HB 2701

                                                 PRINTER'S NO.   3772
                THE GENERAL ASSEMBLY OF PENNSYLVANIA
                    HOUSE BILL
                    No. 2701
                                          Session of
                                            2026
INTRODUCED BY HANBIDGE, MAYES, HOWARD, HILL-EVANS, SANCHEZ,
   MADDEN, OTTEN, SHUSTERMAN AND CERRATO, JULY 14, 2026
REFERRED TO COMMITTEE ON HEALTH, JULY 14, 2026
                               AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2    Pennsylvania Consolidated Statutes, in health care, further
3    providing for definitions, for legislative findings and
4    intent, for compliance, for conflicting advance health care
5    directives, for life insurance, for health care instruments
6    optional, for pregnancy and for liability, providing for
7    prohibited conduct and damages, for judicial relief, for
8    implementation, savings provision and transitional provision
9    and for uniformity of application and construction, repealing
10    provisions relating to living wills, providing for health
11    care decisions and advance health care directives, repealing
12    provisions relating to short title of subchapter, providing
13    for advance mental health care directive, further providing
14    for execution, for requirements and options, for when health
15    care power of attorney operative, for appointment of health
16    care agents, for authority of health care agent, for
17    countermand, for amendment, for revocation, for relation of
18    health care agent to court-appointed guardian and other
19    agents, for decisions by health care representative, for
20    duties of attending physician and health care provider, for
21    effect on other State law, for validity and for form,
22    providing for effect of copy and certified physical copy,
23    repealing provisions relating to example and providing for
24    example; repealing provisions relating to mental health care;
25    and making an editorial change.
26    The General Assembly of the Commonwealth of Pennsylvania
27 hereby enacts as follows:
28    Section 1.    Sections 5422, 5423, 5424, 5425, 5427, 5428, 5429
29 and 5431 of Title 20 of the Pennsylvania Consolidated Statutes
1 are amended to read:
2 § 5422.    Definitions.
3    The following words and phrases when used in this chapter
4 shall have the meanings given to them in this section unless the
5 context clearly indicates otherwise:
6    "Advance health care directive."        A health care power of
7 attorney, [living will or a written] health care instruction or
8 combination of a health care power of attorney and [living
9 will.] health care instruction. The term includes an advance
10 mental health care directive.
11    "Advance mental health care directive."        A power of attorney
12 for health care, health care instruction, or both, created under
13 section 5451.1 (relating to advance mental health care
14 directive).
15    ["Attending physician."        The physician who has primary
16 responsibility for the health care of a principal or patient.]
17    "Bracelet."     An out-of-hospital do-not-resuscitate bracelet
18 as defined under section 5483 (relating to definitions).
19    "Capacity."     Having capacity under section 5448.3 (relating
20 to capacity).
21    "Cardiopulmonary resuscitation."        Any of the following
22 procedures:
23(1)   Cardiac compression.
24(2)   Invasive airway technique.
25(3)   Artificial ventilation.
26(4)   Defibrillation.
27(5)   Any other procedure related to those set forth in
28    paragraphs (1) through (4).
29    "Cohabitant."     Each of two individuals who have been living
30 together as a couple for at least one year after each became an
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1 adult or was emancipated and who are not married to each other.
2    ["Competent."    A condition in which an individual, when
3 provided appropriate medical information, communication supports
4 and technical assistance, is documented by a health care
5 provider to do all of the following:
6(1)     Understand the potential material benefits, risks
7    and alternatives involved in a specific proposed health care
8    decision.
9(2)     Make that health care decision on his own behalf.
10(3)     Communicate that health care decision to any other
11    person.
12 This term is intended to permit individuals to be found
13 competent to make some health care decisions, but incompetent to
14 make others.]
15    "Default surrogate."    An individual authorized under section
16 5461 (relating to decisions by default surrogate) to make a
17 health care decision for another individual.
18    "DNR."    Do not resuscitate.
19    "Domestic partner or life partner."      The partner of an
20 individual in a domestic partnership or life partnership that is
21 recognized by a municipality of this Commonwealth.
22    "Emergency medical services provider."      As defined under
23 section 5483 [(relating to definitions)].
24    "End-stage medical condition."       An incurable and irreversible
25 medical condition in an advanced state caused by injury, disease
26 or physical illness that will, in the opinion of [the attending
27 physician] an individual's responsible health care professional
28 to a reasonable degree of medical certainty, result in death,
29 despite the introduction or continuation of medical treatment.
30 Except as specifically set forth in an advance health care
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1 directive, the term is not intended to preclude treatment of a
2 disease, illness or physical, mental, cognitive or intellectual
3 condition, even if incurable and irreversible and regardless of
4 severity, if both of the following apply:
5(1)     The [patient] individual with the condition would
6    benefit from the medical treatment, including palliative
7    care.
8(2)     Such treatment would not merely prolong the process
9    of dying.
10    "Family member."    A spouse, domestic partner, life partner,
11 adult child, parent or grandparent, or an adult descendant of a
12 spouse, domestic partner, life partner, child, parent or
13 grandparent.
14    "Guardian."    A person appointed under law by a court to make
15 decisions regarding the person of an individual, including a
16 person appointed under Chapter 55 (relating to incapacitated
17 persons) as the guardian of the person of an individual. The
18 term does not include a guardian ad litem.
19    "Health care."    [Any care, treatment, service or procedure to
20 maintain, diagnose, treat or provide for physical or mental
21 health, custodial or personal care, including any medication
22 program, therapeutical and surgical procedure and life-
23 sustaining treatment.] Care or treatment or a service or
24 procedure to maintain, monitor, diagnose or otherwise affect an
25 individual's physical or mental illness, injury or condition.
26 The term includes mental health care.
27    "Health care agent."    An individual [designated by a
28 principal in an advance health care directive.] appointed under
29 a power of attorney for health care to make a health care
30 decision for the individual who made the appointment. The term
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1 includes a co-agent or alternate agent appointed under section
2 5455 (relating to appointment of health care agents).
3    "Health care decision."    A decision by an individual or the
4 individual's surrogate regarding [an] the individual's health
5 care, including, but not limited to, the following:
6(1)   Selection [and] or discharge of a health care
7    [provider] professional or health care institution.
8(2)   Approval or disapproval of a diagnostic test,
9    surgical procedure [or], program of medication, therapeutic
10    intervention or other health care.
11(3)   Directions to initiate, continue, withhold or
12    withdraw all forms of life-sustaining treatment, including
13    instructions not to resuscitate.
14(4)   Admission to a medical, nursing, residential or
15    similar facility, or entering into agreements for the
16    individual's care.
17(5)   Making anatomical gifts, or after the death of the
18    individual, disposing of the remains or consenting to
19    autopsies.
20    "Health care institution."    A facility or agency licensed,
21 certified or otherwise authorized or permitted by other law to
22 provide health care in this Commonwealth in the ordinary course
23 of business. The term includes a health care facility as defined
24 in the act of July 19, 1979 (P.L.130, No.48), known as the
25 Health Care Facilities Act.
26    "Health care instruction."    A direction, whether or not in a
27 record, made by an individual that indicates the individual's
28 goals, preferences or wishes concerning the provision,
29 withholding or withdrawal of health care. The term includes a
30 direction intended to be effective if a specified condition
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1 arises.
2    "Health care power of [attorney."        A writing made by a
3 principal designating an individual] attorney" or "power of
4 attorney for health care."     A record in which an individual
5 appoints a health care agent to make health care decisions for
6 the principal.
7    "Health care [provider."     A person] professional."     An
8 individual who is licensed, certified or otherwise authorized by
9 the laws of this Commonwealth to administer or provide health
10 care in the ordinary course of business or practice of a
11 profession. The term includes personnel recognized under the act
12 of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical
13 Services Act.
14    ["Health care representative."        An individual authorized
15 under section 5461 (relating to decisions by health care
16 representative) to make health care decisions for a principal.
17    "Incompetent."     A condition in which an individual, despite
18 being provided appropriate medical information, communication
19 supports and technical assistance, is documented by a health
20 care provider to be:
21(1)   unable to understand the potential material
22    benefits, risks and alternatives involved in a specific
23    proposed health care decision;
24(2)   unable to make that health care decision on his own
25    behalf; or
26(3)   unable to communicate that health care decision to
27    any other person.
28 The term is intended to permit individuals to be found
29 incompetent to make some health care decisions, but competent to
30 make others.]
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1    "Individual."   An adult or emancipated minor.
2    "Invasive airway technique."     Any advanced airway technique,
3 including endotracheal intubation.
4    "Life-sustaining treatment."     Any medical procedure or
5 intervention that, when administered to [a patient or principal]
6 an individual who has an end-stage medical condition or is
7 permanently unconscious, will serve only to prolong the process
8 of dying or maintain the individual in a state of permanent
9 unconsciousness. In the case of an individual with an advance
10 health care directive or order, the term includes nutrition and
11 hydration administered by gastric tube or intravenously or any
12 other artificial or invasive means if the advance health care
13 directive or order so specifically provides.
14    ["Living will."   A writing made in accordance with this
15 chapter that expresses a principal's wishes and instructions for
16 health care and health care directions when the principal is
17 determined to be incompetent and has an end-stage medical
18 condition or is permanently unconscious.]
19    "Long-term care facility."    As defined in the Health Care
20 Facilities Act.
21    "Medical command physician."     A licensed physician who is
22 authorized to give a medical command under the act of July 3,
23 1985 (P.L.164, No.45), known as the Emergency Medical Services
24 Act.
25    "Mental health care."     Care, treatment, service or procedure
26 to maintain, monitor, diagnose, treat or otherwise affect an
27 individual's mental illness or other psychiatric, psychological
28 or psychosocial condition.
29    "Necklace."    An out-of-hospital do-not-resuscitate necklace
30 as defined under section 5483 [(relating to definitions)].
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1    "Order."    An out-of-hospital do-not-resuscitate order as
2 defined under section 5483 [(relating to definitions)].
3    "Patient."    An out-of-hospital do-not-resuscitate patient as
4 defined under section 5483 [(relating to definitions)].
5    "Permanently unconscious."    A medical condition that has been
6 diagnosed in accordance with currently accepted medical
7 standards and with reasonable medical certainty as total and
8 irreversible loss of consciousness and capacity for interaction
9 with the environment. The term includes, without limitation, an
10 irreversible vegetative state or irreversible coma.
11    "Person."     Any individual, estate, corporation, partnership,
12 association or other similar entity, or any Federal, State or
13 local government or governmental agency or instrumentality or
14 other legal entity.
15    "Person interested in the welfare of the individual."    Any of
16 the following:
17(1)     the individual's surrogate;
18(2)     a family member of the individual;
19(3)     the cohabitant of the individual;
20(4)     a public entity providing health care case
21    management or protective services to the individual;
22(5)     a person appointed under other law to make decisions
23    for the individual under a power of attorney for finances; or
24(6)     a person that has an ongoing personal or
25    professional relationship with the individual, including a
26    person that has provided educational or health care services
27    or supported decision making to the individual.
28    "Physician."    An individual authorized to practice medicine
29 under either the act of December 20, 1985 (P.L.457, No.112),
30 known as the Medical Practice Act of 1985, or the act of October
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1 5, 1978 (P.L.1109, No.261), known as the Osteopathic Medical
2 Practice Act.
3    ["Principal."    An individual who executes an advance health
4 care directive, designates an individual to act or disqualifies
5 an individual from acting as a health care representative or an
6 individual for whom a health care representative acts in
7 accordance with this chapter.]
8    "Reasonably available."    Readily able to be contacted without
9 undue effort and willing and able to act in a timely manner
10 considering the urgency of [the] an individual's health care
11 needs. When used to refer to a health care agent or default
12 surrogate, the term includes being willing and able to comply
13 with the duties under section 5456 (relating to duties and
14 authority of health care agent) in a timely manner considering
15 the urgency of the individual's health care situation.
16    "Record."    Information that is inscribed on a tangible medium
17 or that is stored in an electronic or other medium and is
18 retrievable in perceivable form.
19    "Responsible health care professional."    Either of the
20 following:
21(1)     a health care professional designated by an
22    individual or the individual's surrogate to have primary
23    responsibility for the individual's health care or for
24    overseeing a course of treatment; or
25(2)     in the absence of a designation under paragraph (1)
26    or, if the professional designated under paragraph (1) is not
27    reasonably available, a health care professional who has
28    primary responsibility for overseeing the individual's health
29    care or for overseeing a course of treatment.
30    "Sign."   Includes any mark with present intent to
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1 authenticate or adopt a record:
2(1)   execute or adopt a tangible symbol; or
3(2)   attach to or logically associate with the record an
4    electronic symbol, sound or process.
5    "State."     A state of the United States, the District of
6 Columbia, Puerto Rico, the United States Virgin Islands or any
7 other territory or possession subject to the jurisdiction of the
8 United States. The term includes a federally recognized Indian
9 tribe.
10    "Supported decision making."        Assistance, from one or more
11 persons of an individual's choosing, that helps the individual
12 make or communicate a decision, including by helping the
13 individual understand the nature and consequences of the
14 decision.
15    "Surrogate."     Any of the following:
16(1)   a health care agent;
17(2)   a default surrogate; or
18(3)   a guardian authorized to make health care decisions.
19 § 5423.    Legislative findings and intent.
20    (a)    Intent.--This chapter provides a statutory means for
21 [competent adults] individuals with capacity to control their
22 health care through instructions [written] made in advance or by
23 health care agents or [health care representatives] default
24 surrogates and requested orders. Nothing in this chapter is
25 intended to:
26(1)   affect or supersede the holdings of In re Fiori 543
27    Pa. 592, 673 A.2d 905 (1996);
28(2)   condone, authorize or approve mercy killing,
29    euthanasia or aided suicide; [or]
30(3)   permit any affirmative or deliberate act or omission
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1    to end life other than as defined in this chapter[.]; or
2(4)   affect other law of this Commonwealth governing
3    treatment for mental illness of an individual involuntarily
4    committed to a facility, including under the act of July 9,
5    1976 (P.L.817, No.143), known as the Mental Health Procedures
6    Act.
7    (b)    Presumption not created.--This chapter does not create
8 any presumption regarding the intent of an individual who has
9 not executed an advance health care directive [to consent to the
10 use or withholding of life-sustaining treatment in the event of
11 an end-stage medical condition or in the event the individual is
12 permanently unconscious].
13    (c)    Findings in general.--The General Assembly finds that:
14(1)   Individuals have a qualified right to make decisions
15    relating to their own health care.
16(2)   This right is subject to certain interests of
17    society, such as the maintenance of ethical standards in the
18    medical profession and the preservation and protection of
19    human life.
20(3)   Modern medical technological procedures make
21    possible the prolongation of human life beyond natural
22    limits.
23(4)   The application of some procedures to an individual
24    suffering a difficult and uncomfortable process of dying may
25    cause loss of dignity and secure only continuation of a
26    precarious and burdensome prolongation of life.
27(5)   It is in the best interest of individuals under the
28    care of health care [providers] professionals if health care
29    [providers] professionals initiate discussions with them
30    regarding [living wills and health care powers of attorney]
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1    advance health care directives during initial consultations,
2    annual examinations, at diagnosis of a chronic illness or
3    when an individual under their care transfers from one health
4    care setting to another so that the individuals under their
5    care may make known their wishes to receive, continue,
6    discontinue or refuse medical treatment in the event that
7    they are [diagnosed with an end-stage medical condition or
8    become permanently unconscious.] no longer able to make
9    medical decisions for themselves.
10(6)   Health care [providers] professionals should
11    initiate such discussions[, including discussion of out-of-
12    hospital do-not-resuscitate orders,] with individuals under
13    their care at the time of determination of an end-stage
14    medical condition and should document such discussion in the
15    individual's medical record.
16 § 5424.    [Compliance] Refusal to comply.
17    (a)    Notification by [attending physician] responsible health
18 care professional or health care [provider] institution.--[If an
19 attending physician or other health care provider cannot in good
20 conscience comply with a living will or health care decision of
21 a health care agent or health care representative or if the
22 policies of a health care provider preclude compliance with a
23 living will or health care decision of a health care agent or
24 health care representative, the attending physician or health
25 care provider shall so inform the principal if the principal is
26 competent or the principal's health care agent or health care
27 representative if the principal is incompetent.] A health care
28 professional or health care institution may refuse to provide
29 health care consistent with a health care instruction or health
30 care decision if:
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1(1)   the instruction or decision is contrary to a policy
2    of the health care institution providing care to the
3    individual that is based expressly on reasons of conscience
4    and the policy was timely communicated to the individual or
5    to the individual's surrogate;
6(2)   the care would require health care that is not
7    available to the professional or institution; or
8(3)   compliance with the instruction or decision would:
9(i)    require the professional to provide care that is
10contrary to the professional's religious belief or moral
11conviction if other law permits the professional to
12refuse to provide care for that reason;
13(ii)    require the professional or institution to
14provide care that is contrary to generally accepted
15health care standards applicable to the professional or
16institution; or
17(iii)    violate a court order or other law.
18    (b)   Transfer.--[The attending physician or health care
19 provider under subsection (a) shall make every reasonable effort
20 to assist in the transfer of the principal to another physician
21 or health care provider who will comply with the living will or
22 health care decision of the health care agent or health care
23 representative.] A health care professional or health care
24 institution that refuses to provide care under subsection (a)
25 shall:
26(1)   as soon as reasonably feasible, inform the
27    individual, if possible, and the individual's surrogate of
28    the refusal;
29(2)   immediately make a reasonable effort to transfer the
30    individual to another health care professional or health care
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1    institution that is willing to comply with the instruction or
2    decision; and
3(3)   either:
4(i)    if care is refused under subsection (a)(1) or
5(2), provide life-sustaining care and care needed to keep
6or make the individual comfortable, consistent with
7accepted medical standards to the extent feasible, until
8a transfer is made; or
9(ii)    if care is refused under subsection (a)(3),
10provide life-sustaining care and care needed to keep or
11make the individual comfortable, consistent with accepted
12medical standards, until a transfer is made or, if the
13professional or institution reasonably believes that a
14transfer cannot be made, for at least 10 days after the
15refusal.
16    (c)   Employee or staff member of health care [provider]
17 institution.--
18(1)   An employee or a staff member of a health care
19    [provider] institution may not be required to participate in
20    the withholding or withdrawal of life-sustaining treatment.
21(2)   A health care [provider] institution that is an
22    employer may not discharge or in any other manner
23    discriminate against [its] an employee or staff member as a
24    result of informing the employer of the employee's choice not
25    to participate in the withholding or withdrawal of life-
26    sustaining treatment.
