(c) When a surrogate health care decision
maker is needed to make a nonemergent health care decision for an individual
who neither has an end-stage medical condition nor is permanently unconscious,
the health care decision maker should be chosen in the following order:
(2)
Guardian of the individual's
person.
(i) If, under Pennsylvania's
guardianship statute (20 Pa.C.S. Chapter 55 (relating to incapacitated
persons)), a court has already appointed a guardian to make health care
decisions on the individual's behalf, the guardian should make those decisions
for the individual.
(ii) If a
person who executed a valid health care power of attorney is later adjudicated
an incapacitated person and a guardian of the person is appointed by the court
to make health care decisions, the health care agent named in the health care
power of attorney is accountable to both the guardian and the
individual.
(iii) The guardian has
the same power to revoke or amend the appointment of a health care agent as the
individual would have if he were not incapacitated, but may not revoke or amend
the instructions in an advance health care directive absent judicial
authorization. See
20 Pa.C.S. §
5460(a) (relating to
relation of health care agent to court-appointed guardian and other
agents).
(3)
Health care representative.
(i) In the absence of a health care agent
designated under a valid advance health care directive or a court-appointed
guardian of the person with authority to make health decisions, an available
and willing health care representative should make the health care
decision.
(ii) In descending order
of priority, the following persons can act as health care representatives for
individuals:
(A) 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.
(B) The individual's spouse (unless a divorce
action is pending).
(C) The
individual's adult child.
(D) The
individual's parent.
(E) The
individual's adult brother or sister.
(F) The individual's adult
grandchild.
(G) An adult who has
knowledge of the individual's preferences and values. See 20 Pa.C.S. Chapter
54, Subchapter C.
(4)
Facility director.
(i) In the absence of any other appointed
decision maker or willing next of kin, the facility director becomes the health
care decision maker under the MH/MR Act.
(ii) Under the MH/MR Act, the director of a
facility may, with the advice of two physicians not employed by the facility,
determine when elective surgery should be performed upon any mentally disabled
person admitted or committed to the facility when the person does not have a
living parent, spouse, issue, next of kin or legal guardian as fully and to the
same effect as if the director had been appointed guardian and had applied to
and received the approval of an appropriate court therefor.
(iii) Section 417(c) of the MH/MR Act
(50
P.S. §
4417(c))
specifies that the facility director may authorize elective surgery, but the
Department has consistently interpreted that section to recognize that the
facility director's authority also encompasses health care decisions
generally.
(iv) The facility
director may authorize elective surgery and other treatment only with the
advice of two physicians not employed by the facility.
(v) When the facility director becomes the
surrogate health care decision maker for an individual who does not have an
end-stage medical condition or is not permanently unconscious, the director
should first review the individual's support plan and relevant medical history
and records to help identify the individual's medical status historically and
immediately prior to making a surrogate health care decision.
(vi) The facility director should be informed
of the decision to be made and gather information based on the direct knowledge
of those familiar with the individual.
(vii) In this manner, the facility director
will have sufficient information to make the decision that the individual would
make if able to do so.
(viii) Even
when another surrogate health care decision maker is identified, the facility
director should continue to monitor the situation to ensure that decisions are
made with the best interest of the individual as the paramount
concern.
(ix) In the event of a
short-term absence of the facility director, the director may assign a designee
to perform these functions.
(x) The
assigned designee may only be a person authorized to perform the facility
director's functions in the director's absence.
(xi) The facility director may not authorize
a DNR order for a person who is not competent and does not have an end-stage
medical condition.