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                                                      PRINTER'S NO. 2739

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 2036 Session of 2003


        INTRODUCED BY KENNEY, KOTIK, PAYNE, BEBKO-JONES, BELFANTI,
           BENNINGHOFF, BUNT, CORRIGAN, COY, CURRY, DeWEESE, D. EVANS,
           FLEAGLE, GEIST, HARHAI, HARHART, HERMAN, HESS, JAMES, KELLER,
           KIRKLAND, LEACH, MACKERETH, MAITLAND, McGEEHAN, McGILL,
           MUNDY, MYERS, NICKOL, O'NEILL, PALLONE, REICHLEY, ROSS,
           SANTONI, SATHER, SEMMEL, SOLOBAY, STURLA, J. TAYLOR, THOMAS,
           TIGUE, TRUE, VANCE, WALKO, WATSON, WEBER AND YOUNGBLOOD,
           OCTOBER 8, 2003

        REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
           OCTOBER 8, 2003

                                     AN ACT

     1  Amending Title 20 (Decedents, Estates and Fiduciaries) of the
     2     Pennsylvania Consolidated Statutes, providing for mental
     3     health care declarations and powers of attorney.

     4     The General Assembly of the Commonwealth of Pennsylvania
     5  hereby enacts as follows:
     6     Section 1.  Title 20 of the Pennsylvania Consolidated
     7  Statutes is amended by adding a chapter to read:
     8                             CHAPTER 58
     9                         MENTAL HEALTH CARE
    10  Subchapter
    11     A.  General Provisions
    12     B.  Mental Health Care Declarations
    13     C.  Mental Health Care Powers of Attorney
    14                            SUBCHAPTER A
    15                         GENERAL PROVISIONS

     1  Sec.
     2  5801.  Applicability.
     3  5802.  Definitions.
     4  5803.  Legislative findings and intent.
     5  5804.  Compliance.
     6  5805.  Liability.
     7  5806.  Penalties.
     8  5807.  Rights and responsibilities.
     9  5808.  Combining mental health care instruments.
    10  § 5801.  Applicability.
    11     (a)  General rule.--This chapter applies to mental health
    12  care declarations and mental health care powers of attorney.
    13     (b)  Preservation of existing rights.--The provisions of this
    14  chapter shall not be construed to impair or supersede any
    15  existing rights or responsibilities not addressed in this
    16  chapter.
    17  § 5802.  Definitions.
    18     The following words and phrases when used in this chapter
    19  shall have the meanings given to them in this section unless the
    20  context clearly indicates otherwise:
    21     "Attending physician."  A physician who has primary
    22  responsibility for the treatment and care of the declarant or
    23  principal.
    24     "Declarant."  An individual who makes a declaration in
    25  accordance with this chapter.
    26     "Declaration."  A writing made in accordance with this
    27  chapter that expresses a declarant's wishes and instructions for
    28  mental health care and mental health care directions and which
    29  may contain other specific directions.
    30     "Mental health care."  Any care, treatment, service or
    20030H2036B2739                  - 2 -     

     1  procedure to maintain, diagnose, treat or provide for mental
     2  health, including any medication program and therapeutical
     3  treatment.
     4     "Mental health care agent."  An individual designated by a
     5  principal in a mental health care power of attorney.
     6     "Mental health care power of attorney."  A writing made by a
     7  principal designating an individual to make mental health care
     8  decisions for the principal.
     9     "Mental health care provider."  A person who is licensed,
    10  certified or otherwise authorized by the laws of this
    11  Commonwealth to administer or provide mental health care in the
    12  ordinary course of business or practice of a profession.
    13     "Mental health treatment professional."  A person trained and
    14  licensed in psychiatry, social work, psychology or nursing who
    15  has a graduate degree and clinical experience.
    16     "Principal."  An individual who makes a mental health care
    17  power of attorney in accordance with this chapter.
    18  § 5803.  Legislative findings and intent.
    19     (a)  Intent.--This chapter provides a means for competent
    20  adults to control their mental health care either directly
    21  through instructions written in advance or indirectly through a
    22  mental health care agent.
    23     (b)  Presumption not created.--This chapter shall not be
    24  construed to create any presumption regarding the intent of an
    25  individual who has not executed a declaration or mental health
    26  care power of attorney to consent to the use or withholding of
    27  treatment.
    28     (c)  Findings in general.--The General Assembly finds that
    29  all capable adults have a qualified right to control decisions
    30  relating to their own mental health care.
    20030H2036B2739                  - 3 -     

