Act 169 which takes effect on January 29, 2007, makes sweeping changes affecting health care powers of attorney and living wills   On November 29th, Governor Rendell signed into law Act 169 of 2006 (formerly SB 628).  The Act, which will take effect on January 29, 2007, makes sweeping changes affecting health care powers of attorney and living wills, reauthorizes out-of-hospital do-not-resuscitate orders, and -- for the first time -- authorizes actions by health care representatives. The Act rewrites and replaces Chapter 54 of Title 20 to provide a statutory means for competent adults to control their health care by written instructions, or through health care agents or representatives and requested orders. It also provides for execution and revocation of living wills and health care powers of attorney with health care agents, and authorizes selection and duties of health care representatives in the absence of an agent designation.   What’s new in the law Definition of advance health care directive Prior law: an advance health care directive is a declaration to consent to the use or withholding of life-sustaining procedures in the event of a terminal condition or a state of permanent unconsciousness.  The law contains no specific reference to a living will. New law: an advance health care directive is a health care power of attorney, living will, or a written combination of a health care power of attorney and living will. •           A living will is a written statement of the patient’s wishes regarding life-sustaining treatment and other care if the patient is determined to be incompetent and to have an end-stage medical condition or is permanently unconscious.   •           A health care power of attorney is a written document in which the patient appoints another person to serve as the patient’s health care agent and make health care decisions for the patient.   When presented with an advance health care directive, health care providers must place a copy in the patient’s medical record.   Triggering event: incompetent patient Prior law:  “incompetent” defined as the lack of sufficient capacity for a person to make or communicate decisions concerning himself. New law: ‘incompetent’  means " A condition in which an individual despite being provided appropriate medical information, communication supports and technical assistance, is documented by a health care provider to be: (1) unable to understand the potential material benefits, risks and alternatives involved in a specific proposed health care decision;            (2) unable to make that health care decision on his own behalf; or (3) unable to communicate that health care decision to any other person. The term is intended to permit individuals to be found incompetent to make some health care decisions, but competent to make others.     Triggering event: terminal condition v. end-stage medical condition Prior law: triggering event is patient determined by doctor to be in a terminal condition which is defined as an incurable and irreversible medical condition in advanced state caused by injury, disease or physical illness which will result in death regardless of the continued application of life-sustaining treatment. New law:  triggering event is end-stage medical condition defined as an incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will result in death despite the introduction or continuation of medical treatment.  Except as specifically set forth in an advance health care directive, the term is not intended to preclude treatment of a disease, illness or physical, mental, cognitive or intellectual condition, even if incurable and irreversible regardless of severity, if (i) the patient would benefit from the medical treatment, including palliative care and (ii) such treatment would not merely prolong the process of dying.   Duty of physician to confirm condition Prior law: attending physician has duty to confirm diagnosis of terminal condition or state of permanent unconsciousness with a second opinion. New law: does not require determination of triggering event to be confirmed with a second opinion.   Individual(s) allowed to make decisions for the patient Prior law: patient may designate a surrogate to make the treatment decision for the patient once patient determined to be incompetent and suffering from terminal condition or a state of permanent unconsciousness. New law:  A health care agent is an individual designated by a patient in an advance health care directive, i.e. either a living will or a health care power of attorney.  Health care agents are not restricted to end-of-life decision-making.  Although health care agents generally are given authority only when the patient is incompetent, a health care power of attorney may vest an agent with authority even when the patient is competent.   A health care representative may make health care decisions for an incompetent adult patient who has no controlling living will, health care power of attorney, or guardian of the person.  By writing or personally informing the attending physician or healthcare provider, a patient may designate one or more individuals to act as health care representative.   Unless a patient designated otherwise, the patient’s health care representative will be determined by a statutory list that generally gives priority in the following order:   (i) The spouse, unless an action for divorce is pending, and the adult children of the patient who are not the children of the spouse. (ii) An adult child. (iii) A parent. (iv) An adult brother or sister. (v) An adult grandchild. (vi) Close friend. An adult who has knowledge of the principal's preferences and values, including, but not limited to, religious and moral beliefs, to assess how the patient would make health care decisions.       Revoking advance directives Prior law: revocation of declaration under Advance Healthcare Directive Act made at any time and in any manner by patient without regard to patient’s mental or physical condition.  A revocation is effective upon communication to the attending physician by the patient or by a witness to the revocation. New law: A patient may revoke a living will at any time and in any manner, regardless of the mental or physical condition of the patient, i.e. even if the patient is not of sound mind.  A revocation of a living will is effective when it is communicated to the attending physician or healthcare provider by either the patient or a witness to the revocation.   A patient must be of sound mind to revoke a health care power of attorney.  To revoke a health care power of attorney, a patient must do so in a writing conforming to the execution requirements for a heath care power of attorney or personally communicate the revocation to the patient’s attending physician, health care provider or health care agent.   If the spouse of a patient is named as the patient’s health care agent and thereafter either spouse files for divorce, the designation of the spouse as health care agent shall be revoked as of the time the action is filed unless it clearly appears from the advance health care directive that the designation was intended to continue to be effective notwithstanding the filing of an action in divorce by either spouse. 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