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
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