27(3)   A health care [provider] institution that is an
28    employer may require [its] an employee or staff member to
29    express in [writing] a record the wishes or unwillingness of
30    the employee or staff member as set forth in this subsection.
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1    (d)    Liability.--If transfer under subsection (b) is
2 impossible, the provision of life-sustaining treatment to [a
3 principal may not subject an attending physician] the individual
4 may not subject a responsible health care professional or a
5 health care [provider] institution to criminal or civil
6 liability or administrative sanction for failure to carry out
7 either the provisions of [a living will] an advance health care
8 directive or a health care decision of a health care agent or
9 [health care representative] default surrogate.
10 § 5425.   Conflicting advance health care directives.
11    (a)    Conflicting directives.--If a provision of an advance
12 health care directive conflicts with a provision of another
13 advance health care directive, the provision of the instrument
14 latest in date of execution shall prevail to the extent of the
15 conflict unless the instruments expressly provide otherwise.
16    (b)    Conflict between mental health care and other
17 directives.--If a direction in an advance mental health care
18 directive of an individual conflicts with a direction in another
19 advance health care directive of the individual, the later
20 direction revokes the earlier direction to the extent of the
21 conflict.
22    (c)    Advance health care directive not revoked.--An
23 appointment of a health care agent to make decisions only for
24 mental health care for an individual does not revoke an earlier
25 appointment of a health care agent to make other health care
26 decisions for the individual. A later appointment revokes the
27 authority of a health care agent under the earlier appointment
28 to make decisions about mental health care unless otherwise
29 specified in the power of attorney making the later appointment.
30    (d)    Advance mental health care directive not revoked.--An
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1 appointment of a health care agent to make health care decisions
2 for an individual other than decisions about mental health care
3 made after appointment of a health care agent authorized to make
4 only mental health care decisions does not revoke the
5 appointment of a health care agent authorized to make only
6 mental health care decisions.
7 § 5427.    Life insurance.
8    The making of or failure to make an advance health care
9 directive, to request an order or to designate or disqualify a
10 [health care representative] health care agent or default
11 surrogate in accordance with this chapter shall not affect in
12 any manner the sale, procurement or issuance of a policy of life
13 insurance, nor shall it be deemed to modify the terms of an
14 existing policy of life insurance. No policy of life insurance
15 shall be legally impaired or invalidated in any manner by the
16 withholding or withdrawal of life-sustaining treatment from an
17 insured individual, notwithstanding a term of the policy to the
18 contrary.
19 § 5428.    Health care instruments optional.
20    A health care [provider] institution, a health care service
21 plan, a health maintenance organization, an insurer issuing
22 disability insurance, a self-insured employee welfare benefit
23 plan, a nonprofit hospital plan and a Federal, State or local
24 government sponsored or operated program may not:
25(1)   Require an individual to execute an advance health
26    care directive or order or to designate or disqualify a
27    [health care representative] health care agent or default
28    surrogate as a condition for being insured for or receiving
29    health care services.
30(2)   Charge an individual a different rate or fee whether
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1    or not the individual executes or has executed an advance
2    health care directive or order or designated or disqualified
3    a [health care representative] health care agent or default
4    surrogate.
5 § 5429.    Pregnancy.
6    (a)    [Living wills] Health care instruction and health care
7 decisions.--Notwithstanding the existence of a [living will]
8 health care instruction, a health care decision by a [health
9 care representative] default surrogate or health care agent or
10 any other direction to the contrary, life-sustaining treatment,
11 nutrition and hydration shall be provided to a pregnant woman
12 who [is incompetent] lacks capacity and has an end-stage medical
13 condition or who is permanently unconscious unless, to a
14 reasonable degree of medical certainty as certified on the
15 pregnant woman's medical record by the pregnant woman's
16 [attending physician] responsible health care professional and
17 an obstetrician who has examined the pregnant woman, life-
18 sustaining treatment, nutrition and hydration:
19(1)   will not maintain the pregnant woman in such a way
20    as to permit the continuing development and live birth of the
21    unborn child;
22(2)   will be physically harmful to the pregnant woman; or
23(3)   will cause pain to the pregnant woman that cannot be
24    alleviated by medication.
25    (b)    Rule for orders.--Notwithstanding the existence of an
26 order or direction to the contrary, life-sustaining treatment,
27 cardiopulmonary resuscitation, nutrition and hydration shall be
28 provided to a pregnant patient unless, to a reasonable degree of
29 medical certainty as certified on the pregnant patient's medical
30 record by the [attending physician] responsible health care
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1 professional and an obstetrician who has examined the pregnant
2 patient, life-sustaining treatment, nutrition and hydration:
3(1)   will not maintain the pregnant patient in such a way
4    as to permit the continuing development and live birth of the
5    unborn child;
6(2)   will be physically harmful to the pregnant patient;
7    or
8(3)   would cause pain to the pregnant patient that cannot
9    be alleviated by medication.
10    (c)    Pregnancy test.--Nothing in this chapter shall require a
11 physician to perform a pregnancy test unless the physician has
12 reason to believe that the woman may be pregnant.
13    (d)    Payment of expenses by Commonwealth.--
14(1)   In the event that treatment, cardiopulmonary
15    resuscitation, nutrition and hydration are provided to a
16    pregnant woman, notwithstanding the existence of a [living
17    will] health care instruction, health care decision by a
18    [health care representative] default surrogate or health care
19    agent, order or direction to the contrary, the Commonwealth
20    shall pay all usual, customary and reasonable expenses
21    directly, indirectly and actually incurred by the pregnant
22    woman to whom such treatment, cardiopulmonary resuscitation,
23    nutrition and hydration are provided.
24(2)   The Commonwealth shall have the right of subrogation
25    against all moneys paid by any third-party health insurer on
26    behalf of the pregnant woman.
27(3)   The expenditures incurred on behalf of the pregnant
28    woman constitute a grant, and a lien may not be placed upon
29    the property of the pregnant woman, her estate or her heirs.
30 § 5431.    Liability.
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1    (a)   General rule.--A health care [provider or another
2 person] institution or health care professional may not be
3 subject to criminal or civil liability, discipline for
4 unprofessional conduct or administrative sanctions and may not
5 be found to have committed an act of unprofessional conduct as a
6 result of any of the following:
7(1)   Causing or participating in the initiating,
8    continuing, withholding or withdrawal of life-sustaining
9    treatment or cardiopulmonary resuscitation from [a patient or
10    principal] an individual, if the health care [provider]
11    institution or health care professional believes in good
12    faith that [he] the health care institution or health care
13    professional has followed the [patient's or principal's]
14    individual's wishes as expressed in [a living will, order] an
15    advance health care directive or revocation made under this
16    chapter.
17(2)   Complying with a direction or decision of an
18    individual who the health care [provider] institution or
19    health care professional believes in good faith has authority
20    to act as [a principal's] an individual's health care agent
21    or [health care representative] default surrogate so long as
22    the direction or decision is not clearly contrary to the
23    terms of an advance health care directive that has been
24    delivered to the [provider] institution or professional.
25(3)   Refusing to comply with a direction or decision of
26    an individual based on a good faith belief that the
27    individual lacks authority to act as [a principal's] another
28    individual's health care agent or [health care
29    representative] default surrogate or is not acting in
30    accordance with section 5456(c) (relating to duties and
20260HB2701PN3772  - 19 -
1  authority of health care agent) or 5461(c) (relating to
2  decisions by [health care representative] default surrogate).
3      (4)   Complying with an advance health care directive
4  under the assumption that it was valid when made and the
5  health care [provider] institution or health care
6  professional believes in good faith that it has not been
7  amended or revoked.
8      (5)   Disclosing health care information to another person
9  based upon a good faith belief that the disclosure is
10  authorized, permitted or required by this chapter.
11      (6)   Refusing to comply with a direction or decision of
12  an individual based on a good faith belief that compliance
13  with the direction or decision would be unethical or, to a
14  reasonable degree of medical certainty, would result in
15  medical care having no medical basis in addressing any
16  medical need or condition of the individual, provided that
17  the health care [provider] institution or health care
18  professional complies in good faith with sections 5424
19  (relating to [compliance] refusal to comply) and 5462(c)
20  (relating to duties of [attending physician] responsible
21  health care professional and health care [provider]
22  institution).
23      (7)   Refusing to comply with an advance health care
24  directive based on a reasonable belief that the directive is
25  not valid, including a reasonable belief that the directive
26  was not made by the individual or, after its creation, was
27  substantively altered by a person other than the individual
28  who created it.
29      (8)   Determining that an individual who otherwise might
30  be authorized to act as a health care agent or default
20260HB2701PN3772  - 20 -
1    surrogate is not reasonably available.
2(9)    Complying with an individual's direction under
3    section 5451.1(d) (relating to advance mental health care
4    directive).
5    (b)    Same effect as if dealing with [principal.--Any health
6 care provider and other] individual.--A person acting under
7 subsection (a) is protected and released to the same extent as
8 if dealing directly with [a competent principal] an individual
9 who has capacity.
10    (c)    Health care agent.--No health care agent or default
11 surrogate acting according to the terms of [a health care power
12 of attorney] an advance health care directive shall be subject
13 to civil or criminal liability for acting in good faith for [a
14 principal] the individual who created the directive or failing
15 in good faith to act for [a principal] the individual.
16    [(d)     Health care representative.--No health care
17 representative who in good faith acts or fails in good faith to
18 act for the principal shall be subject to civil or criminal
19 liability for the action or failure to act.]
20    Section 2.  Title 20 is amended by adding sections to read:
21 § 5433.1.       Prohibited conduct; damages.
22    (a)    Prohibitions.--A person may not:
23(1)    intentionally falsify, in whole or in part, an
24    advance health care directive;
25(2)    for the purpose of frustrating the intent of the
26    individual who created an advance health care directive or
27    with knowledge that doing so is likely to frustrate the
28    intent:
29(i)    intentionally conceal, deface, obliterate or
30delete the directive or a revocation of the directive
20260HB2701PN3772  - 21 -
1without consent of the individual who created or revoked
2the directive; or
3(ii)   intentionally withhold knowledge of the
4existence or revocation of the directive from a
5responsible health care professional or health care
6institution providing health care to the individual who
7created or revoked the directive;
8(3)   coerce or fraudulently induce an individual to
9    create, revoke or refrain from creating or revoking an
10    advance health care directive or a part of a directive; or
11(4)   require or prohibit the creation or revocation of an
12    advance health care directive as a condition for providing
13    health care.
14    (b)     Cause of action generally.--An individual who is the
15 subject of conduct prohibited under subsection (a), or the
16 individual's estate, has a cause of action against a person that
17 violates subsection (a) for statutory damages of $25,000 or
18 actual damages resulting from the violation, whichever is
19 greater.
20    (c)     Cause of action for intentional violations.--Subject to
21 subsection (d), an individual who makes a health care
22 instruction, or the individual's estate, has a cause of action
23 against a health care professional or health care institution
24 that intentionally violates section 5462(b), (d) or (e)
25 (relating to duties of attending physician and health care
26 provider) for statutory damages of $50,000 or actual damages
27 resulting from the violation, whichever is greater.
28    (d)     Emergency services excepted.--A health care professional
29 who is an emergency medical services provider is not liable
30 under subsection (c) for a violation of section 5462(d) if:
20260HB2701PN3772  - 22 -
1(1)    the violation occurs in the course of providing care
2    to an individual experiencing a health condition for which
3    the professional reasonably believes the care was appropriate
4    to avoid imminent loss of life or serious harm to the
5    individual;
6(2)    the failure to comply is consistent with accepted
7    standards of the profession of the professional; and
8(3)    the provision of care does not begin in a health
9    care institution in which the individual resides or was
10    receiving care.
11    (e)   Fees and costs.--In an action under this section, a
12 prevailing plaintiff may recover reasonable attorney's fees,
13 court costs and other reasonable litigation expenses.
14    (f)   Other actions.--A cause of action or remedy under this
15 section is in addition to any cause of action or remedy under
16 other law.
17 § 5433.2.      Judicial relief.
18    (a)   Petition.--On petition of an individual, the
19 individual's surrogate, a health care professional or health
20 care institution providing health care to the individual or a
21 person interested in the welfare of the individual, the court
22 may:
23(1)    enjoin implementation of a health care decision made
24    by a health care agent or default surrogate on behalf of the
25    individual, on a finding that the decision is inconsistent
26    with section 5456 (relating to duties and authority of health
27    care agent);
28(2)    enjoin a health care agent from making a health care
29    decision for the individual, on a finding that the
30    individual's appointment of the agent has been revoked or the
20260HB2701PN3772  - 23 -
1    agent:
2(i)    is disqualified under section 5455(b) (relating
3to appointment of health care agents);
4(ii)    is unwilling or unable to comply with section
55456; or
6(iii)    poses a danger to the individual's well-being;
7(3)   enjoin another individual from acting as a default
8    surrogate, on a finding that the other individual acting as a
9    default surrogate did not comply with section 5461 (relating
10    to decisions by default surrogate) or the other individual:
11(i)    is disqualified under section 5461(e);
12(ii)    is unwilling or unable to comply with section
135456; or
14(iii)    poses a danger to the first individual's well-
15being; or
16(4)   order implementation of a health care decision made:
17(i)    by and for the individual; or
18(ii)    by a health care agent or default surrogate who
19is acting in compliance with the powers and duties of the
20agent or default surrogate.
21    (b)    No danger.--For the purposes of this chapter, advocacy
22 for the withholding or withdrawal of health care or mental
23 health care from an individual is not itself evidence that an
24 agent or default surrogate, or a potential agent or default
25 surrogate, poses a danger to the individual's well-being.
26    (c)    Expedited proceedings.--A proceeding under this section
27 is governed by the Rules of Civil Procedure governing expedited
28 proceedings and proceedings affecting persons found or alleged
29 to lack capacity.
30 § 5435.    Implementation; savings provision; transitional
20260HB2701PN3772  - 24 -
1provision.
2    (a)    Implementation.--An advance health care directive
3 created before, on or after the effective date of this
4 subsection must be interpreted in accordance with the laws of
5 this Commonwealth, excluding the Commonwealth's choice-of-law
6 rules, at the time the directive is implemented.
7    (b)    Created prior.--An advance health care directive created
8 before the effective date of this subsection is valid if it
9 complies with this chapter or complied at the time of creation
10 with the law of the state in which it was created.
11    (c)    Validity not affected.--This chapter does not affect the
12 validity or effect of an act done before the effective date of
13 this subsection.
14    (d)    Existing surrogate.--An individual who assumed authority
15 to act as default surrogate before the effective date of this
16 subsection may continue to act as default surrogate until the
17 individual for whom the default surrogate is acting has capacity
18 or the default surrogate is disqualified, whichever occurs
19 first.
20    (e)    Transitional provision.--This chapter applies to an
21 advance health care directive created before, on or after the
22 effective date of this subsection.
23 § 5436.   Uniformity of application and construction.
24    In applying and construing this chapter, consideration shall
25 be given to the need to promote uniformity of the law with
26 respect to the subject matter among states that enact it.
27    Section 3.   Subchapter B of Chapter 54 of Title 20 is
28 repealed:
29[SUBCHAPTER B
30LIVING WILLS
20260HB2701PN3772  - 25 -
1 § 5441.    Short title of subchapter.
2    This subchapter shall be known and may be cited as the Living
3 Will Act.
4 § 5442.    Execution.
5    (a)    Who may make.--An individual of sound mind may make a
6 living will governing the initiation, continuation, withholding
7 or withdrawal of life-sustaining treatment if the individual:
8(1)   is 18 years of age or older;
9(2)   has graduated from high school;
10(3)   has married; or
11(4)   is an emancipated minor.
12    (b)    Requirements.--A living will shall be:
13(1)   dated and signed by the principal by signature or
14    mark or by another individual on behalf of and at the
15    direction of the principal if the principal is unable to sign
16    but specifically directs another individual to sign the
17    living will; and
18(2)   witnessed by two individuals, each of whom is 18
19    years of age or older.
20    (c)    Witnesses.--
21(1)   An individual who signs a living will on behalf of
22    and at the direction of a principal may not witness the
23    living will.
24(2)   A health care provider and its agent may not sign a
25    living will on behalf of and at the direction of a principal
26    if the health care provider or agent provides health care
27    services to the principal.
28 § 5443.    When living will operative.
29    (a)    When operative.--A living will becomes operative when:
30(1)   a copy is provided to the attending physician; and
20260HB2701PN3772  - 26 -
1(2)   the principal is determined by the attending
2    physician to be incompetent and to have an end-stage medical
3    condition or to be permanently unconscious.
4    (b)   Compliance.--When a living will becomes operative, the
5 attending physician and other health care providers shall act in
6 accordance with its provisions or comply with the transfer
7 provisions of section 5424 (relating to compliance).
8    (c)   Invalidity of specific direction.--If a specific
9 direction in a living will is held to be invalid, the invalidity
10 does not negate other directions in the living will that can be
11 effected without the invalid direction.
12    (d)   Medical record.--Any health care provider to whom a copy
13 of a living will is furnished shall make it a part of the
14 medical record of the principal and, if unwilling to comply with
15 the living will, promptly so advise the principal or the
16 principal's health care agent or representative.
17    (e)   Duration.--Unless a living will states a time of
18 termination, it is valid until revoked by the principal,
19 notwithstanding the lapse of time since its execution.
20    (f)   Absence of living will.--If an individual does not make
21 a living will, a presumption does not arise regarding the intent
22 of the individual to consent to or to refuse the initiation,
23 continuation, withholding or withdrawal of life-sustaining
24 treatment.
25    (g)   Duty of physician to certify end-stage medical
26 condition.--Promptly after a determination that the principal
27 has an end-stage medical condition or is permanently
28 unconscious, the attending physician shall certify in writing
29 that the principal has an end-stage medical condition or is
30 permanently unconscious.
20260HB2701PN3772  - 27 -
1 § 5444.   Revocation.
2    (a)    When living will may be revoked.--A living will may be
3 revoked at any time and in any manner by the principal
4 regardless of the mental or physical condition of the principal.
5    (b)    Effect of revocation.--A revocation is effective upon
6 communication to the attending physician or other health care
7 provider by the principal or a witness to the revocation.
8    (c)    Medical record.--The attending physician or other health
9 care provider shall make the revocation part of the medical
10 record of the principal.
11 § 5445.   Emergency medical services.
