(c) When
a surrogate health care decision maker is needed to make a nonemergent health
care decision for an individual who has an end-stage medical condition or is
permanently unconscious and who has not executed a valid living will that
governs the decision, the surrogate 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, a court has already appointed a guardian of the person to
make health care decisions on the individual's behalf, the guardian should make
the 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 medical 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.
(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 care
decisions, an available and willing health care representative should make the
health care decision.
(ii) In
descending order of priority, the following individuals 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.
(4)
Facility
director.
(i) In the absence of any
other appointed decision maker or willing next of kin, the facility director in
his discretion becomes the surrogate health care decision maker under section
417(c) of the MH/MR Act.
(ii)
Section 417(c) of the MH/MR Act 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.
(iii) The facility director may authorize
elective surgery and other treatment only with the advice of two physicians not
employed by the facility.
(iv) When
the facility director becomes the surrogate health care decision maker for an
individual who has an end-stage medical condition or is permanently
unconscious, the director shall 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.
(v) The facility director
must be informed of the decision to be made and gather information based on the
direct knowledge of those familiar with the individual.
(vi) In this manner, the facility director
will have sufficient information to make the decision that the individual would
make if able to do so.
(vii) For a
decision to withdraw treatment or life-sustaining care for a person who is not
competent who has an end-stage medical condition or is permanently unconscious,
the Department recommends a facility director seek judicial authorization prior
to the withdrawal of treatment or life-sustaining care due to a risk of
conflict of interest claims.
(viii)
For a DNR order for a person who is not competent who has an end-stage medical
condition or is permanently unconscious, the Department recommends a facility
director seek judicial authorization prior to requesting the issuance of a DNR
order due to a risk of conflict of interest claims.
(ix) Pending the judicial authorization under
subparagraphs (vii) and (viii), the Department recommends a facility director
direct that treatment or life-sustaining care be continued for a person who is
not competent who has an end-stage medical condition or is permanently
unconscious.
(x) 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.
(xi) In the event of a short-term absence of
the facility director, the director may assign a designee to perform these
functions.
(xii) The assigned
designee may only be a person authorized to perform the facility director's
functions in the director's absence.