Living will is a form of advance directive that states a person medical decision regarding life-prolonging care in event a person becomes incompetent and terminally ill or unconscious

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Power of attorney for health care is another type of advance directive whereby a person appoints another person to make medical decisions on his behalf should he no longer be able to make decisions on his own



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Advance Directives: Living Wills & Durable Powers of Attorney for Health Care in Pennsylvania

Living Wills & Durable Powers of Attorney for Health Care in Pennsylvania Resource:
This document is written by the attorneys and staff of the Office of Legal Affairs of the University of Pennsylvania.


Patients have the right to make their own decisions about the health care they receive. This right is not lost even after the patient becomes unconscious or incompetent. An advance directive is a legal document which communicates an individuals medical decisions and/or appoints someone else to make decisions on his or her behalf should the individual become incapacitated and either permanently unconscious or terminally ill. To be effective, advance directives must comply with state statutes.
A living will is a form of advance directive which specifically states a persons medical decisions regarding life-prolonging care in the event that a person becomes incompetent and terminally ill or unconscious. A durable power of attorney for health care is another type of advance directive whereby one person appoints another person to make medical decisions on his or her behalf should he or she no longer be able to make such decisions on his or her own. An individual may use both a living will and a durable power of attorney for health care (combined in one document, or separately), thereby providing specific instructions as well as appointing a surrogate to assure that his or her instructions are carried out and to make medical decisions not specifically addressed within the living will.
In Pennsylvania, a living will and a durable power of attorney for health care are authorized by the Advance Directive for Health Care Act (the "Act"). The Act provides that it is not intended to condone or authorize mercy killings or to authorize euthanasia. It creates no presumption about the wishes of a person who does not have an advance directive. A pamphlet that describes patients rights under this Act and also includes a sample living will has been written and circulated by the Commonwealth of Pennsylvania; the text of this pamphlet has been reprinted and appears at the end of this chapter as Appendix A.
The Act contains a sample living will as well as a sample durable power of attorney for health care or proxy directive. This document should be considered equivalent to a power of attorney to consent to withholding of life-sustaining treatment if the patient otherwise meets the prerequisites of the Act, that is, provided the patient is incompetent and is terminally ill or permanently unconscious.


In Pennsylvania, a living will or durable power of attorney must be witnessed by two adults other than the declarant (or a person signing on behalf of the declarant if the declarant is unable to sign himself or herself). As when witnessing a patients informed consent to a procedure, the individual is witnessing the declarants signature to the document and is not attesting to the mental capacity or free will of the individual. In order for the advance directive to be properly executed, the declarant must be at least eighteen years of age or an emancipated minor and have sufficient mental capacity at the time of signing the document.
Although witnessing a document seems relatively harmless, disputes do arise and a witness can sometimes play an important role in resolving the authenticity of a document. Other parties may dispute the competency of the declarant or allege that the declarant was coerced into signing the advance directive or that he or she was not fully informed. Consequently, it is preferable to have parties familiar with the declarant, but who are not designated as substitute decision-makers, serve as witnesses whenever possible.


A living will becomes operative after the document is presented to the individuals attending physician and that physician, as well as a second physician, determine that the person is incompetent and in a terminal condition or permanently unconscious. The Act grants immunity to practitioners who act in accordance with an advance directive. Physicians and other practitioners are not required, however, to implement advance directives against their conscience. Under these circumstances, the physician must inform the patient (or the patients surrogate) of their refusal to comply with the directive and also arrange for the transfer of the patient to another physician or facility. Likewise, other practitioners should inform their employer of their conscientious objection.
In Pennsylvania, nutrition and hydration may not be withheld under a living will unless the individual has specifically indicated this in the document. The Act also provides that even where a pregnant woman has signed an advance directive indicating that she does not wish to receive life sustaining treatment, nutrition and/or hydration, such treatment must be provided despite her wishes, unless such treatment: (1) will be physically harmful to the pregnant woman; (2) would cause pain to the pregnant woman which cannot be alleviated by medication; or (3) will not continue the development and live birth of the unborn child. The Act also provides guidance to emergency medical personnel with respect to their rights and obligations when they confront an emergency involving an incapacitated patient with an advance directive.


A durable power of attorney for health care is a document in which a competent adult names a surrogate to make health care decisions for him or her without necessarily describing what these decisions will be. Unlike a living will, a durable power of attorney for health care may take effect regardless of whether the individual is terminally ill or permanently unconscious. It may also be used to authorize an individuals admission to a health care facility, such as a nursing home, or for consent for other health care decisions. Pennsylvania has created a statutory presumption that all powers of attorney are deemed durable unless specifically designated otherwise, which means that they survive (remain effective upon) the disability or incompetence of the individual signing the document.


The Patient Self-Determination Act ("PSDA") is federal legislation that requires hospitals, nursing homes, other institutional providers and HMOs participating in Medicare and Medicaid to provide information to patients at admission about advance directives and patients rights under state law to accept or refuse life-sustaining treatment and to formulate advance directives. The provider is also required to provide information about its own policies regarding implementing a patients right to refuse such treatment. The PSDA also requires the provider to document in the medical record whether the patient has executed an advance directive or wishes additional information. The provider is prohibited from conditioning care on the existence of an advance directive. The law also requires the institution to educate its staff and the community about advance directives

"Advance Directives: Living Wills & Durable Powers of Attorney for Health Care in Pennsylvania"

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