12    (a)    General rule.--An emergency medical services provider
13 shall, in the course of providing care to a principal, at all
14 times comply with the instructions of an authorized medical
15 command physician to withhold or discontinue cardiopulmonary
16 resuscitation for a principal whose living will has become
17 operative under section 5443(a) (relating to when living will
18 operative).
19    (b)    Applicability.--This section is applicable only in those
20 instances where an out-of-hospital DNR order is not in effect
21 under section 5484 (relating to orders, bracelets and
22 necklaces).
23 § 5446.   Validity.
24    (a)    Living will executed prior to effective date of
25 subchapter.--This subchapter does not limit the validity of a
26 living will executed prior to the effective date of this
27 subchapter.
28    (b)    Living will executed in another state or jurisdiction.--
29 A living will executed in another state or jurisdiction and in
30 conformity with the laws of that state or jurisdiction shall be
20260HB2701PN3772  - 28 -
1 considered valid in this Commonwealth, except to the extent that
2 the living will executed in another state or jurisdiction would
3 allow a principal to direct procedures inconsistent with the
4 laws of this Commonwealth.
5 § 5447.   Form.
6    A living will may be in any written form expressing the
7 wishes of a principal regarding the initiation, continuation,
8 withholding or withdrawal of life-sustaining treatment and may
9 include other specific directions, including, but not limited
10 to, designation of a health care agent to make health care
11 decisions for the principal if the principal is determined to be
12 incompetent and to have an end-stage medical condition or is
13 permanently unconscious. An example of a living will appears in
14 the combined form set forth in Subchapter D (relating to
15 combined form).]
16    Section 4.     Chapter 54 of Title 20 is amended by adding a
17 subchapter to read:
18SUBCHAPTER C.1
19HEALTH CARE DECISIONS AND
20ADVANCE HEALTH CARE DIRECTIVES
21 Sec.
22 5448.1. (Reserved).
23 5448.2. (Reserved).
24 5448.3. Capacity.
25 5448.4. Presumption of capacity; overcoming presumption.
26 5448.5. Notice of finding of lack of capacity; right to object.
27 5448.6. Judicial review of finding of lack of capacity.
28 5448.7. Health care instruction.
29 § 5448.1.   (Reserved).
30 § 5448.2.   (Reserved).
20260HB2701PN3772  - 29 -
1 § 5448.3.      Capacity.
2    (a)   Capacity.--An individual has capacity for the purpose of
3 this subchapter if the individual:
4(1)    is willing and able to communicate a decision
5    independently or with appropriate services, technological
6    assistance, supported decision making or other reasonable
7    accommodation; and
8(2)    in making or revoking:
9(i)    a health care decision, understands the nature
10and consequences of the decision, including the primary
11risks and benefits of the decision;
12(ii)    a health care instruction, understands the
13nature and consequences of the instruction, including the
14primary risks and benefits of the choices expressed in
15the instruction; and
16(iii)    an appointment of a health care agent under a
17health care power of attorney or identification of a
18default surrogate under section 5461(d)(1.1)(i) (relating
19to decisions by default surrogate), recognizes the
20identity of the individual being appointed or identified
21and understands the general nature of the relationship of
22the individual making the appointment or identification
23with the individual being appointed or identified.
24    (b)   Rights.--The right of an individual who has capacity to
25 make a decision about the individual's health care is not
26 affected by whether the individual creates or revokes an advance
27 health care directive.
28 § 5448.4.      Presumption of capacity; overcoming presumption.
29    (a)   Presumption of capacity.--An individual is presumed to
30 have capacity to make or revoke a health care decision, health
20260HB2701PN3772  - 30 -
1 care instruction and power of attorney for health care unless:
2(1)   a court has found the individual lacks capacity to
3    do so; or
4(2)   the presumption is rebutted under subsection (b).
5    (b)   Overcoming presumption.--Subject to sections 5448.5
6 (relating to notice of finding of lack of capacity; right to
7 object) and 5448.6 (relating to judicial review of finding of
8 lack of capacity), a presumption under subsection (a) may be
9 rebutted by a finding that the individual lacks capacity:
10(1)   subject to subsection (c), made on the basis of a
11    contemporaneous examination by any of the following:
12(i)    a physician;
13(ii)    a psychologist licensed or otherwise authorized
14to practice in this Commonwealth;
15(iii)    an individual with training and expertise in
16the finding of lack of capacity who is licensed or
17otherwise authorized to practice in this Commonwealth as:
18(A)   a physician assistant;
19(B)   a certified registered nurse practitioner;
20or
21(C)   a social worker; or
22(iv)    a responsible health care professional not
23described in subparagraph (i), (ii) or (iii) if:
24(A)   the individual about whom the finding is to
25be made is experiencing a health condition requiring
26a decision regarding health care treatment to be made
27promptly to avoid loss of life or serious harm to the
28health of the individual; and
29(B)   an individual listed in subparagraph (i),
30(ii) or (iii) is not reasonably available;
20260HB2701PN3772  - 31 -
1(2)    made in accordance with accepted standards of the
2    profession and the scope of practice of the individual making
3    the finding and to a reasonable degree of certainty; and
4(3)    documented in a record signed by the individual
5    making the finding that includes an opinion of the cause,
6    nature, extent and probable duration of the lack of capacity.
7    (c)     Prohibition.--The finding under subsection (b) may not
8 be made by:
9(1)    a family member of the individual presumed to have
10    capacity;
11(2)    the cohabitant of the individual or a descendant of
12    the cohabitant; or
13(3)    the individual's surrogate, a family member of the
14    surrogate or a descendant of the surrogate.
15    (d)     Presumption.--If the finding under subsection (b) was
16 based on a condition the individual no longer has or a
17 responsible health care professional subsequently has good cause
18 to believe the individual has capacity, the individual is
19 presumed to have capacity unless a court finds the individual
20 lacks capacity or the presumption is rebutted under subsection
21 (b).
22 § 5448.5.      Notice of finding of lack of capacity; right to
23object.
24    (a)     Notification.--As soon as reasonably feasible, an
25 individual who makes a finding under section 5448.4(b) (relating
26 to presumption of capacity; overcoming presumption) shall inform
27 the individual about whom the finding was made or the
28 individual's responsible health care professional of the
29 finding.
30    (b)     Notification by health care professional.--As soon as
20260HB2701PN3772  - 32 -
1 reasonably feasible, a responsible health care professional who
2 is informed of a finding under section 5448.4(b) shall inform
3 the individual about whom the finding was made and the
4 individual's surrogate.
5    (c)    Objection to determination.--An individual found under
6 section 5448.4(b) to lack capacity may object to the finding:
7(1)   by orally informing a responsible health care
8    professional;
9(2)   in a record provided to a responsible health care
10    professional or the health care institution in which the
11    individual resides or is receiving care; or
12(3)   by another act that clearly indicates the
13    individual's objection.
14    (d)    Effect of objection.--If the individual objects under
15 subsection (c), the finding under section 5448.4(b) is not
16 sufficient to rebut a presumption of capacity in section
17 5448.4(a) and the individual must be treated as having capacity
18 unless:
19(1)   the individual withdraws the objection;
20(2)   a court finds the individual lacks the presumed
21    capacity;
22(3)   the individual is experiencing a health condition
23    requiring a decision regarding health care treatment to be
24    made promptly to avoid imminent loss of life or serious harm
25    to the health of the individual; or
26(4)   subject to subsection (e), the finding is confirmed
27    by a second finding made by an individual authorized under
28    section 5448.4(b)(1) who:
29(i)    did not make the first finding;
30(ii)    is not a family member of the individual who
20260HB2701PN3772  - 33 -
1made the first finding; and
2(iii)   is not the cohabitant of the individual who
3made the first finding or a descendant of the cohabitant.
4    (e)   Second finding.--A second finding that the individual
5 lacks capacity under subsection (d)(4) is not sufficient to
6 rebut the presumption of capacity if the individual is
7 requesting the provision or continuation of life-sustaining
8 treatment and the finding is being used to make a decision to
9 withhold or withdraw the treatment.
10    (f)   Duties of health care professional.--As soon as
11 reasonably feasible, a health care professional who is informed
12 of an objection under subsection (c) shall:
13(1)    communicate the objection to a responsible health
14    care professional; and
15(2)    document the objection and the date of the objection
16    in the individual's medical record or communicate the
17    objection and the date of the objection to an administrator
18    with responsibility for medical records of the health care
19    institution providing health care to the individual, who
20    shall document the objection and the date of the objection in
21    the individual's medical record.
22 § 5448.6.      Judicial review of finding of lack of capacity.
23    (a)   Petition.--An individual found under section 5448.4(b)
24 (relating to presumption of capacity; overcoming presumption) to
25 lack capacity, a responsible health care professional, the
26 health care institution providing health care to the individual
27 or a person interested in the welfare of the individual may
28 petition the court in the county in which the individual resides
29 or is located to determine whether the individual lacks
30 capacity.
20260HB2701PN3772  - 34 -
1    (b)   Appointment of legal counsel.--The court in which a
2 petition under subsection (a) is filed shall appoint legal
3 counsel to represent the individual if the individual does not
4 have legal counsel. The court shall hear the petition as soon as
5 possible, but no later than seven days after the petition is
6 filed. As soon as possible, but no later than seven days after
7 the hearing, the court shall determine whether the individual
8 lacks capacity. The court may determine the individual lacks
9 capacity only if the court finds by clear and convincing
10 evidence that the individual lacks capacity.
11 § 5448.7.      Health care instruction.
12    (a)   Authorization.--An individual may create a health care
13 instruction that expresses the individual's preferences for
14 future health care, including preferences regarding:
15(1)    health care professionals or health care
16    institutions;
17(2)    how a health care decision will be made and
18    communicated;
19(3)    persons that should or should not be consulted
20    regarding a health care decision;
21(4)    a person to serve as guardian for the individual if
22    one is appointed; and
23(5)    an individual to serve as a default surrogate.
24    (b)   Duty to document instructions.--A health care
25 professional to whom an individual communicates or provides an
26 instruction under subsection (a) shall document the instruction
27 and the date of the instruction in the individual's medical
28 record or communicate the instruction and date of the
29 instruction to an administrator with responsibility for medical
30 records of the health care institution providing health care to
20260HB2701PN3772  - 35 -
1 the individual, who shall document the instruction and the date
2 of the instruction in the individual's medical record.
3    (c)   Revocation.--A health care instruction made by an
4 individual that conflicts with an earlier health care
5 instruction made by the individual, including an instruction
6 documented in a medical order, revokes the earlier instruction
7 to the extent of the conflict.
8    (d)   Records.--A health care instruction may be in the same
9 record as a power of attorney for health care.
10    (e)   When health care instruction operative.--A health care
11 instruction becomes operative when:
12(1)   it has been communicated to a health care
13    professional; and
14(2)   the individual creating the instruction is
15    determined to lack capacity under this subchapter.
16    (f)   Compliance.--When a health care instruction becomes
17 operative, health care professionals shall act in accordance
18 with its provisions or comply with the transfer provisions of
19 section 5424 (relating to refusal to comply).
20    (g)   Invalidity of specific direction.--If a specific
21 direction in a health care instruction is held to be invalid,
22 the invalidity does not negate other directions in the health
23 care instruction that can be effected without the invalid
24 direction.
25    (h)   Medical record.--Any health care professional to whom a
26 health care instruction is communicated shall make it a part of
27 the medical record of the individual who created the instruction
28 and, if unwilling to comply with the health care instruction,
29 promptly so advise the individual or the individual's surrogate.
30    (i)   Duration.--Unless a health care instruction states a
20260HB2701PN3772  - 36 -
1 time of termination, it is valid until revoked by the individual
2 who created it, notwithstanding the lapse of time since its
3 creation.
4    (j)    Absence of health care instruction.--If an individual
5 does not make a health care instruction, a presumption does not
6 arise regarding the intent of the individual to consent to or to
7 refuse the initiation, continuation, withholding or withdrawal
8 of life-sustaining treatment.
9    Section 5.  Subchapter C heading of Chapter 54 and section
10 5451 of Title 20 are repealed:
11[SUBCHAPTER C
12HEALTH CARE AGENTS AND REPRESENTATIVES
13 § 5451.    Short title of subchapter.
14    This subchapter shall be known and may be cited as the Health
15 Care Agents and Representatives Act.]
16    Section 6.  Title 20 is amended by adding a section to read:
17 § 5451.1.       Advance mental health care directive.
18    (a)    Authorization.--An individual may create an advance
19 health care directive that addresses only mental health care for
20 the individual. The directive may include a health care
21 instruction, a power of attorney for health care, or both.
22    (b)    Elements.--A health care instruction under this section
23 may include the individual's:
24(1)    general philosophy and objectives regarding mental
25    health care; and
26(2)    specific goals, preferences and wishes regarding the
27    provision, withholding or withdrawal of a form of mental
28    health care, including:
29(i)    preferences regarding professionals, programs
30and facilities;
20260HB2701PN3772  - 37 -
1(ii)    admission to a mental health facility,
2including duration of admission;
3(iii)    preferences regarding medications;
4(iv)    refusal to accept a specific type of mental
5health care, including a medication; and
6(v)    preferences regarding crisis intervention.
7    (c)   Appointment of health care agent.--A power of attorney
8 for health care under this section may appoint a health care
9 agent to make decisions only for mental health care.
10    (d)   Irrevocable.--An individual may direct in an advance
11 mental health care directive that, if the individual is
12 experiencing a psychiatric or psychological event specified in
13 the directive, the individual may not revoke the directive or a
14 part of the directive.
15    (e)   Requirements.--If an advance mental health care
16 directive includes a direction under subsection (d), the advance
17 mental health care directive must be in a record that is
18 separate from any other advance health care directive created by
19 the individual and signed by the individual creating the advance
20 mental health care directive and at least two adult witnesses
21 who:
22(1)   attest that to the best of their knowledge the
23    individual:
24(i)    understood the nature and consequences of the
25direction, including its risks and benefits; and
26(ii)    made the direction voluntarily and without
27coercion or undue influence;
28(2)   are not:
29(i)    the health care agent appointed by the
30individual;
20260HB2701PN3772  - 38 -
1(ii)    the health care agent's spouse or cohabitant;
2and
3(iii)   if the individual resides in a long-term care
4facility, the owner, operator, employee or contractor of
5the long-term care facility; and
6(3)   are physically present in the same location as the
7    individual.
8    Section 7.      Sections 5452, 5453, 5454, 5455, 5456, 5457,
9 5458, 5459, 5460, 5461, 5462, 5463, 5464 and 5465 of Title 20
10 are amended to read:
11 § 5452.    [Execution] Health care power of attorney.
12    [(a)    Who may make.--An individual of sound mind may make a
13 health care power of attorney if the individual:
14(1)   is 18 years of age or older;
15(2)   has graduated from high school;
16(3)   has married; or
17(4)   is an emancipated minor.
18    (b)    Requirements.--A health care power of attorney must be:
19(1)   dated and signed by the principal by signature or
20    mark or by another individual on behalf of and at the
21    direction of the principal if the principal is unable to sign
22    but specifically directs another individual to sign the
23    health care power of attorney; and
24(2)   witnessed by two individuals, each of whom is 18
25    years of age or older.
26    (c)    Witnesses.--
27(1)   An individual who signs a health care power of
28    attorney on behalf of and at the direction of a principal may
29    not witness the health care power of attorney.
30(2)   A health care provider and its agent may not sign a
20260HB2701PN3772  - 39 -
1    health care power of attorney on behalf of and at the
2    direction of a principal if the health care provider or agent
3    provides health care services to the principal.]
4    (a)   Authorization.--An individual may create a power of
5 attorney for health care to appoint a health care agent to make
6 health care decisions for the individual.
7    (b)   Form.--A power of attorney for health care must be in a
8 record, signed by the individual creating the power and signed
9 by an adult witness who:
10(1)   reasonably believes the act of the individual to
11    create the power of attorney is voluntary and knowing;
12(2)   is not:
13(i)    the health care agent appointed by the
14individual;
15(ii)    the health care agent's spouse or cohabitant;
16or
17(iii)    if the individual resides or is receiving care
18in a long-term care facility, the owner, operator,
19employee or contractor of the long-term care facility;
20and
21(3)   is present when the individual signs the power of
22    attorney or when the individual represents that the power of
23    attorney reflects the individual's wishes.
24    (c)   Presence.--A witness under subsection (b) is considered
25 present if the witness and the individual are:
26(1)   physically present in the same location;
27(2)   using electronic means that allow for audio and
28    visual transmission and communication in real time to the
29    same extent as if the witness and the individual were
30    physically present in the same location; or
20260HB2701PN3772  - 40 -
1(3)   able to speak to and hear each other in real time
2    through audio connection if:
3(i)    the identity of the individual is personally
4known to the witness; or
5(ii)    the witness is able to authenticate the
6identity of the individual by receiving accurate answers
7from the individual that enable the authentication.
8 § 5453.    Requirements and options for health care power of
9attorney.
10    (a)    General rule.--A health care power of attorney shall:
11(1)   Identify the [principal] individual creating the
12    health care power of attorney and appoint the health care
13    agent.
14(2)   Declare that the [principal] individual authorizes
15    the health care agent to make health care decisions on behalf
16    of the [principal] individual.
17    (b)    Optional provisions.--A power of attorney for health
18 care may include a health care instruction. A health care power
19 of attorney may, but need not:
20(1)   Describe any limitations that the [principal]
21    individual creating the health care power of attorney imposes
22    upon the authority of the health care agent.
23(2)   Indicate the intent of the [principal] individual
24    regarding the initiation, continuation, withholding or
25    withdrawal of life-sustaining treatment.
26(3)   Indicate whether the [principal] individual wants
27    tube feeding or any other artificial or invasive form of
28    nutrition or hydration.
29(4)   Disqualify [an] another individual from acting as a
30    [health care representative] default surrogate, prohibit the
20260HB2701PN3772  - 41 -
1    appointment of [a health care representative] an individual
2    as default surrogate or provide for an order of priority of
3    appointment of a [health care representative] default
4    surrogate pursuant to section 5461(d) (relating to decisions
5    by [health care representative] default surrogate).
6(5)   Nominate a guardian of the person of the [principal]
7    individual as provided in section 5460 (relating to relation
8    of health care agent to court-appointed guardian and other
9    agents).
10(6)   Contain other provisions as the [principal]
11    individual may specify regarding the implementation of health
12    care decisions and related actions by the health care agent
13    or [health care representative] default surrogate.
14(7)   Request that the health care agent or [health care
15    representative] default surrogate exercise [his] sole and
16    absolute discretion to consult the [principal's relative]
17    individual's family member, cleric or physician should the
18    health care agent or [health care representative] default
19    surrogate be uncertain of the [principal's] individual's
20    wishes or best interests.
