Mercy Fitzgerald Hospital Thrown Out of Court in DELCO Guardianship Case

          Chapter 54 of the Pennsylvania Estates, Decedents and Fiduciaries Code (20 Pa. C.S.) deals with Living Wills and Medical Powers of Attorney. Unfortunately, few medical providers are aware of the terms of the law. This problem is compounded by the fact that many people download medical power of attorney and living will forms from the Internet without realizing the implications of their choices.

          These two issues played out in a recent case in the Delaware Valley Orphans Court last September. The facts were as follows:

          M.J. was a patient at Mercy Fitzgerald Hospital who was being kept alive by a mechanical ventilator and a feeding tube.  Doctors at Mercy Fitzgerald filed a guardianship petition and informed the DELCO court that the patient would not be able to continue indefinitely with the current life supports, and the patient was also suffering from end-stage dementia and a failure to thrive. Since the current equipment was not intended for sustained use they would have to insert a PEG tube for feeding. The doctors also felt that the operation would be painful for the  patient and would only serve to prolong the patient's process of dying. The doctors and hospital had recommended that the patient be placed in hospice and palliative care. The patient had two sons: one son disagreed with the hospital and the other son wanted the parent placed on hospice and palliative care. 

          Ten years prior to this, the patient had drafted a medical power of attorney and living will. There were several problems with those documents. The first problem was questions regarding the patient's capacity to draft the document when she did. Another problem was that the legal document appointed her two sons as her agents and gave them the power to act alone or together. The two sons could not agree on the procedure to be followed,  so the hospital brought a guardianship  action in court. The crux of the problem is that the power of attorney as drafted gave any of the sons the power to act as an agent either jointly or individually, thereby rendering it almost meaningless.

         The DELCO Court stated that a guardianship was improper because  there already was a Durable Power of Attorney in place, and the statute specifically gives preference to those documents. The Court cited Section 6612(a)(3) of the Pennsylvania Fiduciary Code stating that a guardian is generally not necessary if the principal has drafted a Power of Attorney. One of the sons who was an agent under the Power of Attorney showed up in the Delaware County court and explained how the principal would not have wanted the life support withdrawn. The court stated that although the attending physician and the hospital may not agree with the agent's decision, it should be controlling.

          One thing the court did not mention is who is given the priority to make decisions under Advance Health Care Directives. Section 5461(g)(2) of the Decedent's and Fiduciaries Code - Title 20 provides express guidance to medical personnel when agents under the document are not in accord and evenly divided. In that case the law directs them to act as though no decision had been made, and to administer  health care treatment "in accordance with accepted standards of medical practice." Hence, whatever options may have been available to them, the filing of a guardianship petition was not one of them. 

This case points out that, contrary to rumors, if you draft one of these documents, they are honored. However, it may be worth the cost to have them drafted by a competent attorney who can offer drafting advice and spot any incongruities and/or provisions that may cause  problems later.

Bob Gasparro
robert.gasparro@lifespanlegal.com
Telephone-484-451-6612
www.lifespanlegal.com

Surrey Services, in Conjunction With Penn Memory Center, to Offer Free Classes About Alzheimer's and Dementia

Surrey Services of Devon Pennsylvania has partnered with Penn Memory Center to offer a free lecture series about Alzheimer's and dementia.

The first lecture is entitled:  Conundrums in Research on the Aging Mind. The lecture will be held Friday, February 20, 2016, from 9:30 to 11 a.m. at Surrey Services, 60 Surrey Way, Devon, PA, The lecturer will be Stephen E Arnold, M.D.

Other lectures held later include:  How Early Can We Diagnose Alzheimer's Disease? This lecture will be held on Friday, March 20, 2015. Next is Cognitive Aging and Cognitive Fitness: A Proactive Approach, held on Friday, April 17, 2015. The final lecture is Caring for the dementia Caregiver which will be held on Friday, May 15, 2015.

For more information, or to register, call Nicole at Surrey, Senior Services of Devon PA 610-647-9172.

Bob Gasparro, Esq
Lifespan Legal Services, LLC
robert.gasparro@lifespanlegal.com

PA Superior Court Case Earlier This Month Highlights Usefulness of a Standby Guardian for Minor Children

The recent Pennsylvania Superior Court decision published on January 6, 2015, highlights the usefulness and need of parents to appointing a Standby Guardian for minor children. This case dealt with a minor, J.A., who was injured in the same auto accident as her parent. The incapacitated parent could not make medical decisions for her child.  The Allegheny County juvenile court appointed a social agency (KidsVoice) as the medical agent for the child.The Superior Court reversed the decision of the lower court, stating that only a juvenile court or a parent or a standby guardian appointed by the parent may make medical decisions regarding a minor. They said a juvenile court does not have the authority to delegate the decision making to an agency. Another reason the court had appointed the agency as Guardian was because the medical providers disagreed with the medical decisions made by the mother. The Pennsylvania Superior Court acknowledged that the juvenile court may take whatever action is necessary "in the best interest of the child" if the parent is making imprudent decisions, but the court may not delegate that authority. The case was In Re: J.A., No: 15-0059.

Many parents do not realize that, in addition to appointing a guardian for the child in their will, they can appoint a Standby Guardian to make decisions on behalf of their child even if they are only temporarily incapacitated, or even away on vacation.This law, found at 23 Pa.C.S.A. § 5601 et seq. , is appropriately entitled the Standby Guardianship Act. Please contact us or any competent attorney to have one of these documents drawn up.

Bob Gasparro
robert.gasparro@lifespanlegal.com
(484) 451-6612