask questions about audience assumptions at the beginning of the course.  The presentations will test whether those assumptions are valid.

12.  What are the hot concerns?  Why?

          The "hottest" concerns would be lawyer performance, fulfillment of ethical obligations, and practice maintenance.  Those are survival issues.  Other issues may seem less immediate, but must be addressed long-term for resumption of a legal practice and emotional stability.  However, all elements are intertwined.

13.  What is the nature of the skill or knowledge gap for this audience in relation to this aspect of the law or legal practice?

          The knowledge and skills required to address recovery from a personal catastrophe are not taught in law school and are not developed in professional work except by observation.  Lawyers are trained in problem-solving and in advocacy instead.  These abilities can be applied to personal situations and challenges.  Lawyers can acquire the skills and knowledge to accomplish a revived work role and healthy personal life.  Much knowledge, however, derives from other fields, such as healthcare systems, psychology/psychiatry, neuroscience and other medical specialties, physical therapy, and even religion/spirituality.  This is the knowledge gap we address in this course.

14.  What is the cause of the gap?

          Limited personal experience, specialization in the law, unpredictability as to a particular future situation, avoidance of negative thinking, focus on day-to-day demands, and a presumption that “it will not happen to me”.

15.  What is the impact of the gap in knowledge or skill on individual practitioners and their clients?

          The gap in knowledge, together with the imposition of disability or debilitation, can result in failure by an attorney to fulfill basic professional and office requirements.  Such insufficiencies can result in lost clients, missed deadlines, insufficient efforts, minimal revenue, personal hopelessness, long-term depression, altered reputation, and possible malpractice, even disbarment.

16.  What are the likely similarities and differences between me and this audience in relation to my view of the topic, my knowledge, skill, and experience?

          My view evolved through two experiences.  I faced challenges to “conquer catastrophe” by being injured by illness in 1999 and by accident in 2009.  I worked through recoveries, with mixed effectiveness.  Those in the audience may not have experienced such catastrophes, or may have coped better or worse than me.  Some may face debilitating illnesses that may prevent return to prior functioning, and some may face degenerative diseases that constantly redefine functioning at a lower level. My views developed in conjunction with the reactions of family, co-workers, and friends.

17.  Will this topic likely appeal to general practitioners, or to lawyers who specialize in this practice area?

          This is not a course for lawyers to develop a proficiency in professional catastrophe remediation -- that field already is known as "personal injury" or “medical malpractice” law.  Instead, this course is intended to inform and guide a lawyer, or that lawyer's family, co-workers, or friends, in constructively and progressively addressing a personal catastrophic event, so that the lawyer can revive a legal practice/position, and heal personally.

18.  What will the audience be doing before and after my presentation?

          Likely, go right back into their current circumstances – normal work, personal recovery, interpersonal support of another, or provider services.  I hope that each participant will be more knowledgeable and positive about the processes and adjustments following a personal catastrophe.

19.  How large is this audience likely to be?

          As large as it needs to be, for those who have been affected.  Others, who now are oblivious to the offering of this course, will access it in the future when a personal catastrophe occurs.

20.  What is the facility like?  What limitations does it have in relation to my being seen and heard by the audience?  What audio and visual equipment is available?

           This is a live presentation at PBI’s headquarters in the Harrisburg area.  This course will be conducted one-time, simultaneously broadcast by audio/video to remote locations in Pennsylvania, and recorded for future audio replay, perhaps over the Internet.

Dec. 31 Deadline for PA Tax Rebate Applications

This is a year-end message: December 31, 2010 is the deadline to file Property Tax/Rent Rebate claim forms (PA-1000) for those who are eligible to receive a rebate from the PA Department of Revenue based upon income and status. 

The Program is described at www.PaPropertyTaxRelief.com.  An application form can be downloaded from the PA Department of Revenue website.  Again, completed applications must be postmarked by Friday, December 31st to be considered.

For some Pennsylvania seniors, this is an important tax relief benefit, but one that must be sought through an application.  The Pennsylvania Property Tax / Rent Relief Program provides rebates up to $975 for PA homeowners, and up to $650 for PA renters, who meet its criteria.

The Property Tax/Rent Rebate program benefits eligible Pennsylvanians age 65 and older; widows and widowers age 50 and older; and people with disabilities age 18 and older.

The program expansion increased the income limit from $15,000 to $35,000 (which excludes half of Social Security income) for homeowners and raises the maximum rebate for both homeowners and renters from $500 to $650. The income limit for renters is $15,000.

The Program's recent expansion provides additional benefits to certain residents:

The program expansion also provides for supplemental property tax rebates of up to $325 – on top of the standard rebates – to homeowners in Philadelphia, Pittsburgh and Scranton; and to those in other parts of the state who pay more than 15 percent of income on property taxes. The Revenue Department automatically calculates supplemental rebates for qualifying homeowners.

The Program is described in a brochure available online.

On December 8, 2010, Governor Ed Rendell issued a Press Release entitled Governor Rendell Reminds Residents Of Dec. 31 Property Tax/rent Rebate Deadline, Free Application Assistance Available, urging those qualified for the rebates to apply by the deadline.  

The Press Release subtitle noted "Nearly 88,000 Eligible Older Adults, People with Disabilities Have Not Yet Applied."

“Nearly 619,000 seniors already applied for rebates this year, but we know there are about 88,000 more people who qualify but have not yet applied,” Governor Rendell said. “I encourage all Pennsylvanians to review the program’s criteria to consider if anyone they know may qualify for a rebate, and help those loved ones apply before the Dec. 31 deadline.”