21 § 5454.    [When health care power of attorney operative.
22    (a)    When operative.--Unless otherwise specified in the
23 health care power of attorney, a health care power of attorney
24 becomes operative when:
25(1)   a copy is provided to the attending physician; and
26(2)   the attending physician determines that the
27    principal is incompetent.] Rules for health care power of
28    attorney.
29    (a)    (Reserved).
30    (b)    [When inoperative.--Unless otherwise specified in the
20260HB2701PN3772  - 42 -
1 health care power of attorney, a health care power of attorney
2 becomes inoperative during such time as, in the determination of
3 the attending physician, the principal is competent.]
4 (Reserved).
5    (c)    Invalidity of specific direction.--If a specific
6 direction in the health care power of attorney is held to be
7 invalid, the invalidity does not negate other directions in the
8 health care power of attorney that can be effected without the
9 invalid direction.
10    (d)    Duration.--Unless the health care power of attorney
11 states a time of termination, notwithstanding the lapse of time
12 since the health care power of attorney was [executed] created,
13 the health care power of attorney is valid until revoked by any
14 of the following:
15(1)   The [principal] individual who created the health
16    care power of attorney.
17(2)   The court.
18(3)   If authorized by the court, the [principal's]
19    individual's guardian [of the person].
20    (e)    Court approval unnecessary.--A health care decision made
21 by a health care agent for [a principal] an individual is
22 effective without court approval.
23 § 5455.    Appointment of health care agents.
24    [(a)    Multiple and successor health care agents.--A principal
25 may appoint the following in a health care power of attorney:
26(1)   More than one health care agent who shall act
27    jointly unless the health care power of attorney expressly
28    provides otherwise.
29(2)   One or more successor agents who shall serve in the
30    order named in the health care power of attorney unless the
20260HB2701PN3772  - 43 -
1    principal expressly directs to the contrary.]
2    (a.1)   Co-agents and alternate agents.--
3(1)   An individual in a power of attorney for health care
4    may appoint multiple individuals as co-health care agents.
5    Unless the power of attorney provides otherwise, each co-
6    health care agent may exercise independent authority.
7(2)   An individual in a power of attorney for health care
8    may appoint one or more individuals to act as alternate
9    health care agents if a predecessor agent resigns, dies,
10    becomes disqualified, is not reasonably available or
11    otherwise is unwilling or unable to act as health care agent.
12(3)   Unless the power of attorney provides otherwise, an
13    alternate health care agent has the same authority as the
14    original health care agent:
15(i)    at any time the original health care agent is
16not reasonably available or is otherwise unwilling or
17unable to act, for the duration of the unavailability,
18unwillingness or inability to act; or
19(ii)    if the original health care agent and all other
20predecessor health care agents have resigned or died or
21are disqualified from acting as health care agent.
22    (b)   Who may not be appointed health care agent.--Unless
23 [related to the principal by blood, marriage or adoption,] a
24 family member or cohabitant of the individual creating the power
25 of attorney for health care, or a descendant of a cohabitant, a
26 health care agent of the [principal] individual may not be any
27 of the following:
28(1)   [The principal's attending physician or other health
29    care provider.] A health care professional providing care to
30    the individual.
20260HB2701PN3772  - 44 -
1(2)   An owner, operator [or], employee or contractor of a
2    [health care provider in which the principal] long-term care
3    facility in which the individual is receiving care.
4    (c)    Disqualification.--An individual is disqualified from
5 acting as health care agent for an individual who lacks capacity
6 to make health care decisions if a court finds that the
7 potential health care agent poses a danger to the individual's
8 well-being, even if the court does not issue a protection from
9 abuse order against the potential agent.
10 § 5456.    [Authority] Duties and authority of health care agent.
11    (a)    Extent of authority.--An agent or default surrogate has
12 a fiduciary duty to the individual for whom the agent or default
13 surrogate is acting when exercising or purporting to exercise a
14 power. Except as expressly provided otherwise in [a health care
15 power of attorney] an advance health care directive and subject
16 to subsection (b) and section 5460 (relating to relation of
17 health care agent to court-appointed guardian and other agents),
18 a health care agent or default surrogate shall have the
19 authority to make any health care decision and to exercise any
20 right and power regarding the [principal's] individual's care,
21 custody and health care treatment that the [principal]
22 individual could have made and exercised. The foregoing power
23 shall include the power to authorize admission to a medical,
24 nursing, residential or similar facility, or to enter into
25 agreements for the [principal's] individual's care. The health
26 care agent's or default surrogate's authority may extend beyond
27 the [principal's] individual's death to make anatomical gifts,
28 dispose of the remains and consent to autopsies.
29    (b)    Life-sustaining treatment decisions.--A life-sustaining
30 treatment decision made by a health care agent is subject to
20260HB2701PN3772  - 45 -
1 this section and sections 5429 (relating to pregnancy), 5454
2 (relating to [when] rules for health care power of attorney
3 [operative]) and 5462(a) (relating to duties of [attending
4 physician and health care provider] responsible health care
5 professional and health care institution).
6    (c)   Health care decisions.--
7(1)   The health care agent or default surrogate shall
8    gather information on the [principal's] individual's
9    prognosis and acceptable medical alternatives regarding
10    diagnosis, treatments and supportive care.
11(2)   In the case of procedures for which informed consent
12    is required under section 504 of the act of March 20, 2002
13    (P.L.154, No.13), known as the Medical Care Availability and
14    Reduction of Error (Mcare) Act, the information shall include
15    the information required to be disclosed under that act.
16(3)   In the case of health care decisions regarding end
17    of life of [a patient] an individual with an end-stage
18    medical condition, the information shall distinguish between
19    curative alternatives, palliative alternatives and
20    alternatives which will merely serve to prolong the process
21    of dying. The information shall also distinguish between the
22    [principal's] individual's end-stage medical condition and
23    any other concurrent disease, illness or physical, mental,
24    cognitive or intellectual condition that predated the
25    [principal's] individual's end-stage medical condition.
26(4)   After consultation with health care [providers]
27    professionals and consideration of the information obtained
28    in accordance with paragraphs (1), (2) and (3), the health
29    care agent or default surrogate shall make health care
30    decisions in accordance with the health care agent's
20260HB2701PN3772  - 46 -
1  understanding and interpretation of the instructions given by
2  the [principal] individual at a time when the [principal]
3  individual had [the capacity to understand, make and
4  communicate health care decisions] capacity. Instructions
5  include an advance health care directive made by the
6  [principal] individual and any clear [written or] directions
7  in a record or by verbal [directions] or nonverbal
8  communications that cover the situation presented.
9      (5)   (i)     In the absence of instruction, the health care
10      agent or default surrogate shall make health care
11      decisions that conform to the health care agent's or
12      default surrogate's assessment of the [principal's]
13      individual's preferences and values, including religious
14      and moral beliefs.
15(ii)    If the health care agent or default surrogate
16      does not know enough about the [principal's] individual's
17      instructions, preferences and values to decide
18      accordingly, the health care agent or default surrogate
19      shall take into account what the agent or default
20      surrogate knows of the [principal's] individual's
21      instructions, preferences and values, including religious
22      and moral beliefs, and the health care agent's or default
23      surrogate's assessment of the [principal's] individual's
24      best interests, taking into consideration the following
25      goals and considerations of the individual:
26(A)   The preservation of life.
27(B)   The relief from suffering.
28(C)   The preservation or restoration of
29functioning, taking into account any concurrent
30disease, illness or physical, mental, cognitive or
20260HB2701PN3772  - 47 -
1intellectual condition that may have predated the
2[principal's] individual's end-stage medical
3condition.
4(iii)   (A)   In the absence of a specific, [written]
5authorization or direction [by a principal] in a
6record by an individual to withhold or withdraw
7nutrition and hydration administered by gastric tube
8or intravenously or by other artificial or invasive
9means, a health care agent or default surrogate shall
10presume that the [principal] individual would not
11want nutrition and hydration withheld or withdrawn.
12(B)   The presumption may be overcome by
13previously clearly expressed wishes of the
14[principal] individual to the contrary. In the
15absence of such clearly expressed wishes, the
16presumption may be overcome if the health care agent
17or default surrogate considers the values and
18preferences of the [principal] individual and
19assesses the factors set forth in subparagraphs (i)
20and (ii) and determines it is clear that the
21[principal] individual would not wish for artificial
22nutrition and hydration to be initiated or continued.
23(6)   The Department of Health shall ensure as part of the
24  licensure process that health care [providers] institutions
25  under its jurisdiction have policies and procedures in place
26  to implement this subsection.
27  (d)   Health care information.--
28(1)   Unless specifically provided otherwise in a health
29  care power of attorney, a health care agent or default
30  surrogate has the same rights and limitations as the
20260HB2701PN3772  - 48 -
1    [principal] individual who created the health care power of
2    attorney to request, examine, copy and consent or refuse to
3    consent to the disclosure of medical or other health care
4    information.
5(2)   Disclosure of medical or other health care
6    information to a health care agent or default surrogate does
7    not constitute a waiver of any evidentiary privilege or of a
8    right to assert confidentiality. A health care [provider]
9    professional that discloses such information to a health care
10    agent or default surrogate in good faith shall not be liable
11    for the disclosure. A health care agent or default surrogate
12    may not disclose health care information regarding the
13    [principal] individual except as is reasonably necessary to
14    perform the health care agent's or default surrogate's
15    obligations to the [principal] individual or as otherwise
16    required by law.
17    (e)   Revocation.--As soon as reasonably feasible, a health
18 care agent or default surrogate who is informed of a revocation
19 of an advance health care directive or disqualification of the
20 agent or default surrogate shall communicate the revocation or
21 disqualification to a responsible health care professional.
22    (f)   Authority commences.--The power of a health care agent
23 or default surrogate commences when the individual is found
24 under section 5448.4(b) (relating to presumption of capacity;
25 overcoming presumption) or by a court to lack capacity to make a
26 health care decision. The power ceases if the individual later
27 is found to have capacity to make a health care decision, or the
28 individual objects under section 5448.5(c) (relating to notice
29 of finding of lack of capacity; right to object) to the finding
30 of lack of capacity under section 5448.4(b). The power resumes
20260HB2701PN3772  - 49 -
1 if:
2(1)   the power ceased because the individual objected
3under section 5448.5(c); and
4(2)   the finding of lack of capacity is confirmed under
5section 5448.5(d)(4) or a court finds that the individual
6lacks capacity to make a health care decision.
7(g)   Immediate authority.--A power of attorney for health
8 care may provide that the power of an agent under subsection (d)
9 (1) commences on appointment.
10(h)   Insurance and benefits.--If no other person is
11 authorized to do so, a health care agent or default surrogate
12 may apply for public or private health insurance and benefits on
13 behalf of the individual. A health care agent or default
14 surrogate who may apply for insurance and benefits does not,
15 solely by reason of the power, have a duty to apply for the
16 insurance or benefits.
17(i)   Mental health treatment.--A health care agent or default
18 surrogate may not consent to voluntary admission of an
19 individual to a facility for mental health treatment unless:
20(1)   voluntary admission is specifically authorized by
21the individual in an advance health care directive in a
22record; and
23(2)   the admission is for no more than the maximum of the
24number of days specified in the directive or 120 hours,
25whichever is less.
26(j)   Nursing care.--Except as provided in subsection (k), a
27 health care agent or default surrogate may not consent to
28 placement of an individual in a long-term care facility if the
29 placement is intended to be for more than 100 days if:
30(1)   an alternative living arrangement is reasonably
20260HB2701PN3772  - 50 -
1    feasible;
2(2)   the individual objects to the placement; or
3(3)   the individual is not terminally ill.
4    (k)    Nursing care authorized.--If specifically authorized by
5 the individual in an advance health care directive in a record,
6 a health care agent or default surrogate may consent to
7 placement of the individual in a long-term care facility for
8 more than 100 days even if:
9(1)   an alternative living arrangement is reasonably
10    feasible;
11(2)   the individual objects to the placement; and
12(3)   the individual is not terminally ill.
13    (l)    Long-term disability.--If an individual has a long-term
14 disability requiring routine treatment by artificial nutrition,
15 hydration or mechanical ventilation and a history of using the
16 treatment without objection, a health care agent or default
17 surrogate may not consent to withhold or withdraw the treatment
18 unless:
19(1)   the treatment is not necessary to sustain the
20    individual's life or maintain the individual's well-being;
21(2)   the individual has expressly authorized the
22    withholding or withdrawal in a health care instruction that
23    has not been revoked; or
24(3)   the individual has experienced a major reduction in
25    health or functional ability from which the individual is not
26    expected to recover, even with other appropriate treatment,
27    and the individual has not:
28(i)    given a direction inconsistent with withholding
29or withdrawal; or
30(ii)   communicated by verbal or nonverbal expression
20260HB2701PN3772  - 51 -
1a desire for artificial nutrition, hydration or
2mechanical ventilation.
3    (m)    Limitations.--A default surrogate may not make a health
4 care decision if, under other law of this Commonwealth, the
5 decision:
6(1)   may not be made by a guardian; or
7(2)   may be made by a guardian only if the court
8    appointing the guardian specifically authorizes the guardian
9    to make the decision.
10 § 5457.    [Countermand] Override of health care decision.
11    (a)    [Competent principal.--A principal of sound mind may
12 countermand any] General rule.--An individual who has not been
13 found to lack capacity may override a health care decision made
14 by the [principal's] individual's health care agent or default
15 surrogate at any time and in any manner by personally informing
16 [the attending physician or health care provider] a health care
17 professional.
18    (b)    [Incompetent principal] Life-sustaining treatment.--
19 Regardless of the [principal's] individual's mental or physical
20 capacity, [a principal] an individual may [countermand] override
21 a health care decision made by the [principal's] individual's
22 health care agent or default surrogate that would withhold or
23 withdraw life-sustaining treatment at any time and in any manner
24 by personally informing [the attending physician] a health care
25 professional.
26    [(c)     Attending physician.--The attending physician or health
27 care provider shall make reasonable efforts to promptly inform
28 the health care agent of a countermand under this section.
29    (d)    Health care agent.--A countermand exercised under this
30 section shall not affect the authority of a health care agent to
20260HB2701PN3772  - 52 -
1 make other health care decisions in accordance with the health
2 care power of attorney.]
3    (c)    Notification.--A health care professional shall make
4 reasonable efforts to promptly notify an individual's health
5 care agent or default surrogate if the individual informs the
6 health care professional of an override under this section.
7    (d)    Affect on other decisions.--An override made under this
8 section shall not affect the authority of a health care agent or
9 default surrogate to make other health care decisions in
10 accordance with the individual's advance health care directive.
11 § 5458.   Amendment.
12    [While of sound mind, a principal may amend a health care
13 power of attorney by a writing executed in accordance with the
14 provisions of section 5452 (relating to [execution]. An
15 amendment may include the revocation in part of the health care
16 power of attorney or the designation of new or additional health
17 care agents.] An individual who has not been found to lack
18 capacity may amend all or any portion of an advance health care
19 directive by any clear means. An amendment of a power of
20 attorney for health care must be in a record and signed in
21 accordance with the provisions of section 5452 (relating to
22 health care power of attorney).
23 § 5459.   Revocation.
24    (a)    [When health care power of attorney may be revoked.--
25 While of sound mind, a principal may revoke a health care power
26 of attorney by a writing executed in accordance with the
27 provisions of section 5452 (relating to execution) or by
28 personally informing the attending physician, health care
29 provider or health care agent that the health care power of
30 attorney is revoked.] General rule.--An individual may revoke
20260HB2701PN3772  - 53 -
1 the appointment of a health care agent, the designation of a
2 default surrogate or a health care instruction in whole or in
3 part, unless:
4(1)   a court finds the individual lacks capacity to do
5so;
6(2)   the individual is found under section 5448.4(b)
7(relating to presumption of capacity; overcoming presumption)
8to lack capacity to do so and, if the individual objects to
9the finding, the finding is confirmed under section 5448.5(d)
10(4) (relating to notice of finding of lack of capacity; right
11to object); or
12(3)   the individual created an advance mental health care
13directive that includes the provision under section 5451.1(d)
14(relating to advance mental health care directive) and the
15individual is experiencing the psychiatric or psychological
16event specified in the directive.
17(a.1)   Manner of revocation.--Revocation under subsection (a)
18 may be by any act of the individual that clearly indicates that
19 the individual intends to revoke the appointment, designation or
20 instruction, including an oral statement to a health care
21 professional.
22(a.2)   Marriage.--Unless otherwise provided in an
23 individual's power of attorney for health care, the appointment
24 of a spouse or domestic partner or life partner of the
25 individual as health care agent for the individual is revoked
26 if:
27(1)   a petition for annulment, divorce, dissolution of
28marriage, legal separation or termination has been filed and
29not dismissed or withdrawn;
30(2)   a decree of annulment, divorce, dissolution of
20260HB2701PN3772  - 54 -
1    marriage, legal separation or termination has been issued;
2(3)   the individual and the spouse or domestic partner or
3    life partner have agreed in a record to a legal separation;
4    or
5(4)   the spouse or domestic partner or life partner has
6    deserted the individual for more than one year.
7    (b)     [Reliance on health care power of attorney.--A health
8 care provider may rely on the effectiveness of a health care
9 power of attorney unless notified of its revocation.]
10 (Reserved).
11    (c)     Subsequent action by agent.--A health care agent,
12 knowing of the revocation of [the] a health care power of
13 attorney, may not make or attempt to make health care decisions
14 for the [principal] individual who created the health care power
15 of attorney.
16 § 5460.    Relation of health care agent to court-appointed
17guardian and other agents.
18    [(a)    Accountability of health care agent.--If a principal
19 who has executed a health care power of attorney is later
20 adjudicated an incapacitated person and a guardian of the person
21 to make health care decisions is appointed by a court, the
22 health care agent is accountable to the guardian as well as to
23 the principal. In its guardianship order and determination of a
24 person's incapacity, the court shall determine the extent to
25 which the health care agent's authority to act remains in
26 effect.]
27    (a.1)    Decisions by guardian.--
28(1)   A guardian may refuse to comply with or revoke an
29    individual's advance health care directive only if the court
30    appointing the guardian expressly orders the noncompliance or
20260HB2701PN3772  - 55 -
1    revocation.
2(2)   Unless a court orders otherwise, a health care
3    decision made by a health care agent appointed by an
4    individual subject to guardianship prevails over a decision
5    of the guardian appointed for the individual.
