Advance Health Care Directives or Living Wills

by Tom Wolpert on November 20, 2013



By Thomas Wolpert, Esq.


Pennsylvania now employs a term ‘Advanced Health Care Directive’ that used to go by a more common term of ‘Living Will.’   The same general thought is also captured in the phrases  ‘Durable Health Care Power of Attorney’ or ‘Health Care Agent.’  The importance of naming someone to make health care decisions for you when you cannot make them for yourself grows every year.   Medical technology each year increases the chances of you living a longer life, but also increases the chances of you being very much alive while aggressive medical procedures are used which affect your ability to reason and understand.  No one needs an Advanced Health Care Directive while they are able to process medical information and advice from his or her physicians and providers – but when you can’t process that information, you want to have already named and legally authorized an agent in advance, somebody you trust to advise the medical community of what your wishes are.  Spouses and/or children are obvious choices, but you can name anyone over 18, and you can name alternate Health Care Agents.  Think about the fact that if you only name your spouse, and both of you turn 98 years old at the same time, neither may be able to act for the other at that advanced age or state of abilities.

Many people are under the impression that this is all about ‘turning off the life support’ – but that is not true.  If you have a heart bypass operation, or MERS (look it up) in the hospital, or a severe infection, you may be on heavy pain-killers, in and out of a sleeping state, or just not thinking very clearly.  No one who comes into my office, walking under their own power, can make an advance prediction about something as simple as whether or not they would approve of a feeding tube in a future situation.  Do you mean a feeding tube when you are 55 years old, and all your other organs are healthy and you are working every day with good prospects for recovery, or do you mean a feeding tube when you are 99 years old, and all your other organs are near an end-state?

An Advance Health Care Directive names a trusted agent who performs two essential duties when you cannot.  Your health care agent obtains information from your physicians and medical providers, and is authorized to receive that information.  Based on that medical and scientific information, your agent then applies his or her knowledge of you personally – who you are, what you want, how you would decide if you could – and advises the treating physicians on how to proceed.  Is it time to continue heroic medical efforts, or time to scale back the medical interventions, and make use of a hospice setting to be as comfortable as possible?  That is the decision your health care agent can make, because you authorized him or her to obtain all your health care information to make informed medical choices for you, when you were well enough to make important decisions.

This is also not only about ‘Do Not Resuscitate’ – but also about the legal reverse.  Preventing a hospital from being more anxious to cease medical interventions than you are is also in view.  Recently a case was decided by Judge Reibman of Lehigh County Orphans Court, in which an indigent prisoner was brought to a Lehigh County hospital, suffering from a terminal illness.  The prisoner, while he could speak, was quite outspoken that he wanted medical interventions to save his life.  The hospital wanted to cease from such efforts, based on its view that such would be fruitless.  The hospital petitioned the Orphans Court of Lehigh Valley to proceed as the hospital wished, essentially by asking that another health care agent be named to override the decisions of the prisoner.  While the litigation proceeded, the prisoner passed away, and all that was left was a dispute over responsibility for a relatively small amount of attorney’s fees.  Judge Reibman thoroughly demolished the hospital’s legal position in a sharply -worded opinion, analyzing the status of Pennsylvania law on the topic.  A hospital has no legal right to override your decisions, or by implication the decisions of a properly authorized health care agent, simply because your view and its view of medical efforts which are appropriate differ.

For more on estate planning for residents of Pennsylvania, click on Wolpert Schreiber P.C.  For a personal injury case in Pennsylvania, click on PA Injury Case.

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