In response to recent inquiries and complaints regarding fee-based Property Tax/Rent Rebate program application filing services offered privately, Governor Rendell reminded residents that free assistance is available at hundreds of locations across the state.

“It’s unfortunate that some companies charge fees to provide a service that the government and other agencies provide for free. Application forms and assistance are available at no cost from Department of Revenue district offices, local Area Agencies on Aging, senior centers and state legislators’ offices.”

Pennsylvania is providing a total of $772.5 million in property tax relief this year, including expanded rebates from the state’s Property Tax/Rent Rebate program for seniors and residents with disabilities and general property tax relief for all homeowners that was distributed through school districts this past summer.

“So far, these rebates helped to eliminate school property taxes for about 120,000 residents this year,” said Governor Rendell. “I don’t want any eligible person to miss out on this help to pay property taxes or rent.” * * *

The provided forms relate to the tax year 2009.  If past operations of the Department of Revenue predict the future, forms for the tax year 2010 will be mailed during the first quarter of 2011.  See: When will the 2009 Property Tax/Rent Rebate form be available? (Updated 09/15/2010), posted by the PA Department of Revenue.

An answer posted by the Department to another question -- Can I file a Property Tax/Rent Rebate for previous years? (Updated 09/15/2010) -- emphasizes the firmness of the coming deadline: "No. Once the deadline for filing has passed, you cannot file for a Property Tax/Rent Rebate for that year."

Adult Protective Services to be Expanded

According to a Press Release issued on September 28, 2010, by PA Senator Pat Vance (R-Cumberland/York), the Pennsylvania House of Representatives on that date approved legislation sponsored by her "to provide protective services for adults with cognitive or physical disabilities."  The legislation (SB 699, PN 1888) was presented to the Governor on September 29, 2010, for his consideration of signing into law.

Senate Bill 699 (of the 2009-10 Session), is described as follows:

An Act providing for protection of abused, neglected, exploited or abandoned adults; establishing a uniform Statewide reporting and investigative system for suspected abuse, neglect, exploitation or abandonment of adults; providing for protective services; and prescribing penalties.

According to the Press Release, the legislation unifies a patchwork of services that currently exist for adults between the ages of 18 and 59, and reaches those adults with limited protections because they reside with families or non-regulated caregivers.

The Adult Protective Services system established by the bill clearly defines procedures for filing complaints of abuse, neglect, and exploitation. It also provides for investigations of those complaints and the development of service plans to remove the adult from imminent harm and provide for long-term needs. 

More than 40 states currently have adult protective services systems in place that provide some level of protection and advocacy for individuals with cognitive or physical disabilities between the ages of 18 and 60.  Pennsylvania, however, has had no process by which any person who knows of the abuse of an adult in this age group can offer any meaningful assistance. * * *

During the past few years, Senator Vance focused on elder law and disability issues.  Her coordination of efforts with advocacy groups -- such as those set forth in a 2-page online listing dated July 8, 2010 of organizations supporting Senate Bill 699 -- and professional associations, such as the Pennsylvania Bar Association's Elder Law Section yielded results in the Senate and the Legislature.

"For a number of years I have advocated for this legislation, but concerns regarding funding delayed action," Vance said.

"Under the new federal Patient Protection and Affordable Care Act, it appears money will be available for this worthwhile and important program that the fills the gap between the protective service systems for children and the one for older adults."

One of the organizations on that list of supporters of SB 699 is Vision for EQuality, Inc., which announced the House adoption of it with great enthusiasm:

CONGRATULATIONS! WE DID IT!

September 28, 2010

The Pennsylvania House of Representatives today passed Senate Bill 699 to protect vulnerable adults who are abused or neglected. The House vote today was a unanimous 196-1.

SB 699 unanimously passed the Senate on July 3, 2010.

Governor Ed Rendell is expected to sign it into law. Pennsylvania is currently only one of five states yet to implement a protective services system. * * *

The advocates' years-long efforts -- now rewarded because federal funding should be available -- are noted on its home page:

Throughout Pennsylvania, there have been many cases of abuse and neglect of people with disabilities, yet there is no place to report such situations and no agency authorized to investigate them.

The PA Legislative Budget and Finance Committee (LBFC), an arm of the PA legislature, studied the issue in 2003 and concluded an adult protective services law was needed. According to that LBFC report [ An Assessment of the Need for an Adult Protective Services Program], an estimated 4,000 reports of abuse will be made statewide annually, and about 1,200 (or 30%) will be substantiated.

A House hearing held in the fall of 2006 documented a number of abuses, including a young woman with an intellectual disability who spent several days locked in a basement with her deceased sister and a woman with multiple sclerosis who was raped by her husband. Many individuals with disabilities do not come forward and press charges with traditional law enforcement because they fear retribution by the perpetrator on whom they often rely for care, food, and shelter. 

Pennsylvania has a protective services law for children and one for older adults, and now SB699 will authorize the development of a protective services system for adults ages 18 to 59. [Links added.]

Update: 11/17/10:

According to the posted Legislative History for SB 699, on October 7, 2010, Governor Rendell signed into law the legislation relating to "protective services for adults with cognitive or physical disabilities" as Act No. 70 of 2010.

According to Section 704 ("Effective Date"), "[t]his act shall take effect in six months."

Thus, the implementation date for the new law will be on April 7, 2011.

The Pennsylvania Department of Public Welfare will be responsible for administering the new adult protective services.  Searching the Department's website for references either to Act 70 or SB 699 does not yet yield results, but it would, no doubt, as the Department approaches the effective date for the new law.

Update: 02/13/13:

Nearly two years after the enactment, I still cannot find reference on the website of the Pennsylvania Department of Public Welfare to this law.  I wonder about its implementation under DPW.