6    (b)   Nomination of guardian of person.--In [a health care
7 power of attorney, a principal] an advance health care
8 directive, an individual may nominate a guardian [of the person
9 for the principal] for the individual for consideration by a
10 court if [incapacity] proceedings under section 5512.1 (relating
11 to determination of incapacity and appointment of guardian) for
12 the [principal's] individual's person are thereafter commenced.
13 If a court determines that the appointment of a guardian is
14 necessary, the court shall appoint a guardian in accordance with
15 the [principal's] individual's most recent nomination except for
16 good cause or disqualification.
17    (c)   Reasonable expenses.--In fulfilling the health care
18 needs for [a principal] an individual, a health care agent may
19 incur reasonable expenses, including the purchase of health care
20 insurance, to the extent the expenses are not otherwise covered
21 by insurance or other similar benefits. Payment for the expenses
22 or reimbursement to the health care agent for the expenses from
23 the [principal's] individual's funds shall be made by either of
24 the following:
25(1)   A guardian of the estate of the [principal]
26    individual.
27(2)   [An agent] A person acting on behalf of the
28    [principal] individual under a power of attorney other than a
29    power of attorney for health care if the agent has the power
30    to disburse the funds of the [principal] individual under the
20260HB2701PN3772  - 56 -
1    power of attorney for health care or other law.
2 § 5461.    Decisions by [health care representative] default
3surrogate.
4    (a)    [General rule] Authorization.--A [health care
5 representative] default surrogate may make a health care
6 decision for an individual [whose attending physician has
7 determined that the individual is incompetent] who has been
8 found to lack capacity if:
9(1)   the [individual is at least 18 years of age, has
10    graduated from high school, has married or is an emancipated
11    minor] default surrogate has capacity to make health care
12    decisions;
13(2)   (i)    the individual does not have a health care
14power of attorney; or
15(ii)   the individual's health care agent is not
16reasonably available [or has indicated an unwillingness
17to act] and no alternate health care agent is reasonably
18available; and
19(3)   a guardian [of the person] authorized to make health
20    care decisions has not been appointed for the individual.
21    (b)    Application.--This section applies to decisions
22 regarding treatment, care, goods or services that a caretaker is
23 obligated to provide to a care-dependent person who has an end-
24 stage medical condition or is permanently unconscious as
25 permitted under 18 Pa.C.S. § 2713(e)(5) (relating to neglect of
26 care-dependent person).
27    (c)    [Extent of authority of health care representative.--
28 Except as set forth in section 5462(c)(1) (relating to duties of
29 attending physician and health care provider), the authority and
30 the decision-making process of a health care representative
20260HB2701PN3772  - 57 -
1 shall be the same as provided for a health care agent in section
2 5456 (relating to authority of health care agent) and 5460(c)
3 (relating to relation of health care agent to court-appointed
4 guardian and other agents).] (Reserved).
5    (d)   Who may act as [health care representative] default
6 surrogate.--
7[(1)    An individual of sound mind may, by a signed
8    writing or by personally informing the attending physician or
9    the health care provider, designate one or more individuals
10    to act as health care representative. In the absence of a
11    designation or if no designee is reasonably available, any
12    member of the following classes, in descending order of
13    priority, who is reasonably available may act as health care
14    representative:
15(i)    The spouse, unless an action for divorce is
16pending, and the adult children of the principal who are
17not the children of the spouse.
18(ii)    An adult child.
19(iii)    A parent.
20(iv)    An adult brother or sister.
21(v)    An adult grandchild.
22(vi)    An adult who has knowledge of the principal's
23preferences and values, including, but not limited to,
24religious and moral beliefs, to assess how the principal
25would make health care decisions.]
26(1.1)    Unless an individual has an advance health care
27    directive that indicates otherwise, a member of the following
28    classes, in descending order of priority, who is reasonably
29    available and not disqualified under subsection (e) may act
30    as default surrogate for the individual:
20260HB2701PN3772  - 58 -
1(i)    an adult the individual has identified, other
2      than in a power of attorney for health care, to make a
3      health care decision for the individual if the individual
4      cannot make the decision;
5(ii)    the individual's spouse or domestic partner or
6      life partner unless:
7(A)    a petition for annulment, divorce,
8dissolution of marriage, legal separation or
9termination has been filed and not dismissed or
10withdrawn;
11(B)    a decree of annulment, divorce, dissolution
12of marriage, legal separation or termination has been
13issued;
14(C)    the individual and the spouse or domestic
15partner or life partner have agreed in a record to a
16legal separation; or
17(D)    the spouse or domestic partner or life
18partner has abandoned the individual for more than
19one year;
20(iii)    the individual's cohabitant;
21(iv)    the individual's adult child or parent;
22(v)    the individual's adult sibling;
23(vi)    the individual's adult grandchild or
24      grandparent;
25(vii)    an adult not listed in subparagraphs (i),
26      (ii), (iii), (iv), (v) and (vi)       who has assisted the
27      individual with supported decision making routinely
28      during the preceding six months;
29(viii)       the individual's adult stepchild not listed
30      in subparagraphs (i), (ii), (iii), (iv), (v), (vi) and
20260HB2701PN3772  - 59 -
1(vii) who the individual actively parented during the
2stepchild's minor years and with whom the individual has
3an ongoing relationship; or
4(ix)   an adult not listed in subparagraphs (i), (ii),
5(iii), (iv), (v), (vi), (vii) and (viii) who has
6exhibited special care and concern for the individual and
7is familiar with the individual's preferences and values,
8including, but not limited to, religious and moral
9beliefs, to assess how the individual would make health
10care decisions.
11(2) [ An individual may by signed writing, including a
12    health care power of attorney, provide for a different order
13    of priority.] (Reserved).
14(3)   An individual with a higher priority who is willing
15    to act as a [health care representative] default surrogate
16    may assume the authority to act notwithstanding the fact that
17    another individual has previously assumed that authority.
18(4)   If a responsible health care professional reasonably
19    determines that an individual who assumed authority to act as
20    a default surrogate is not willing or able to comply with a
21    duty under section 5456 (relating to duties and authority of
22    health care agent) or fails to comply with the duty in a
23    timely manner, the professional may recognize the individual
24    next in priority under paragraph (1.1) as the default
25    surrogate.
26    (e)   Disqualification.--[An individual of sound mind may
27 disqualify one or more individuals from acting as health care
28 representative in the same manner as specified under subsection
29 (d) for the designation of a health care representative. An
30 individual may also disqualify one or more individuals from
20260HB2701PN3772  - 60 -
1 acting as health care representative by a health care power of
2 attorney. Upon the petition of any member of the classes set
3 forth in subsection (d), the court may disqualify for cause
4 shown an individual otherwise eligible to serve as a health care
5 representative.]
6(1)   An individual for whom a health care decision would
7    be made may disqualify a potential default surrogate from
8    acting as default surrogate for the individual. The
9    disqualification must be in a record signed by the potential
10    default surrogate or communicated verbally or nonverbally to
11    the individual being disqualified, another individual or a
12    responsible health care professional. Disqualification under
13    this subsection is effective even if made by an individual
14    who lacks capacity to make a health care advance directive if
15    the individual clearly communicates a desire that the
16    potential default surrogate being disqualified not make
17    health care decisions for the individual.
18(2)   An individual is disqualified from acting as a
19    default surrogate for an individual who lacks capacity to
20    make health care decisions if:
21(i)    a court finds that the potential default
22surrogate poses a danger to the individual's well-being,
23even if the court does not issue a protection from abuse
24order against the potential default surrogate;
25(ii)    the potential default surrogate is a health
26care professional providing care to the individual or is
27an owner, operator, employee or contractor of a long-term
28care facility in which the individual is residing or
29receiving care unless the owner, operator, employee or
30contractor is a family member of the individual, the
20260HB2701PN3772  - 61 -
1cohabitant of the individual or a descendant of the
2cohabitant; or
3(iii)   the potential default surrogate refuses to
4provide a timely declaration under subsection (k).
5    (f)   [Limitation on designation of health care
6 representative.--Unless related by blood, marriage or adoption,
7 a health care representative may not be the principal's
8 attending physician or other health care provider nor an owner,
9 operator or employee of a health care provider in which the
10 principal receives care.] (Reserved).
11    (g)   Decision of [health care representative] default
12 surrogate.--
13[(1)    If more than one member of a class assumes
14    authority to act as a health care representative, the members
15    do not agree on a health care decision and the attending
16    physician or health care provider is so informed, the
17    attending physician or health care provider may rely on the
18    decision of a majority of the members of that class who have
19    communicated their views to the attending physician or health
20    care provider.
21(2)    If the members of the class of health care
22    representatives are evenly divided concerning the health care
23    decision and the attending physician or health care provider
24    is so informed, an individual having a lower priority may not
25    act as a health care representative. So long as the class
26    remains evenly divided, no decision shall be deemed made
27    until such time as the parties resolve their disagreement.
28    Notwithstanding such disagreement, nothing in this subsection
29    shall be construed to preclude the administration of health
30    care treatment in accordance with accepted standards of
20260HB2701PN3772  - 62 -
1  medical practice.]
2      (3)     A default surrogate who assumes authority under
3  subsection (d) shall inform a responsible health care
4  professional if two or more members of a class under
5  subsection (d) have assumed authority to act as default
6  surrogates and the members do not agree on a health care
7  decision.
8      (4)     A responsible health care professional shall comply
9  with the decision of a majority of the members of the class
10  with highest priority under subsection (d) who have
11  communicated their views to the professional and the
12  professional reasonably believes are acting consistent with
13  their duties under section 5456.
14      (5)     If a responsible health care professional is
15  informed that the members of the class who have communicated
16  their views to the professional are evenly divided concerning
17  the health care decision, the professional shall make a
18  reasonable effort to solicit the views of members of the
19  class who are reasonably available but have not yet
20  communicated their views to the professional. The
21  professional, after the solicitation, shall comply with the
22  decision of a majority of the members who have communicated
23  their views to the professional and the professional
24  reasonably believes are acting consistent with their duties
25  under section 5456. Subject to paragraph (6), so long as the
26  class remains evenly divided, no decision shall be deemed
27  made until such time as the parties resolve their
28  disagreement. Notwithstanding such disagreement, nothing in
29  this subsection shall be construed to preclude the
30  administration of health care treatment in accordance with
20260HB2701PN3772  - 63 -
1    accepted standards of medical practice.
2(6)   If the class remains evenly divided after the effort
3    is made under paragraph (5), the health care decision must be
4    made as provided by other law of this Commonwealth regarding
5    the treatment of an individual who is found to lack capacity,
6    including Chapter 55 (relating to incapacitated persons).
7    (h)   Duty of [health care representative] default
8 surrogate.--Promptly upon assuming authority to act, a [health
9 care representative] default surrogate shall communicate the
10 assumption of authority to the members of the [principal's
11 family] classes specified in subsection (d) who can be readily
12 contacted.
13    (i)   [Countermand of health care decision.--
14(1)   A principal of sound mind may countermand any health
15    care decision made by the principal's health care
16    representative at any time and in any manner by personally
17    informing the attending physician or health care provider.
18(2)   Regardless of the principal's mental or physical
19    capacity, a principal may countermand a health care decision
20    made by the principal's health care representative that would
21    withhold or withdraw life-sustaining treatment at any time
22    and in any manner by personally informing the attending
23    physician.
24(3)   The attending physician or health care provider
25    shall make reasonable efforts to promptly inform the =health
26    care representative of a countermand exercised under this
27    section.
28(4)   A countermand exercised under this section shall not
29    affect the authority of the health care representative to
30    make other health care decisions.] (Reserved).
20260HB2701PN3772  - 64 -
1    (j)    Court approval unnecessary.--A health care decision made
2 by a [health care representative] default surrogate for a
3 principal shall be effective without court approval.
4    (k)    Written declaration of [health care representative.--An
5 attending physician or health care provider may require a
6 person] default surrogate.--A responsible health care
7 professional may require an individual claiming the right to act
8 as [health care representative for a principal] default
9 surrogate to provide a written declaration in a record made
10 under penalty of perjury stating facts and circumstances
11 reasonably sufficient to establish the claimed authority.
12 § 5462.    [Duties of attending physician and health care
13provider.
14    (a)    Duty to certify end-stage medical condition.--Promptly
15 after a determination that a principal has an end-stage medical
16 condition or is permanently unconscious, the attending physician
17 shall certify in writing that the principal has an end-stage
18 medical condition or is permanently unconscious.] Duties of
19 responsible health care professional and health care
20 institution.
21    (a)    (Reserved).
22    (a.1)     Identify surrogate.--A responsible health care
23 professional who is aware that an individual has been found to
24 lack capacity to make a health care decision shall make a
25 reasonable effort to determine if the individual has a
26 surrogate.
27    (b)    Communication of health care decision.--Whenever
28 possible before implementing a health care decision made by a
29 [health care representative] default surrogate or health care
30 agent, [an attending physician or health care provider] a
20260HB2701PN3772  - 65 -
1 responsible health care professional shall promptly communicate
2 to the [principal] individual the decision and the identity of
3 the [person] individual making the decision.
4    (c)   Compliance with decisions of health care agent and
5 [health care representative] default surrogate.--
6(1)   Health care necessary to preserve life shall be
7    provided to an individual who has neither an end-stage
8    medical condition nor is permanently unconscious, except if
9    the individual [is competent] has capacity and objects to
10    such care or a health care agent or default surrogate objects
11    on behalf of the [principal] individual if authorized to do
12    so by the individual's health care power of attorney or
13    [living will] health care instruction. [In every other case,
14    subject to any limitation specified in the health care power
15    of attorney, an attending physician or health care provider
16    shall comply with a health care decision made by a health
17    care agent or health care representative to the same extent
18    as if the decision had been made by the principal.]
19(1.1)   Except as provided in section 5424(a) and (b)
20    (relating to refusal to comply), a health care professional
21    or health care institution providing health care to an
22    individual shall comply with:
23(i)    a health care instruction given by the
24individual regarding the individual's health care;
25(ii)    a reasonable interpretation by the individual's
26surrogate of an instruction given by the individual; and
27(iii)    a health care decision for the individual made
28by the individual's surrogate in accordance with section
295456 (relating to duties and authority of health care
30agent) to the same extent as if the decision had been
20260HB2701PN3772  - 66 -
1made by the individual at a time when the individual had
2capacity.
3(2)    In all circumstances this subsection shall be
4    construed so as to be consistent with the Americans with
5    Disabilities Act of 1990 (Public Law 101-336, 104 Stat. 327).
6    (d)   Medical record.--
7[(1)    An attending physician or health care provider who
8    is given a health care power of attorney shall arrange for
9    the health care power of attorney or a copy to be placed in
10    the medical record of the principal.
11(2)    An attending physician or health care provider to
12    whom an amendment or revocation of a health care power of
13    attorney is communicated shall promptly enter the information
14    in the medical record of the principal and maintain a copy if
15    one is furnished.]
16(3)    A responsible health care professional who is
17    informed that an individual has created or revoked an advance
18    health care directive, or that a surrogate for an individual
19    has been appointed, designated or disqualified, shall:
20(i)    document the information as soon as reasonably
21feasible in the individual's medical record; and
22(ii)   if evidence of the directive, revocation,
23appointment, designation or disqualification is in a
24record, request a copy and, on receipt, cause the copy to
25be included in the individual's medical record.
26    (e)   Record of determination.--[An attending physician who
27 determines that a principal is incompetent or has become
28 competent or makes a determination that affects the authority of
29 a health care agent shall enter the determination in the medical
30 record of the principal and, if possible, promptly inform the
20260HB2701PN3772  - 67 -
1 principal and any health care agent of the determination.] A
2 responsible health care professional who makes or is informed of
3 a finding that an individual lacks capacity to make a health
4 care decision or no longer lacks capacity, or that other
5 circumstances exist that affect a health care instruction or the
6 authority of a surrogate, as soon as reasonably feasible, shall:
7(1)   document the finding or circumstance in the
8    individual's medical record; and
9(2)   if possible, communicate to the individual and the
10    individual's surrogate the finding or circumstance and that
11    the individual may object under section 5448.5(c) (relating
12    to notice of finding of lack of capacity; right to object) to
13    the finding under section 5448.4(b) (relating to presumption
14    of capacity; overcoming presumption).
15 § 5463.    Effect on other [State] Commonwealth law.
16    (a)    Mental health.--This subchapter does not affect the
17 requirements of other laws of this Commonwealth regarding
18 consent to observation, diagnosis, treatment or hospitalization
19 for a mental illness.
20    (b)    Prohibited care.--This subchapter does not authorize a
21 [health care agent or health care representative] default
22 surrogate to consent to any health care prohibited by the laws
23 of this Commonwealth.
24    (c)    Consent.--This subchapter does not affect the laws of
25 this Commonwealth regarding any of the following:
26(1)   The standard of care of a health care [provider]
27    professional or health care institution required in the
28    administration of health care.
29(2)   When consent is required for health care.
30(3)   Informed consent for health care.
20260HB2701PN3772  - 68 -
1(4)   Consent to health care in an emergency.
2    (d)    Preservation of religious rights.--This subchapter does
3 not prevent a [health care agent or health care representative]
4 default surrogate from consenting to health care administered in
5 good faith pursuant to religious beliefs of [the principal] an
6 individual or from withholding consent to health care that is
7 contrary to religious beliefs of the [principal] individual.
8    (e)    Rights of individuals.--This subchapter does not affect
9 the right of an individual to make health care decisions.
10    (f)    Disclosure.--The disclosure requirements of section
11 5456(d) (relating to duties and authority of health care agent)
12 supersede any provision in any other [State statute or
13 regulation] law of this Commonwealth that requires [the
14 principal] an individual to consent to disclosure or which
15 otherwise conflicts with section 5456(d), including, but not
16 limited to, the following:
17(1)   Section 8 of the act of April 14, 1972 (P.L.221,
18    No.63), known as the Pennsylvania Drug and Alcohol Abuse
19    Control Act.
20(2)   Section 111 of the act of July 9, 1976 (P.L.817,
21    No.143), known as the Mental Health Procedures Act.
22(3)   Section 15 of the act of October 5, 1978 (P.L.1109,
23    No.261), known as the Osteopathic Medical Practice Act.
24(4)   Section 41 of the act of December 20, 1985 (P.L.457,
25    No.112), known as the Medical Practice Act of 1985.
26(5)   Section 7 of the act of November 29, 1990 (P.L.585,
27    No.148), known as the Confidentiality of HIV-Related
28    Information Act.
29 § 5464.    Validity of advance health care directive.
