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Agent Under Power of Attorney (cont.)

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The law governing Powers of Attorney (POA) in Pennsylvania changed when Act 95 was enacted on July 2, 2014.  Chapter 56 of Title 20 of the Pennsylvania Consolidated Statutes, the statute that governs powers of attorney for financial and property transactions was modified. The required modifications and changes took effect on January 1, 2015.

 

Because the Pennsylvania legislature did not create a form for a financial power of attorney, nor is the term “form” recognized in relation to Pennsylvania POA’s,  Pennsylvania law provides a Notice, and an acknowledgment provision, that must be included at the beginning of any POA dated January 1, 2015 or after.  This Notice can be found in Title 20 of the Statutes of Pennsylvania Consolidated Statutes, Section 5601 (c), and the acknowledgment can be found in Section 5601 (d).  Additionally, Pennsylvania POA’s must be dated, signed by the principal, witnessed by two adults, and notarized (all signatures must be applied in the presence of the notary).  If the principal is not able to write, he or she may sign by making a mark (such as an "X") or by directing another person to sign on his or her behalf.  If this is done, there must be two adult witnesses to the signature. The notary public may not be the agent.

 

The witness requirements for a power of attorney in Pennsylvania are that a witness must be at least 18 years of age but may not be the agent or a person who signed the POA on behalf of the principal.

Based on the preceding information, and the fact that no standard form is available or permitted in Pennsylvania, RCFS strongly recommends that an attorney always be involved in the creation of any legal document including Powers of Attorney.  While it is tempting to access information online and self-create or self-modify existing forms from other states believing an acceptable document has been produced, if not properly prepared and executed, the document may not be accepted when presented at the time of need.

 

Substitute Healthcare Decision Makers (cont.)

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Health Care Agent

A Health Care Agent is a person designated to make health care decisions for another individual in a health care advance directive.  Types of health care advance directives…

A Health Care Power of Attorney is a document in which an individual (known as the principal) designates one or more persons (known as the health care agents) to make health care decisions for the individual if they are determined to be incompetent to make those decisions regardless of whether the individual has an end-stage medical condition or is permanently unconscious.

A Living Will – (Pennsylvania Declaration) – is a document that expresses the wishes and instructions of an individual (known as the principal) regarding specific types of health care treatment in the event the individual becomes incompetent and has an end-stage medical condition or is permanently unconscious.

Copies of these documents should be given to the individual’s attending physicians and hospital.

 

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

 

Health Care Representative vs. Agent

The Commonwealth of PA 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.

 

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.

 

 

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As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

Support RCFS on Amazon:

As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

Support RCFS on Amazon:

As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

Support RCFS on Amazon:

© Copyright 2020  by RCFS, Inc. All rights reserved.

As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

As your one-stop resource, we work hand in hand with individuals with disabilities, their families, medical providers, attorneys and social workers. Let us help you find long-term security and support for you or your loved one’s assets and future.

Support RCFS on Amazon: