Advance Directives

Advance directives are documents which indicated your health care wishes in the event that you are not capable of making your own decisions. Advance directives are not used for decision-making if the patient is able to make the decision.

Pennsylvania recognizes two types of advance directives, durable power of attorney for health care decisions and living wills. A Values History is another form of advance directive (which may or may not include a living will and durable power of attorney for health care decisions). Here is a link to a sample Values History form. The AbioCor Implantable Heart Trial required all research participants to fill out a Values History Form.

Here is a link to the AMA's public web-site for advance directives. It includes samples of a living will and DPA form. Pennsylvania does not require these forms to be notarized. But since some states do, the forms include a line for notarization as well. http://www.ama-assn.org/public/booklets/livgwill.htm

Durable Power of Attorney for Health Care Decisions (DPA) - This is a document indicating the patient’s choice of surrogate in the event that the patient loses decisional capacity. It must be filled out by the patient while he/she has intact decisional capacity. In many states, including Pennsylvania, it must also be signed by the designated surrogate. This is also referred to as “health care proxy” or “designated surrogate.” Designating a DPA helps moderate disagreements among family members and clarify who makes the decisions for the patient. Without such a document, there can be confusion over who should make decisions for the patient. In the absence of a DPA, many institutions will choose the next of kin to be the surrogate decision-maker for a patient who lacks the capacity to make his/her own decisions. DPA is essential if the person you wish to make decisions for you is not your next of kin or if you do not have any close relatives (for example, a parent might be chosen over a live-in partner, or an individual’s spouse might be chosen even though the couple had been separated).

Living Will - This is "a document executed by an adult which indicates his or her preferences regarding the initiation, continuation, withholding, or withdrawing of medical treatment in the event that he or she loses decision-making capacity." (Ibid.) This helps the surrogate make decisions for the patient. It also promotes the patient’s actual wishes instead of someone else’s. Few people write living wills. It is difficult to anticipate future medical situations and what you might want at that time. However, these decisions are always difficult. Living wills provide support to loved ones by guiding them in your wishes and relieving some of their burden.

Under the federal Patient Self Determination Act, all health care institutions receiving Medicare or Medicaid funding:

1. must provide written information regarding his or her rights under state law to make decisions concerning medical care, including advance directives, to each adult receiving medical care through the provider or organization.

2. cannot condition the provision of care or discriminate against an individual based on whether or not the individual has executed an advance directive.

3. must comply with patients' advance directives in a way that is consistent with state law.

4. must note patients' records whether or not they have advance directives.

5. provide education about advance directives. (PSDA Interim Final Rule, 57 Federal Register 8194-8204 [3/06/96]).

Pennsylvania's Advance Directive for Health Care Act, allows an individual of sound mind who is 18 years or older (or has graduated from high school or is married) to execute an advance directive. It alsoincludes the following:

1. There is civil and criminal immunity for health care providers who follow the procedures set forth in the act.

2. There is no specific format for the advance directive.

3. The advance directive does not need to be notarized, but must be signed by the declarant or another on behalf of the declarant and witnessed by two adults.

4. The advance directive becomes operative when "a copy is provided to the attending physician and the declarant is determined by the attending physician to be incompetent and in a terminal condition or in a state of permanent unconsciousness." These prognoses must be confirmed by a second physician.

5. An advance directive can be revoked at any time and in any manner by the declarant regardless of his/her mental or physical condition. The revocation is effective upon communication to any health care provider by the declarant or a witness to the revocation.

6. Artificial nutrition and hydration are identified as forms of life-sustaining treatment and thus, may be withdrawn if requested by the patient in the advance directive.

7. Health care providers who feel morally unwilling to comply with the patient's advance directive can transfer care to another qualified health care provider who will comply if possible. But, if this is not feasible the health care provider must comply with the patient's advance directive.

8. Any pregnant woman who is incompetent and either terminally ill or permanently unconscious must be maintained on life support until the fetus can be safely delivered. However, there is no requirement to perform a pregnancy test.

There are three exceptions to this requirement. They hold if the attending physician and an obstetrician after an examination believe that ...

1. life-sustaining treatment, nutrition, and hydration would not result in the development and live birth of the fetus;

2. such treatment would be harmful to the woman;

or

3. the treatment would cause her pain that medication could not alleviate.

Under such circumstances, the living will can be followed.

9. The medical command physician may authorize emergency medical personnel to honor an advance directive. The medical command physician may base this decision on prior notification that a valid and operative advance directive exists or the notification by emergency medical services personnel that they have been presented with a signed, advance directive. Emergency medical services personnel must immediately notify the medical command physician when presented with a living will, signed by the patient, or other authorized person.

10. "Emergency medical services personnel confronted with any conflicting information regarding the patient's wishes for life-sustaining treatment shall act according to the accepted treatment protocols and standards appropriate to their level of certification.( 5413)"

(Advance Directive for Health Care Act, 1992, April 16, P.L. 108, No. 24, 5402-5501)