30    [This subchapter does not limit the validity of a power of
20260HB2701PN3772  - 69 -
1 attorney executed prior to the effective date of this
2 subchapter. A health care power of attorney executed in another
3 state or jurisdiction and in conformity with the laws of that
4 state or jurisdiction shall be considered valid in this
5 Commonwealth, except to the extent that the health care power of
6 attorney executed in another state or jurisdiction would allow a
7 health care agent to make a health care decision inconsistent
8 with the laws of this Commonwealth.]
9    (a)     Directives created in other states.--An advance health
10 care directive created outside this Commonwealth is valid if it
11 complies with this chapter or the law of the state specified in
12 the directive or, if a state is not specified, the state in
13 which the individual created the directive.
14    (b)     Reliance.--A person may assume without inquiry that an
15 advance health care directive is genuine, valid and still in
16 effect, and may implement and rely on it, unless the person has
17 good cause to believe the directive is invalid or has been
18 revoked.
19    (c)     Electronic form.--An advance health care directive,
20 revocation of a directive or a signature on a directive or
21 revocation may not be denied legal effect or enforceability
22 solely because it is in electronic form. Evidence relating to an
23 advance health care directive, revocation of a directive or a
24 signature on a directive or revocation may not be excluded in a
25 proceeding solely because the evidence is in electronic form.
26    (d)     Other law.--This chapter does not affect the validity of
27 an electronic record or signature that is valid under the act of
28 December 16, 1999 (P.L.971, No.69), known as the Electronic
29 Transactions Act.
30    (e)     Conflicts with other law.--If this chapter conflicts
20260HB2701PN3772  - 70 -
1 with other law of this Commonwealth relating to the creation,
2 execution, implementation or revocation of an advance health
3 care directive, this chapter prevails.
4 § 5465.    Form.
5    [A health care power of attorney may be in any written form
6 identifying the principal, appointing a health care agent and
7 declaring that the principal authorizes the health care agent to
8 make health care decisions on behalf of the principal. An
9 example of a health care power of attorney appears in the
10 combined form set forth in Subchapter D (relating to combined
11 form).] An advance health care directive may be in a record that
12 combines a power of attorney for health care with a health care
13 instruction.
14    Section 8.      Title 20 is amended by adding a section to read:
15 § 5466.    Effect of copy; certified physical copy.
16    (a)     Same effect.--A physical or electronic copy of an
17 advance health care directive, revocation of an advance health
18 care directive or appointment, designation or disqualification
19 of a surrogate has the same effect as the original.
20    (b)     Copies.--An individual may create a certified physical
21 copy of an advance health care directive or revocation of an
22 advance health care directive that is in electronic form by
23 affirming under penalty of perjury that the physical copy is a
24 complete and accurate copy of the directive or revocation.
25    Section 9.      Section 5471 of Title 20 is repealed:
26 [§ 5471.    Example.
27    The following is an example of a document that combines a
28 living will and health care power of attorney:
29DURABLE HEALTH CARE POWER OF ATTORNEY
30AND HEALTH CARE TREATMENT INSTRUCTIONS
20260HB2701PN3772  - 71 -
1(LIVING WILL)
2PART I
3INTRODUCTORY REMARKS ON
4HEALTH CARE DECISION MAKING
5      You have the right to decide the type of health care you
6  want.
7      Should you become unable to understand, make or
8  communicate decisions about medical care, your wishes for
9  medical treatment are most likely to be followed if you
10  express those wishes in advance by:
11(1)   naming a health care agent to decide treatment
12      for you; and
13(2)   giving health care treatment instructions to
14      your health care agent or health care provider.
15      An advance health care directive is a written set of
16  instructions expressing your wishes for medical treatment.
17NOTICE ABOUT ANATOMICAL DONATION
18      This document may also contain directions regarding
19  whether you wish to donate an organ, tissue or eyes. Under
20  Pennsylvania law, donating a part of the body for
21  transplantation or research is a voluntary act. You do not
22  have to donate an organ, tissue, eye or other part of the
23  body. However, it is important that you make your wishes
24  about anatomical donation known, just as it is important to
25  make your choices about end-of-life care known.
26      Surgeons have made great strides in the field of organ
27  donation and can now transplant hands, facial tissue and
28  limbs. A hand, facial tissue and a limb are examples of what
29  is known as a vascularized composite allograft. Under
30  Pennsylvania law, explicit and specific consent to donate
20260HB2701PN3772  - 72 -
1  hands, facial tissue, limbs or other vascularized composite
2  allografts must be given. You may use this document to make
3  clear your wish to donate or not to donate hands, facial
4  tissue or limbs.
5      Under Pennsylvania law, the organ donor designation on
6  the driver's license authorizes the individual to donate what
7  we traditionally think of as organs (heart, lung, liver,
8  kidney) and tissue and does not authorize the individual to
9  donate hands, facial tissue, limbs or other vascularized
10  composite allografts.
11      Detailed information about anatomical donation, including
12  the procedure used to recover organs, tissues and eyes, can
13  be found on the Department of Transportation's Internet
14  website. Information about the donation of hands, facial
15  tissue and limbs can also be found on the Department of
16  Transportation's Internet website.
17      You may wish to consult with your physician or your
18  attorney to determine whether the procedure for making an
19  anatomical donation is compatible with fulfilling your
20  specific choices for end-of-life care. In addition, you may
21  want to consult with clergy regarding whether you want to
22  donate an organ, a hand, facial tissue or limb or other part
23  of the body. It is important to understand that donating a
24  hand, limb or facial tissue may have an impact on funeral
25  arrangements and that an open casket may not be possible.
26      An advance health care directive may contain a health
27  care power of attorney, where you name a person called a
28  "health care agent" to decide treatment for you, and a living
29  will, where you tell your health care agent and health care
30  providers your choices regarding the initiation,
20260HB2701PN3772  - 73 -
1  continuation, withholding or withdrawal of life-sustaining
2  treatment and other specific directions regarding end-of-life
3  care and your views regarding organ and tissue donation.
4      You may limit your health care agent's involvement in
5  deciding your medical treatment so that your health care
6  agent will speak for you only when you are unable to speak
7  for yourself or you may give your health care agent the power
8  to speak for you immediately. This combined form gives your
9  health care agent the power to speak for you only when you
10  are unable to speak for yourself. A living will cannot be
11  followed unless your attending physician determines that you
12  lack the ability to understand, make or communicate health
13  care decisions for yourself and you are either permanently
14  unconscious or you have an end-stage medical condition, which
15  is a condition that will result in death despite the
16  introduction or continuation of medical treatment. You, and
17  not your health care agent, remain responsible for the cost
18  of your medical care.
19      If you do not write down your wishes about your health
20  care in advance, and if later you become unable to
21  understand, make or communicate these decisions, those wishes
22  may not be honored because they may remain unknown to others.
23      A health care provider who refuses to honor your wishes
24  about health care must tell you of its refusal and help to
25  transfer you to a health care provider who will honor your
26  wishes.
27      You should give a copy of your advance health care
28  directive (a living will, health care power of attorney or a
29  document containing both) to your health care agent, your
30  physicians, family members and others whom you expect would
20260HB2701PN3772  - 74 -
1  likely attend to your needs if you become unable to
2  understand, make or communicate decisions about medical care.
3  If your health care wishes change, tell your physician and
4  write a new advance health care directive to replace your old
5  one. If your wishes about donating an organ, tissue or eyes
6  change, tell your physician and write a new advance health
7  care directive to replace your old one. If you do not wish to
8  donate a hand, facial tissue or limb, it is important to make
9  that clear in your advance health care directive or health
10  care power of attorney, or both. It is important in selecting
11  a health care agent that you choose a person you trust who is
12  likely to be available in a medical situation where you
13  cannot make decisions for yourself. You should inform that
14  person that you have appointed him or her as your health care
15  agent and discuss your beliefs and values with him or her so
16  that your health care agent will understand your health care
17  objectives, including whether you want to limit or withhold
18  life-sustaining measures in the event that you become
19  permanently unconscious or have an end-stage medical
20  condition. You should also tell your health care agent
21  whether you want to donate organs, tissue, eyes or other
22  parts of the body and whether you want to make a donation of
23  your hands, facial tissue or limbs. It is important to
24  understand that if you decide to donate a hand, limb or
25  facial tissue it may impact funeral arrangements and that an
26  open casket may not be possible.
27      You may wish to consult with knowledgeable, trusted
28  individuals such as family members, your physician or clergy
29  when considering an expression of your values and health care
30  wishes. You are free to create your own advance health care
20260HB2701PN3772  - 75 -
1  directive to convey your wishes regarding medical treatment.
2  The following form is an example of an advance health care
3  directive that combines a health care power of attorney with
4  a living will.
5NOTES ABOUT THE USE OF THIS FORM
6      If you decide to use this form or create your own advance
7  health care directive, you should consult with your physician
8  and your attorney to make sure that your wishes are clearly
9  expressed and comply with the law.
10      If you decide to use this form but disagree with any of
11  its statements, you may cross out those statements.
12      You may add comments to this form or use your own form to
13  help your physician or health care agent decide your medical
14  care.
15      This form is designed to give your health care agent
16  broad powers to make health care decisions for you whenever
17  you cannot make them for yourself. It is also designed to
18  express a desire to limit or authorize care if you have an
19  end-stage medical condition or are permanently unconscious.
20  If you do not desire to give your health care agent broad
21  powers, or you do not wish to limit your care if you have an
22  end-stage medical condition or are permanently unconscious,
23  you may wish to use a different form or create your own. YOU
24  SHOULD ALSO USE A DIFFERENT FORM IF YOU WISH TO EXPRESS YOUR
25  PREFERENCES IN MORE DETAIL THAN THIS FORM ALLOWS OR IF YOU
26  WISH FOR YOUR HEALTH CARE AGENT TO BE ABLE TO SPEAK FOR YOU
27  IMMEDIATELY. In these situations, it is particularly
28  important that you consult with your attorney and physician
29  to make sure that your wishes are clearly expressed,
30  including whether you want to limit or withhold life-
20260HB2701PN3772  - 76 -
1  sustaining measures in the event that you become permanently
2  unconscious or have an end-stage medical condition and
3  whether you wish to donate a part of the body for
4  transplantation or research. You should also clearly express
5  whether or not you wish to donate hands, facial tissue or
6  limbs.
7      This form allows you to tell your health care agent your
8  goals if you have an end-stage medical condition or other
9  extreme and irreversible medical condition, such as advanced
10  Alzheimer's disease. Do you want medical care applied
11  aggressively in these situations or would you consider such
12  aggressive medical care burdensome and undesirable?
13      You may choose whether you want your health care agent to
14  be bound by your instructions or whether you want your health
15  care agent to be able to decide at the time what course of
16  treatment the health care agent thinks most fully reflects
17  your wishes and values.
18      If you are a woman and diagnosed as being pregnant at the
19  time a health care decision would otherwise be made pursuant
20  to this form, the laws of this Commonwealth prohibit
21  implementation of that decision if it directs that life-
22  sustaining treatment, including nutrition and hydration, be
23  withheld or withdrawn from you, unless your attending
24  physician and an obstetrician who have examined you certify
25  in your medical record that the life-sustaining treatment:
26      (1)   will not maintain you in such a way as to permit the
27  continuing development and live birth of the unborn child;
28      (2)   will be physically harmful to you; or
29      (3)   will cause pain to you that cannot be alleviated by
30  medication.
20260HB2701PN3772  - 77 -
1  A physician is not required to perform a pregnancy test on
2  you unless the physician has reason to believe that you may
3  be pregnant.
4      Pennsylvania law protects your health care agent and
5  health care providers from any legal liability for following
6  in good faith your wishes as expressed in the form or by your
7  health care agent's direction. It does not otherwise change
8  professional standards or excuse negligence in the way your
9  wishes are carried out. If you have any questions about the
10  law, consult an attorney for guidance.
11      This form and explanation is not intended to take the
12  place of specific legal or medical advice for which you
13  should rely upon your own attorney and physician.
14PART II
15DURABLE HEALTH CARE POWER OF ATTORNEY
16      I,........................, of....................
17  County, Pennsylvania, appoint the person named below to be my
18  health care agent to make health and personal care decisions
19  for me.
20      Effective immediately and continuously until my death or
21  revocation by a writing signed by me or someone authorized to
22  make health care treatment decisions for me, I authorize all
23  health care providers or other covered entities to disclose
24  to my health care agent, upon my agent's request, any
25  information, oral or written, regarding my physical or mental
26  health, including, but not limited to, medical and hospital
27  records and what is otherwise private, privileged, protected
28  or personal health information, such as health information as
29  defined and described in the Health Insurance Portability and
30  Accountability Act of 1996 (Public Law 104-191, 110 Stat.
20260HB2701PN3772  - 78 -
1  1936), the regulations promulgated thereunder and any other
2  State or local laws and rules. Information disclosed by a
3  health care provider or other covered entity may be
4  redisclosed and may no longer be subject to the privacy rules
5  provided by 45 C.F.R. Pt. 164.
6      The remainder of this document will take effect when and
7  only when I lack the ability to understand, make or
8  communicate a choice regarding a health or personal care
9  decision as verified by my attending physician. My health
10  care agent may not delegate the authority to make decisions.
11      MY HEALTH CARE AGENT HAS ALL OF THE FOLLOWING POWERS
12  SUBJECT TO THE HEALTH CARE TREATMENT INSTRUCTIONS THAT FOLLOW
13  IN PART III (CROSS OUT ANY POWERS YOU DO NOT WANT TO GIVE
14  YOUR HEALTH CARE AGENT):
15      1.   To authorize, withhold or withdraw medical care and
16  surgical procedures.
17      2.   To authorize, withhold or withdraw nutrition (food)
18  or hydration (water) medically supplied by tube through my
19  nose, stomach, intestines, arteries or veins.
20      3.   To authorize my admission to or discharge from a
21  medical, nursing, residential or similar facility and to make
22  agreements for my care and health insurance for my care,
23  including hospice and/or palliative care.
24      4.   To hire and fire medical, social service and other
25  support personnel responsible for my care.
26      5.   To take any legal action necessary to do what I have
27  directed.
28      6.   To request that a physician responsible for my care
29  issue a do-not-resuscitate (DNR) order, including an out-of-
30  hospital DNR order, and sign any required documents and
20260HB2701PN3772  - 79 -
1  consents.
2      7.   To authorize or refuse to authorize donation of what
3  we traditionally think of as organs (for example, heart,
4  lung, liver, kidney), tissue, eyes or other parts of the
5  body.
6      8.   To authorize or refuse to authorize donation of
7  hands, facial tissue, limbs or other vascularized composite
8  allografts.
9  APPOINTMENT OF HEALTH CARE AGENT
10  I appoint the following health care agent:
11      Health Care Agent:...................................
12(Name and relationship)
13      Address:.............................................
14      .....................................................
15      Telephone Number:   Home............. Work............
16      E-mail:..............................................
17  IF YOU DO NOT NAME A HEALTH CARE AGENT, HEALTH CARE PROVIDERS
18  WILL ASK YOUR FAMILY OR AN ADULT WHO KNOWS YOUR PREFERENCES
19  AND VALUES FOR HELP IN DETERMINING YOUR WISHES FOR TREATMENT.
20  NOTE THAT YOU MAY NOT APPOINT YOUR DOCTOR OR OTHER HEALTH
21  CARE PROVIDER AS YOUR HEALTH CARE AGENT UNLESS RELATED TO YOU
22  BY BLOOD, MARRIAGE OR ADOPTION.
23      If my health care agent is not readily available or if my
24      health care agent is my spouse and an action for divorce
25      is filed by either of us after the date of this document,
26      I appoint the person or persons named below in the order
27      named. (It is helpful, but not required, to name
28      alternative health care agents.)
29      First Alternative Health Care Agent:.................
30(Name and relationship)
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1      Address:.............................................
2      .....................................................
3      Telephone Number:   Home............. Work............
4      E-mail:..............................................
5      Second Alternative Health Care Agent:................
6(Name and relationship)
7      Address:.............................................
8      .....................................................
9      Telephone Number:   Home............. Work............
10      E-mail:..............................................
11  GUIDANCE FOR HEALTH CARE AGENT (OPTIONAL) GOALS
12      If I have an end-stage medical condition or other extreme
13  irreversible medical condition, my goals in making medical
14  decisions are as follows (insert your personal priorities
15  such as comfort, care, preservation of mental function,
16  etc.):...................................................
17  .........................................................
18  .........................................................
19  .........................................................
20  SEVERE BRAIN DAMAGE OR BRAIN DISEASE
21      If I should suffer from severe and irreversible brain
22  damage or brain disease with no realistic hope of significant
23  recovery, I would consider such a condition intolerable and
24  the application of aggressive medical care to be burdensome.
25  I therefore request that my health care agent respond to any
26  intervening (other and separate) life-threatening conditions
27  in the same manner as directed for an end-stage medical
28  condition or state of permanent unconsciousness as I have
29  indicated below.
30      Initials..............I agree
20260HB2701PN3772  - 81 -
1      Initials..............I disagree
2PART III
3HEALTH CARE TREATMENT INSTRUCTIONS IN THE EVENT
4OF END-STAGE MEDICAL CONDITION
5OR PERMANENT UNCONSCIOUSNESS
6(LIVING WILL)
7      The following health care treatment instructions exercise
8  my right to make my own health care decisions. These
9  instructions are intended to provide clear and convincing
10  evidence of my wishes to be followed when I lack the capacity
11  to understand, make or communicate my treatment decisions:
12      IF I HAVE AN END-STAGE MEDICAL CONDITION (WHICH WILL
13  RESULT IN MY DEATH, DESPITE THE INTRODUCTION OR CONTINUATION
14  OF MEDICAL TREATMENT) OR AM PERMANENTLY UNCONSCIOUS SUCH AS
15  AN IRREVERSIBLE COMA OR AN IRREVERSIBLE VEGETATIVE STATE AND
16  THERE IS NO REALISTIC HOPE OF SIGNIFICANT RECOVERY, ALL OF
17  THE FOLLOWING APPLY (CROSS OUT ANY TREATMENT INSTRUCTIONS
18  WITH WHICH YOU DO NOT AGREE):
19      1.   I direct that I be given health care treatment to
20  relieve pain or provide comfort even if such treatment might
21  shorten my life, suppress my appetite or my breathing, or be
22  habit forming.
23      2.   I direct that all life prolonging procedures be
24  withheld or withdrawn. You may want to consult with your
25  physician and attorney in order to determine whether your
26  designated choices regarding end-of-life care are compatible
27  with anatomical donation. In order to donate an organ your
28  body may need to be maintained on artificial support after
29  you have been declared dead to facilitate anatomical
30  donation. Detailed information about the procedure for being
20260HB2701PN3772  - 82 -
1  declared brain dead or dead by lack of cardiac function and
2  information about organ donation can be found on the
3  Department of Transportation's publicly accessible Internet
4  website.
53.    I specifically do not want any of the following as
6  life prolonging procedures: (If you wish to receive any of
7  these treatments, write "I do want" after the treatment)
8heart-lung resuscitation (CPR)....................
9mechanical ventilator (breathing machine).........
10dialysis (kidney machine).........................
11surgery...........................................
12chemotherapy......................................
13radiation treatment...............................
14antibiotics.......................................
15Please indicate whether you want nutrition (food) or
16  hydration (water) medically supplied by a tube into your
17  nose, stomach, intestine, arteries, or veins if you have an
18  end-stage medical condition or are permanently unconscious
19  and there is no realistic hope of significant recovery.
20  (Initial only one statement.)
21  TUBE FEEDINGS
22........I want tube feedings to be given
23  OR
24  NO TUBE FEEDINGS
25........I do not want tube feedings to be given.
264.    If I have authorized donation of an organ (such as a
27  heart, liver or lung) or a vascularized composite allograft
28  in the next section of this document, I authorize the use of
29  artificial support, including a ventilator, for a limited
30  period of time after I am declared dead to facilitate the
20260HB2701PN3772  - 83 -
1  donation.
25.   I specifically do not want to be on artificial
3  support after I am declared dead.......................
4  HEALTH CARE AGENT'S USE OF INSTRUCTIONS
5  (INITIAL ONE OPTION ONLY).
6........My health care agent must follow these
7  instructions.
8  OR
9........These instructions are only guidance.
10My health care agent shall have final say and may
11override any of my instructions. (Indicate any
12exceptions)...................................
13..............................................
14If I did not appoint a health care agent, these
15  instructions shall be followed.
16  LEGAL PROTECTION
17Pennsylvania law protects my health care agent and health
18  care providers from any legal liability for their good faith
19  actions in following my wishes as expressed in this form or
20  in complying with my health care agent's direction. On behalf
21  of myself, my executors and heirs, I further hold my health
22  care agent and my health care providers harmless and
23  indemnify them against any claim for their good faith actions
24  in recognizing my health care agent's authority or in
25  following my treatment instructions.
26  SIGNATURE..................................................
27INFORMATION ABOUT ANATOMICAL DONATION
28Donating an organ or other part of the body is a
29  voluntary act. Under Pennsylvania law, you do not have to
30  donate an organ or any other part of your body. It is
20260HB2701PN3772  - 84 -
1  important to know the effect of organ donation on your
2  decisions about end-of-life care so that your wishes about
3  end-of-life care will be fulfilled. If someone wishes to
4  become an organ donor, the person may be kept on artificial
5  support after the person has been declared dead to facilitate
6  anatomical donation. Detailed information about the procedure
7  for recovering organs and other parts of the body and
8  detailed information about brain death and cardiac death may
9  be found on the Department of Transportation's publicly
10  accessible Internet website.
11      Under Pennsylvania law, the organ donor designation on
12  the driver's license authorizes the individual to donate what
13  we traditionally think of as organs (for example, heart,
14  lung, liver, kidney) and tissue and does not authorize the
15  individual to donate hands, facial tissue, limbs or other
16  vascularized composite allografts.
17      Under Pennsylvania law, explicit and specific consent to
18  donate hands, facial tissue, limbs and other vascularized
19  composite allografts is needed. Donation of these parts of
20  the body is voluntary. Information about the procedure to
21  transplant hands, facial tissue and limbs can be found on the
22  Department of Transportation's publicly accessible Internet
23  website. It is important to know that donating a hand, limb
24  or facial tissue may impact funeral arrangements and that an
25  open casket may not be possible.
26  ORGAN DONATION
27      ........I consent to making an anatomical gift. This gift
28  does not include hands, facial tissue, limbs or other
29  vascularized composite allografts. I understand that if I
30  want to donate a hand, facial tissue, limb or other
20260HB2701PN3772  - 85 -
1  vascularized composite allograft, there is another place in
2  this document for me to do so. I also understand the hospital
3  may provide artificial support, which may include a
4  ventilator, after I am declared dead in order to facilitate
5  donation. I consent to making a gift of the following parts
6  of my body for transplantation or research (please insert any
7  limitations you desire on donation of specific organs or
8  tissues or eyes or any limitation on the use of a donated
9  part of the body):
10  ...........................................................
11  ...........................................................
12  ...........................................................
13  SIGNATURE..........................DATE....................
14  GIFT OF HANDS, FACIAL TISSUE, LIMBS AND OTHER VASCULARIZED
15  COMPOSITE ALLOGRAFTS
16      ........I consent to making a gift of my hands, facial
17  tissue, limbs or other vascularized composite allografts. I
18  also understand that I have the option of requesting
19  reconstruction of my body in preparation for burial and that
20  anonymity of identity may not be able to be protected in the
21  case of donation of hands, facial tissue or limbs. I also
22  understand that burial arrangements may be affected and that
23  an open casket may not be possible. I also understand that
24  the hospital may provide artificial support, which may
25  include a ventilator, after I am declared dead in order to
26  facilitate donation.
27      Please insert any limitations you desire on donation of
28  hands, facial tissue, limbs or other vascularized composite
29  allografts and whether you request reconstructive surgery
30  before burial:
20260HB2701PN3772  - 86 -
1  ...........................................................
2  ...........................................................
3  ...........................................................
4  SIGNATURE..........................DATE....................
5      ........I do not consent to donating my organs, tissues
6  or any other part of my body, including hands, facial tissue,
7  limbs or other vascularized composite allografts. This
8  provision serves as a refusal to donate any part of my body.
9  This provision also serves as a revocation of any prior
10  decision I have made to donate organs, tissues or other parts
11  of my body, including hands, facial tissue, limbs or other
12  vascularized composite allograft made in a prior document,
13  including a driver's license, will, power of attorney, health
14  care power of attorney or other document.
15  SIGNATURE..........................DATE....................
16      Having carefully read this document, I have signed it
17  this.......day of............., 20..., revoking all previous
18  health care powers of attorney and health care treatment
19  instructions.
20  ...........................................................
21  (SIGN FULL NAME HERE FOR HEALTH CARE POWER OF ATTORNEY AND
22  HEALTH CARE TREATMENT INSTRUCTIONS)
23      WITNESS:.......................
24      WITNESS:.......................
25      Two witnesses at least 18 years of age are required by
26  Pennsylvania law and should witness your signature in each
27  other's presence. A person who signs this document on behalf
28  of and at the direction of a principal may not be a witness.
29  (It is preferable if the witnesses are not your heirs, nor
30  your creditors, nor employed by any of your health care
20260HB2701PN3772  - 87 -
1    providers.)
2NOTARIZATION (OPTIONAL)
3(Notarization of document is not required by Pennsylvania
4    law, but if the document is both witnessed and notarized, it
5    is more likely to be honored by the laws of some other
6    states.)
7On this..........day of .............., 20...., before me
8    personally appeared the aforesaid declarant and principal, to
9    me known to be the person described in and who executed the
10    foregoing instrument and acknowledged that he/she executed
11    the same as his/her free act and deed.
12IN WITNESS WHEREOF, I have hereunto set my hand and
13    affixed my official seal in the County of............., State
14    of.............. the day and year first above written.
15    ..............................        ..........................
16Notary Public  My commission expires]
17    Section 10.    Title 20 is amended by adding a section to read:
18 § 5471.1.   Example.
19    The following form may be used to create an advance health
20 care directive:
21ADVANCE HEALTH CARE DIRECTIVE
22HOW YOU CAN USE THIS FORM
23    You can use this form if you wish to name someone to make
24 health care decisions for you in case you cannot make decisions
25 for yourself. This is called giving the person a power of
26 attorney for health care. This person is called your Agent.
27    You can also use this form to state your wishes, preferences,
28 and goals for health care, and to say if you want to be an organ
29 donor after you die.
30YOUR NAME AND DATE OF BIRTH
20260HB2701PN3772  - 88 -
1      Name: ......................................................
2      Date of birth: .............................................
3PART A: NAMING AN AGENT
4      This part lets you name someone else to make health care
5 decisions for you. You may leave any item blank.
6 1.   NAMING AN AGENT
7      I want the following person to make health care decisions for
8 me if I cannot make decisions for myself:
9      Name: ......................................................
10      Optional contact information (it is helpful to include
11 information such as address, phone, and email): ................
12 ................................................................
13 2.   NAMING AN ALTERNATE AGENT
14      I want the following person to make health care decisions for
15 me if I cannot and my Agent is not able or available to make
16 them for me:
17      Name: .......................................................
18      Optional contact information (it is helpful to include
19 information such as address, phone, and email): ................
20 ................................................................
21 3.   LIMITING YOUR AGENT'S AUTHORITY
22      I give my Agent the power to make all health care decisions
23 for me if I cannot make those decisions for myself, except the
24 following: .....................................................
25 ................................................................
26      (If you do not add a limitation here, your Agent will be able
27 make all health care decisions that an Agent is permitted to
28 make under state law.)
29PART B: HEALTH CARE INSTRUCTIONS
30      This part lets you state your priorities for health care and
20260HB2701PN3772  - 89 -
1 to state types of health care you do and do not want.
2 1.   INSTRUCTIONS ABOUT LIFE-SUSTAINING TREATMENT
3      This section gives you the opportunity to say how you want
4 your Agent to act while making decisions for you. You may mark
5 or initial each choice. You also may leave any choice blank.
6      Treatment.   Medical treatment needed to keep me alive but not
7 needed for comfort or any other purpose should (mark or initial
8 all that apply):
9(____)   Always be given to me. (If you mark or initial
10      this choice, you should not mark or initial other choices in
11      this "treatment" section.).
12(____)   Not be given to me if I have a condition that is
13      not curable and is expected to cause my death soon, even if
14      treated.
15(____)   Not be given to me if I am unconscious and I am
16      not expected to be conscious again.
17(____)   Not be given to me if I have a medical condition
18      from which I am not expected to recover that prevents me from
19      communicating with people I care about, caring for myself,
20      and recognizing family and friends.
21(____)   Other (write what you want or do not want): .....
22      .............................................................
23      .............................................................
24      .............................................................
25      Food and liquids.   If I can't swallow and staying alive
26 requires me to get food or liquids through a tube or other means
27 for the rest of my life, then food or liquids should (mark or
28 initial all that apply):
29(____)   Always be given to me. (If you mark or initial
30      this choice, you should not mark or initial other choices in
20260HB2701PN3772  - 90 -
1    this "food and liquids" section).
2(____)     Not be given to me if I have a condition that is
3    not curable and is expected to cause me to die soon, even if
4    treated.
5(____)     Not be given to me if I am unconscious and am not
6    expected to be conscious again.
7(____)     Not be given to me if I have a medical condition
8    from which I am not expected to recover that prevents me from
9    communicating with people I care about, caring for myself,
10    and recognizing family and friends.
11(____)     Other (write what you want or do not want): .....
12    .............................................................
13    .............................................................
14    .............................................................
15    Pain relief.    If I am in significant pain, care that will
16 keep me comfortable but is likely to shorten my life should
17 (mark or initial all that apply):
18(____)     Always be given to me. (If you mark or initial
19    this choice, you should not mark or initial other choices in
20    this "pain relief" section.)
21(____)     Never be given to me. (If you mark or initial
22    this choice, you should not mark or initial other choices in
23    this "pain relief" section.)
24(____)     Be given to me if I have a condition that is not
25    curable and is expected to cause me to die soon, even if
26    treated.
27(____)     Be given to me if I am unconscious and am not
28    expected to be conscious again.
29(____)     Be given to me if I have a medical condition from
30    which I am not expected to recover that prevents me from
20260HB2701PN3772  - 91 -
1      communicating with people I care about, caring for myself,
2      and recognizing family and friends.
3(____)   Other (write what you want or do not want): .....
4      .............................................................
5      .............................................................
6      .............................................................
7 2.   MY PRIORITIES
8      You can use this section to indicate what is important to
9 you, and what is not important to you. This information can help
10 your Agent make decisions for you if you cannot. It also helps
11 others understand your preferences.
12      You may mark or initial each choice. You also may leave any
13 choice blank.
14      Staying alive as long as possible even if I have substantial
15 physical limitations is:
16(____)   Very important
17(____)   Somewhat important
18(____)   Not important
19      Staying alive as long as possible even if I have substantial
20 mental limitations is:
21(____)   Very important
22(____)   Somewhat important
23(____)   Not important
24      Being free from significant pain is:
25(____)   Very important
26(____)   Somewhat important
27(____)   Not important
28      Being independent is:
29(____)   Very important
30(____)   Somewhat important
20260HB2701PN3772  - 92 -
1(____)   Not important
2      Having my Agent talk with my family before making decisions
3 about my care is:
4(____)   Very important
5(____)   Somewhat important
6(____)   Not important
7      Having my Agent talk with my friends before making decisions
8 about my care is:
9(____)   Very important
10(____)   Somewhat important
11(____)   Not important
12 3.   OTHER INSTRUCTIONS
13      You can write in this section more information about your
14 goals, values, and preferences for treatment, including care you
15 want or do not want. You can also use this section to name
16 anyone who you do not want to make decisions for you under any
17 conditions.
18PART C: OPTIONAL SPECIAL POWERS AND GUIDANCE
19      This part lets you give your Agent additional powers, and to
20 provide more guidance about your wishes. You may mark or initial
21 each choice. You also may leave any choice blank.
22 1.   OPTIONAL SPECIAL POWERS
23      My Agent can do the following things ONLY if I have marked or
24 initialed them below:
25(____)   Admit me as a voluntary patient to a facility for
26      mental health treatment for up to _____ days (write in the
27      number of days you want, up to five days).
28(If I do not mark or initial this choice, my Agent MAY
29      NOT admit me as a voluntary patient to this type of
30      facility.)
20260HB2701PN3772  - 93 -
1(____)   Place me in a long-term care facility for more
2      than 100 days even if my needs can be met somewhere else, I
3      am not terminally ill, and I object.
4(If I do not mark or initial this choice, my Agent MAY
5      NOT do this.)
6 2.   ACCESS TO MY HEALTH INFORMATION
7      My Agent may obtain, examine, and share information about my
8 health needs and health care if I am not able to make decisions
9 for myself. If I mark or initial below, my Agent may also do
10 that at any time my Agent thinks it will help me.
11(____)   I give my Agent permission to obtain, examine,
12      and share information about my health needs and health care
13      whenever my Agent thinks it will help me.
14 3.   FLEXIBILITY FOR MY AGENT
15      Mark or initial below if you want to give your Agent
16 flexibility in following instructions you provide in this form.
17 If you do not, your Agent must follow the instructions even if
18 your Agent thinks something else would be better for you.
19(____)   I give my Agent permission to be flexible in
20      applying these instructions if my Agent thinks it would be in
21      my best interest based on what my Agent knows about me.
22 4.   NOMINATION OF GUARDIAN
23      You can say who you would want as your guardian if you needed
24 one. A guardian is a person appointed by a court to make
25 decisions for someone who cannot make decisions. Filling this
26 out does NOT mean you want or need a guardian.
27      If a court appoints a guardian to make personal decisions for
28 me, I want the court to choose:
29(____)   My Agent named in this form. If my Agent cannot
30      be a guardian, I want the Alternate Agent named in this form.
20260HB2701PN3772  - 94 -
1(____)   Other (write who you would want and their contact
2      information): ...............................................
3      .............................................................
4      .............................................................
5PART D: ORGAN DONATION
6      This part lets you donate your organs after you die. You may
7 leave any item blank.
8 1.   DONATION
9      You may mark or initial only one choice.
10(____)   I donate my organs, tissues, and other body parts
11      after I die, even if it requires maintaining treatments that
12      conflict with other instructions I have put in this form,
13      EXCEPT for those I list below (list any body parts you do NOT
14      want to donate): ............................................
15      .............................................................
16      .............................................................
17(____)   I do not want my organs, tissues, or body parts
18      donated to anybody for any reason. (If you mark or initial
19      this choice, you should skip the "purpose of donation"
20      section.)
21 2.   PURPOSE OF DONATION
22      You may mark or initial all that apply. (If you do not mark
23 or initial any of the purposes below, your donation can be used
24 for all of them.)
25      Organs, tissues, or body parts that I donate may be used for:
26(____)   Transplant
27(____)   Therapy
28(____)   Research
29(____)   Education
30(____)   All of the above
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1PART E:    SIGNATURES
2    YOUR SIGNATURE
3    Sign your name: .............................................
4    Today's date: ...............................................
5    City/Town/Village and State (optional): .....................
6    .............................................................
7    SIGNATURE OF A WITNESS
8    You need a witness if you are using this form to name an
9 Agent. The witness must be an adult and cannot be the person you
10 are naming as Agent or the Agent's spouse or someone the Agent
11 lives with as a couple. If you live or are receiving care in a
12 long-term care facility the witness cannot be an employee or
13 contractor of the facility or someone who owns or runs the
14 facility.
15    Name of Witness: ............................................
16    Signature of Witness: .......................................
17    (Only sign as a witness if you think the person signing above
18 is doing it voluntarily.)
19    Date witness signed: ........................................
20PART F:    INFORMATION FOR AGENTS
21    1.   If this form names you as an Agent, you can make
22 decisions about health care for the person who named you when
23 the person cannot make their own.
24    2.   If you make a decision for the person, follow any
25 instructions the person gave, including any in this form.
26    3.   If you do not know what the person would want, make the
27 decision that you think is in the person's best interest. To
28 figure out what is in the person's best interest, consider the
29 person's values, preferences, and goals if you know them or can
30 learn them. Some of these preferences may be in this form. You
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1 should also consider any behavior or communication from the
2 person that indicates what the person currently wants.
3    4.     If this form names you as an Agent, you can also get and
4 share the person's health information. But unless the person has
5 said so in this form, you can get or share this information only
6 when the person cannot make decisions about the person's health
7 care for themselves.
8    Section 11.     Chapter 58 of Title 20 is repealed:
9[CHAPTER 58
10MENTAL HEALTH CARE
11SUBCHAPTER A
12GENERAL PROVISIONS
13 Sec.
14 5801.    Applicability.
15 5802.    Definitions.
16 5803.    Legislative findings and intent.
17 5804.    Compliance.
18 5805.    Liability.
19 5806.    Penalties.
