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Choosing A Substitute Health Care Decision Maker

Navigating health care decisions can be a complex and sensitive task, especially when the individual involved is unable to express their preferences. In such situations, the role of a Substitute Health Care Decision Maker becomes crucial.

A Substitute Health Care Decision Maker is a person who is authorized by law to make health care decisions on behalf of another person in particular circumstances. The health care or end-of-life decisions of an individual who is competent should be honored. Competent individuals should be encouraged to make advance health care directives which will become operative if they lose competency. Advance health care directives should be reviewed and updated in writing periodically. An advance health care directive is a living will, a health care power of attorney, or a combination of the two documents. These documents set forth parameters for health care decisions to be made in the event the principal becomes incompetent.

What is a Health Care Representative

A Health Care Representative is a person authorized by Pennsylvania law to make certain health care decisions for an individual who does not have a guardian, has not executed a health care advance directive, or whose health care agent is not reasonably available or is not willing to act.
In the absence of a health care agent, designated under a valid health care advance directive, or a court-appointed guardian of the person with authority to make health care decisions, the following persons, in descending order of priority, can act as health care representatives for individuals:
  • A person chosen by the individual (in a signed writing or by informing the individual’s attending
    physician) while the individual was of sound mind
  • The individual’s spouse (unless a divorce action is pending)
  • The individual’s adult child
  • The individual’s parent
  • The individual’s adult brother or sister
  • The individual’s adult grandchild
  • An adult who has knowledge of the individual’s preferences and values

What is the Difference Between a Health Care Representative and a Health Agent

The Commonwealth of Pennsylvania delineates some legal differences in authority between medical representatives and medical agents (under Act 169), specifically regarding the withdrawal of life-sustaining treatment (LST). An agent, i.e. someone appointed by the patient, has authority equal to the patient him/herself, including the authority to withdraw LST at any time. A representative, i.e. a next of kin or guardian not designated by the patient, may withdraw LST ONLY if the patient is permanently unconscious or immanently dying as documented by a treating physician.

Identifying the Appropriate Representative

There are some complexities to the hierarchy delineated by Act 169. Any adult children who are not the biological or legal children of the patient’s spouse have equal legal authority as the spouse to act as surrogates. In other words, adult children from previous relationships are equal to the current spouse in the Act 169 hierarchy. Whenever there are multiple individuals in the same category, they all have equal authority as surrogates. This requires decisions to be made by either consensus or majority rule. It is possible for the group to elect a spokesperson, but this must be clearly documented in the medical record. It is also possible for one individual in a given category to petition the Court to be appointed guardian of the person, which would then give that individual authority over all others in their Act 169 category.

Who Should Not Be A Health Care Representative

Those who cannot act as either a Health Care Agent or a Health Care Representative are:
  • A health care provider – if related, they can serve
  • A physician – if related, they can serve
  • A residential provider
There is serious question as to whether a “facility director” may become a person’s health care decision maker even though this is permitted under the MH/MR Act. Approach this option carefully. In the rare circumstance that the individual with an end-stage medical condition or who is permanently unconscious does not have a living will, a health care agent, a court appointed guardian, an available and willing health care representative, or a “facility director”, then a court should appoint a guardian with the authority to act. Appropriate medical care should be provided pending the appointment of a guardian.

Concluding Thoughts

The appointment of a Substitute Health Care Decision Maker is a critical aspect of ensuring that an individual’s health care preferences are honored when they are no longer able to communicate them. From Health Care Agents to Health Care Representatives, understanding the legal framework and potential complexities is vital. The intricacies of Act 169 in Pennsylvania emphasize the need for clarity and documentation in determining the appropriate decision-maker. 

Richard Howard

About the author: Rich Howard has been the President of River Communities Fiduciary Services since its inception in 2016.

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