A Guide to Creating an Advance Directive
January 19, 2022

An advance directive, also referred to as a living will, is a document that states your health care wishes if a time comes when you cannot decide for yourself. Advance directives cannot be used while a patient is still capable of making their own decisions.

In Pennsylvania, two types of documents are recognized relating to health care decision making: a durable power of attorney for health care decisions and a living will. Read this article to learn everything there is to know about these two.

Durable Power of Attorney for Healthcare Decisions (DPA)

This document indicates a person’s choice for surrogate (agent) in the event that they lose their capacity to make decisions. The patient must fill it out while they still have the capacity to make decisions.  Once signed, it can be used in the event of a temporary incapacity or in the event of a permanent incapacity.

Drafting a DPA is critical to prevent potential disagreements among family members and clearly state who will have the power to make decisions for an individual should this time come.

Skipping the DPA can lead to confusion and quarreling over who should decide for the patient. Many health care institutions will look to the next of kin as the surrogate decision-maker if a DPA is absent. This is why a DPA becomes especially important if the person you want to decide for you is not your next of kin.

Living Will

On the other hand, living wills are executed to specify preferences when it comes end of life medical treatments.  In Pennsylvania, the living will can only be used if the person is permanently unconscious and has an end stage medical condition.  If one of these is missing, the DPA is used instead.  This document is essential to let the surrogate make necessary decisions for the patient and allow the patient’s wishes to be fulfilled instead of someone else’s.

Many people opt not write their living wills because it is difficult to anticipate one’s medical circumstances.  However, no matter how difficult these kinds of decisions may be, you need to act on them for you and your loved ones.  Living wills are your chance to ease the burden on your family as they will know that are carrying out your wishes and do not have to feel guilty about the end of life decisions that are being made.

Pennsylvania has a very detailed Advance Directive for Health Care Act which lets any individual 18 years of age and above and of sound mind to execute their advance directive (living will).

Some relevant provisions include:

  • Healthcare practitioners who follow the conditions outlined and have criminal and civil immunity.
  • Two physicians must confirm that the patient is permanently unconscious and has an end stage medical condition.
  • A declarant can revoke their advance directive in any manner and at any time, regardless of their physical or mental condition. This revocation will take effect as soon as the declarant or their witness relays it to any healthcare provider.
  • A pregnant woman incapable of making decisions or terminally ill should be sustained with life support until her fetus is delivered. Performing a pregnancy test is not required except in cases where the life of either fetus or mother will be in danger.

Some living wills ask that no treatment occur, some ask that every treatment occur and some are a combination asking for some items but not others.  Each living will is unique as each person’s end of life journey is unique.

Patient Self Determination Act

Under this federal act, all healthcare institutions with Medicaid or Medicare funding should do the following:

  • Provide written information about the rights under state law to make decisions on healthcare, including advance directives, for a patient
  • Not put conditions on the provision of care or discriminate against a patient, regardless of whether they executed an advance directive or not
  • Comply with a patient’s advance directive in a manner that is consistent with state law
  • Note a patient’s records whether they executed their advance directive or not
  • Provide education on advance directives

Hire a Will Attorney in Pennsylvania

Writing an advance directive is a helpful preparation that can benefit you and your loved ones in the future. Make sure to work with reliable professionals, such as a qualified will attorney, who can guide you in drafting and executing yours.

If you are looking for a wills and estates lawyer in Pennsylvania, turn to Daley Zucker. We take pride in having experienced attorneys in Harrisburg, PA, who are proficient in family law, estate planning, elder law, and more. Get in touch with us today.

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