20 5807.    Rights and responsibilities.
21 5808.    Combining mental health instruments.
22 § 5801.    Applicability.
23    (a)     General rule.--This chapter applies to mental health
24 declarations and mental health powers of attorney.
25    (b)     Preservation of existing rights.--The provisions of this
26 chapter shall not be construed to impair or supersede any
27 existing rights or responsibilities not addressed in this
28 chapter.
29 § 5802.    Definitions.
30    The following words and phrases when used in this chapter
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1 shall have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3    "Attending physician."    A physician who has primary
4 responsibility for the treatment and care of the declarant or
5 principal.
6    "Declarant."   An individual who makes a declaration in
7 accordance with this chapter.
8    "Declaration."   A writing made in accordance with this
9 chapter that expresses a declarant's wishes and instructions for
10 mental health care and mental health care directions and which
11 may contain other specific directions.
12    "Mental health care."    Any care, treatment, service or
13 procedure to maintain, diagnose, treat or provide for mental
14 health, including any medication program and therapeutical
15 treatment.
16    "Mental health care agent."     An individual designated by a
17 principal in a mental health power of attorney.
18    "Mental health care provider."        A person who is licensed,
19 certified or otherwise authorized by the laws of this
20 Commonwealth to administer or provide mental health care in the
21 ordinary course of business or practice of a profession.
22    "Mental health power of attorney."        A writing made by a
23 principal designating an individual to make mental health care
24 decisions for the principal.
25    "Mental health treatment professional."        A licensed physician
26 who has successfully completed a residency program in psychiatry
27 or a person trained and licensed in social work, psychology or
28 nursing who has a graduate degree and clinical experience in
29 mental health.
30    "Principal."   An individual who makes a mental health power
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1 of attorney in accordance with this chapter.
2 § 5803.    Legislative findings and intent.
3    (a)    Intent.--This chapter provides a means for competent
4 adults to control their mental health care either directly
5 through instructions written in advance or indirectly through a
6 mental health care agent.
7    (b)    Presumption not created.--This chapter shall not be
8 construed to create any presumption regarding the intent of an
9 individual who has not executed a declaration or mental health
10 care power of attorney to consent to the use or withholding of
11 treatment.
12    (c)    Findings in general.--The General Assembly finds that
13 all capable adults have a qualified right to control decisions
14 relating to their own mental health care.
15 § 5804.    Compliance.
16    (a)    Duty to comply.--
17(1)   An attending physician and mental health care
18    provider shall comply with mental health declarations and
19    powers of attorney.
20(2)   If an attending physician or other mental health
21    care provider cannot in good conscience comply with a
22    declaration or mental health care decision of a mental health
23    care agent because the instructions are contrary to accepted
24    clinical practice and medical standards or because treatment
25    is unavailable or if the policies of a mental health care
26    provider preclude compliance with a declaration or mental
27    health care decision of a mental health care agent,
28    immediately upon receipt of the declaration or power of
29    attorney and as soon as any possibility of noncompliance
30    becomes apparent, the attending physician or mental health
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1    care provider shall so inform the following:
2(i)    The declarant if the declarant is competent.
3(ii)    The substitute named in the declaration if the
4declarant is incompetent.
5(iii)    The guardian or other legal representative of
6the declarant if the declarant is incompetent and a
7substitute is not named in the declaration.
8(iv)    The mental health care agent of the principal.
9(3)   The physician or mental health care provider shall
10    document the reasons for noncompliance.
11    (b)    Transfer.--An attending physician or mental health care
12 provider under subsection (a)(2) shall make every reasonable
13 effort to assist in the transfer of the declarant or principal
14 to another physician or mental health care provider who will
15 comply with the declaration or mental health care decision of
16 the mental health care agent. While the transfer is pending, the
17 patient shall be treated consistent with the declaration or
18 mental health care decision of the mental health agent. If
19 reasonable efforts to transfer fail, the patient may be
20 discharged.
21 § 5805.    Liability.
22    (a)    General rule.--A person who is a physician, another
23 mental health care provider or another person who acts in good
24 faith and consistent with this chapter may not be subject to
25 criminal or civil liability, discipline for unprofessional
26 conduct or administrative sanctions and may not be found to have
27 committed an act of unprofessional conduct by any professional
28 board or administrative body with such authority as a result of
29 any of the following:
30(1)   Complying with a direction or decision of an
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1    individual who the person believes in good faith has
2    authority to act as a principal's mental health care agent so
3    long as the direction or decision is not clearly contrary to
4    the terms of the mental health power of attorney.
5(2)   Refusing to comply with a direction or decision of
6    an individual based on a good faith belief that the
7    individual lacks authority to act as a principal's mental
8    health care agent.
9(3)   Complying with a mental health care power of
10    attorney or declaration under the assumption that it was
11    valid when made and has not been amended or revoked.
12(4)   Disclosing mental health care information to another
13    person based upon a good faith belief that the disclosure is
14    authorized, permitted or required by this chapter.
15(5)   Refusing to comply with the direction or decision of
16    an individual due to conflicts with a provider's contractual,
17    network or payment policy restrictions.
18(6)   Refusing to comply with a declaration or mental
19    health power of attorney which violates accepted clinical
20    standards or medical standards of care.
21(7)   Making a determination that the patient lacks
22    capacity to make mental health decisions that causes a
23    declaration or a mental health power of attorney to become
24    effective.
25(8)   Failing to determine that a patient lacks capacity
26    to make mental health decisions for the purposes of this
27    chapter.
28    (b)   Same effect as if dealing with principal.--Any attending
29 physician, mental health care provider and other person who acts
30 under subsection (a) shall be protected and released to the same
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1 extent as if dealing directly with a competent principal.
2    (c)    Good faith of mental health care agent.--A mental health
3 care agent who acts according to the terms of a mental health
4 power of attorney may not be subject to civil or criminal
5 liability for acting in good faith for a principal or failing in
6 good faith to act for a principal.
7 § 5806.    Penalties.
8    (a)    Offense defined.--A person commits a felony of the third
9 degree by willfully:
10(1)   Concealing, canceling, altering, defacing,
11    obliterating or damaging a declaration without the consent of
12    the declarant.
13(2)   Concealing, canceling, altering, defacing,
14    obliterating or damaging a mental health power of attorney or
15    any amendment or revocation thereof without the consent of
16    the principal.
17(3)   Causing a person to execute a declaration or power
18    of attorney under this chapter by undue influence, fraud or
19    duress.
20(4)   Falsifying or forging a mental health power of
21    attorney or declaration or any amendment or revocation
22    thereof, the result of which is a direct change in the mental
23    health care provided to the principal.
24    (b)    Removal and liability.--An agent who willfully fails to
25 comply with a mental health power of attorney may be removed and
26 sued for actual damages.
27 § 5807.    Rights and responsibilities.
28    (a)    Declarants and principals.--Persons who execute a
29 declaration or a mental health power of attorney shall have the
30 following rights and responsibilities:
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1(1)   For the purposes of this chapter, persons are
2    presumed capable of making mental health decisions, including
3    the execution of a mental health declaration or power of
4    attorney, unless they are adjudicated incapacitated,
5    involuntarily committed or found to be incapable of making
6    mental health decisions after examination by a psychiatrist
7    and one of the following: another psychiatrist, psychologist,
8    family physician, attending physician or mental health
9    treatment professional. Whenever possible, at least one of
10    the decision makers shall be a treating professional of the
11    declarant or principal.
12(2)   Persons shall be required to notify their mental
13    health care provider of the existence of any declaration or
14    mental health power of attorney.
15(3)   Persons shall execute or amend their declarations or
16    mental health powers of attorney every two years; however, if
17    a person is incapable of making mental heath care decisions
18    at the time this document would expire, the document shall
19    remain in effect and be reviewed at the time when the person
20    regains capacity.
21(4)   Persons shall give notice of amendment and
22    revocation to providers, agents and guardians, if any.
23    (b)   Providers.--Mental health treatment providers shall have
24 the following rights and responsibilities:
25(1)   Inquire as to the existence of declarations or
26    powers of attorney for persons in their care.
27(2)   Inform persons who are being discharged from
28    treatment about the availability of mental health
29    declarations and powers of attorney as part of discharge
30    planning.
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1(3)   Not require declarations or powers of attorney as
2    conditions of treatment. Mental health treatment providers
3    may not choose whether to accept a person for treatment based
4    solely on the existence or absence of a mental health
5    declaration or power of attorney.
6 § 5808.    Combining mental health instruments.
7    (a)    General rule.--A declaration and mental health power of
8 attorney may be combined into one mental health document.
9    (b)    Form.--A combined declaration and mental health power of
10 attorney may be in the following form or any other written form
11 which contains the information required under Subchapters B
12 (relating to mental health declarations) and C (relating to
13 mental health powers of attorney):
14Combined Mental Health Care Declaration
15and Power of Attorney Form
16    Part I.      Introduction.
17    I,  , having capacity to make mental health
18    decisions, willfully and voluntarily make this declaration
19    and power of attorney regarding my mental health care.
20    I understand that mental health care includes any care,
21    treatment, service or procedure to maintain, diagnose, treat
22    or provide for mental health, including any medication
23    program and therapeutic treatment. Electroconvulsive therapy
24    may be administered only if I have specifically consented to
25    it in this document. I will be the subject of laboratory
26    trials or research only if specifically provided for in this
27    document. Mental health care does not include psychosurgery
28    or termination of parental rights.
29    I understand that my incapacity will be determined by
30    examination by a psychiatrist and one of the following:
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1  another psychiatrist, psychologist, family physician,
2  attending physician or mental health treatment professional.
3  Whenever possible, one of the decision makers will be one of
4  my treating professionals.
5  Part II.    Mental Health Declaration.
6  A.   When this declaration becomes effective.
7  This declaration becomes effective at the following
8  designated time:
9  ( ) When I am deemed incapable of making mental health care
10  decisions.
11  ( ) When the following condition is met:
12(List condition)
13  B.   Treatment preferences.
141.    Choice of treatment facility.
15  ( ) In the event that I require commitment to a psychiatric
16  treatment facility, I would prefer to be admitted to the
17  following facility:
18(Insert name and address of facility)
19  ( ) In the event that I require commitment to a psychiatric
20  treatment facility, I do not wish to be committed to the
21  following facility:
22(Insert name and address of facility)
23  I understand that my physician may have to place me in a
24  facility that is not my preference.
252.    Preferences regarding medications for psychiatric
26  treatment.
27  ( ) I consent to the medications that my treating physician
28  recommends.
29  ( ) I consent to the medications that my treating physician
30  recommends with the following exception, preference or
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1  limitation:
2  (List medication and reason for exception, preference or
3  limitation)
4  The exception, preference or limitation applies to generic,
5  brand name and trade name equivalents. I understand that
6  dosage instructions are not binding on my physician.
7  ( ) I do not consent to the use of any medications.
8  ( ) I have designated an agent under the power of attorney
9  portion of this document to make decisions related to
10  medication.
11      3.     Preferences regarding electroconvulsive therapy
12  (ECT).
13  ( ) I consent to the administration of electroconvulsive
14  therapy.
15  ( ) I do not consent to the administration of
16  electroconvulsive therapy.
17  ( ) I have designated an agent under the power of attorney
18  portion of this document to make decisions related to
19  electroconvulsive therapy.
20      4.     Preferences for experimental studies or drug trials.
21  ( ) I consent to participation in experimental studies if my
22  treating physician believes that the potential benefits to me
23  outweigh the possible risks to me.
24  ( ) I have designated an agent under the power of attorney
25  portion of this document to make decisions related to
26  experimental studies.
27  ( ) I do not consent to participation in experimental
28  studies.
29  ( ) I consent to participation in drug trials if my treating
30  physician believes that the potential benefits to me outweigh
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1  the possible risks to me.
2  ( ) I have designated an agent under the power of attorney
3  portion of this document to make decisions related to drug
4  trials.
5  ( ) I do not consent to participation in any drug trials.
65.    Additional instructions or information.
7  Examples of other instructions or information that may be
8  included:
9Activities that help or worsen symptoms.
10Type of intervention preferred in the event of a crisis.
11Mental and physical health history.
12Dietary requirements.
13Religious preferences.
14Temporary custody of children.
15Family notification.
16Limitations on the release or disclosure of mental health
17records.
18Other matters of importance.
19  C.   Revocation.
20  This declaration may be revoked in whole or in part at any
21  time, either orally or in writing, as long as I have not been
22  found to be incapable of making mental health decisions.
23  My revocation will be effective upon communication to my
24  attending physician or other mental health care provider,
25  either by me or a witness to my revocation, of the intent to
26  revoke. If I choose to revoke a particular instruction
27  contained in this declaration in the manner specified, I
28  understand that the other instructions contained in this
29  declaration will remain effective until:
30(1)    I revoke this declaration in its entirety;
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1(2)    I make a new combined mental health declaration and
2  power of attorney; or
3(3)    two years after the date this document was executed.
4  D.   Termination.
5  I understand that this declaration will automatically
6  terminate two years from the date of execution unless I am
7  deemed incapable of making mental health care decisions at
8  the time that this declaration would expire.
9(Specify date)
10  E.   Preference as to a court-appointed guardian.
11  I understand that I may nominate a guardian of my person for
12  consideration by the court if incapacity proceedings are
13  commenced under 20 Pa.C.S. § 5511. I understand that the
14  court will appoint a guardian in accordance with my most
15  recent nomination except for good cause or disqualification.
16  In the event a court decides to appoint a guardian, I desire
17  the following person to be appointed:
18   (Insert name, address, telephone number of the designated
19person)
20  ( ) The appointment of a guardian of my person will not give
21  the guardian the power to revoke, suspend or terminate this
22  declaration.
23  ( ) Upon appointment of a guardian, I authorize the guardian
24  to revoke, suspend or terminate this declaration.
25  Part III.     Mental Health Power of Attorney.
26  I,  , having the capacity to make mental health
27  decisions, authorize my designated health care agent to make
28  certain decisions on my behalf regarding my mental health
29  care. If I have not expressed a choice in this document or in
30  the accompanying declaration, I authorize my agent to make
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1  the decision that my agent determines is the decision I would
2  make if I were competent to do so.
3  A.   Designation of agent.
4  I hereby designate and appoint the following person as my
5  agent to make mental health care decisions for me as
6  authorized in this document. This authorization applies only
7  to mental health decisions that are not addressed in the
8  accompanying signed declaration.
9  (Insert name of designated person)
10  Signed:
11  (My name, address, telephone number)
12  Witnesses' signatures:
13  (Insert names, addresses, telephone numbers of witnesses)
14  Agent's acceptance:
15  I hereby accept designation as mental health care agent for
16  (Insert name of declarant)
17  Agent's signature:
18  (Insert name, address, telephone number of designated person)
19  B.   Designation of alternative agent.
20  In the event that my first agent is unavailable or unable to
21  serve as my mental health care agent, I hereby designate and
22  appoint the following individual as my alternative mental
23  health care agent to make mental health care decisions for me
24  as authorized in this document:
25  (Insert name of designated person)
26  Signed:
27  (My name, address, telephone number)
28  Witnesses' signatures:
29  (Insert names, addresses, telephone numbers of witnesses)
30  Alternative agent's acceptance:
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1  I hereby accept designation as alternative mental health care
2  agent for (Insert name of declarant)
3  Alternative agent's signature:
4  (Insert name, address, telephone number of alternative agent)
5  C.   When this power of attorney become effective.
6  This power of attorney will become effective at the following
7  designated time:
8  ( ) When I am deemed incapable of making mental health care
9  decisions.
10  ( ) When the following condition is met:
11(List condition)
12  D.   Authority granted to my mental health care agent.
13  I hereby grant to my agent full power and authority to make
14  mental health care decisions for me consistent with the
15  instructions and limitations set forth in this document. If I
16  have not expressed a choice in this power of attorney or in
17  the accompanying declaration, I authorize my agent to make
18  the decision that my agent determines is the decision I would
19  make if I were competent to do so.
20(1)   Preferences regarding medications for psychiatric
21  treatment.
22  ( ) My agent is authorized to consent to the use of any
23  medications after consultation with my treating psychiatrist
24  and any other persons my agent considers appropriate.
25  ( ) My agent is not authorized to consent to the use of any
26  medications.
27(2)   Preferences regarding electroconvulsive therapy
28  (ECT).
29  ( ) My agent is authorized to consent to the administration
30  of electroconvulsive therapy.
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1  ( ) My agent is not authorized to consent to the
2  administration of electroconvulsive therapy.
3(3)   Preferences for experimental studies or drug trials.
4  ( ) My agent is authorized to consent to my participation in
5  experimental studies if, after consultation with my treating
6  physician and any other individuals my agent deems
7  appropriate, my agent believes that the potential benefits to
8  me outweigh the possible risks to me.
9  ( ) My agent is not authorized to consent to my participation
10  in experimental studies.
11  ( ) My agent is authorized to consent to my participation in
12  drug trials if, after consultation with my treating physician
13  and any other individuals my agent deems appropriate, my
14  agent believes that the potential benefits to me outweigh the
15  possible risks to me.
16  ( ) My agent is not authorized to consent to my participation
17  in drug trials.
18  E.   Revocation.
19  This power of attorney may be revoked in whole or in part at
20  any time, either orally or in writing, as long as I have not
21  been found to be incapable of making mental health decisions.
22  My revocation will be effective upon communication to my
23  attending physician or other mental health care provider,
24  either by me or a witness to my revocation, of the intent to
25  revoke. If I choose to revoke a particular instruction
26  contained in this power of attorney in the manner specified,
27  I understand that the other instructions contained in this
28  power of attorney will remain effective until:
29(1)   I revoke this power of attorney in its entirety;
30(2)   I make a new combined mental health care declaration
20260HB2701PN3772  - 111 -
1  and power of attorney; or
2      (3)   two years from the date this document was executed.
3  I understand that this power of attorney will automatically
4  terminate two years from the date of execution unless I am
5  deemed incapable of making mental health care decisions at
6  the time that the power of attorney would expire.
7  I am making this combined mental health care declaration and
8  power of attorney on the (insert day) day of (insert month),
9  (insert year).
10  My signature:
11  (My name, address, telephone number)
12  Witnesses' signatures:
13  (Names, addresses, telephone numbers of witnesses).
14  If the principal making this combined mental health care
15  declaration and power of attorney is unable to sign this
16  document, another individual may sign on behalf of and at the
17  direction of the principal.
18  Signature of person signing on my behalf:
19  (Name, address, telephone number)]
20  Section 12.   This act shall take effect in 180 days.
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