     1  § 5804.  Compliance.
     2     (a)  Duty to comply.--
     3         (1)  An attending physician and mental health care
     4     provider shall comply with mental health declarations and
     5     powers of attorney.
     6         (2)  If an attending physician or other mental health
     7     care provider cannot in good conscience comply with a
     8     declaration or mental health care decision of a mental health
     9     care agent or if the policies of a mental health care
    10     provider preclude compliance with a declaration or mental
    11     health care decision of a mental health care agent,
    12     immediately upon receipt of the declaration or power of
    13     attorney, and as soon as any possibility of noncompliance
    14     becomes apparent, the attending physician or mental health
    15     care provider shall so inform the following:
    16             (i)  The declarant, if the declarant is competent.
    17             (ii)  The substitute named in the declaration, if the
    18         declarant is incompetent.
    19             (iii)  The guardian or other legal representative of
    20         the declarant, if the declarant is incompetent and a
    21         substitute is not named in the declaration.
    22             (iv)  The mental health care agent of the principal.
    23     (b)  Transfer.--An attending physician or mental health care
    24  provider under subsection (a)(1) shall make every reasonable
    25  effort to assist in the transfer of the declarant or principal
    26  to another physician or mental health care provider who will
    27  comply with the declaration or mental health care decision of
    28  the mental health care agent.
    29  § 5805.  Liability.
    30     (a)  General rule.--A person who is a physician, another
    20030H2036B2739                  - 4 -     

     1  mental health care provider or another person who acts in good
     2  faith and consistent with this chapter may not be subject to
     3  criminal or civil liability, discipline for unprofessional
     4  conduct or administrative sanctions and may not be found to have
     5  committed an act of unprofessional conduct by the State Board of
     6  Medicine or the State Board of Osteopathic Medicine as a result
     7  of any of the following:
     8         (1)  Complying with a direction or decision of an
     9     individual who the person believes in good faith has
    10     authority to act as a principal's mental health care agent so
    11     long as the direction or decision is not clearly contrary to
    12     the terms of the mental health care power of attorney.
    13         (2)  Refusing to comply with a direction or decision of
    14     an individual based on a good faith belief that the
    15     individual lacks authority to act as a principal's mental
    16     health care agent.
    17         (3)  Complying with a mental health care power of
    18     attorney under the assumption that it was valid when made and
    19     has not been amended or revoked.
    20         (4)  Disclosing mental health care information to another
    21     person based upon a good faith belief that the disclosure is
    22     authorized, permitted or required by this chapter.
    23     (b)  Same effect as if dealing with principal.--Any attending
    24  physician, mental health care provider and other person who acts
    25  under subsection (a) shall be protected and released to the same
    26  extent as if dealing directly with a competent principal.
    27     (c)  Good faith of mental health care agent.--A mental health
    28  care agent who acts according to the terms of a mental health
    29  care power of attorney may not be subject to civil or criminal
    30  liability for acting in good faith for a principal or failing in
    20030H2036B2739                  - 5 -     

     1  good faith to act for a principal.
     2  § 5806.  Penalties.
     3     (a)  Offense defined.--A person commits a felony of the third
     4  degree by willfully:
     5         (1)  Concealing, canceling, altering, defacing,
     6     obliterating or damaging a declaration without the consent of
     7     the declarant.
     8         (2)  Concealing, canceling, altering, defacing,
     9     obliterating or damaging a mental health care power of
    10     attorney or any amendment or revocation thereof without the
    11     consent of the principal.
    12         (3)  Causing a person to execute a declaration or power
    13     of attorney under this chapter by undue influence, fraud or
    14     duress.
    15         (4)  Falsifying or forging a mental health care power of
    16     attorney or declaration or any amendment or revocation
    17     thereof, the result of which is a direct change in the mental
    18     health care provided to the principal.
    19     (b)  Removal and liability.--An agent who willfully fails to
    20  comply with a power of attorney may be removed and sued for
    21  actual damages.
    22  § 5807.  Rights and responsibilities.
    23     (a)  Declarants and principals.--Persons who execute a
    24  declaration or a power of attorney shall have the following
    25  rights and responsibilities:
    26         (1)  Persons are presumed capable of making mental health
    27     decisions unless they are adjudicated incapacitated,
    28     involuntarily committed or found to be incapable of making
    29     mental health decisions after examination by a psychiatrist
    30     and one of the following: another psychiatrist, psychologist,
    20030H2036B2739                  - 6 -     

     1     family physician, attending physician or mental health
     2     treatment professional. Whenever possible, at least one of
     3     the decision makers shall be a treating professional of the
     4     declarant or principal.
     5         (2)  Persons shall be required to notify their mental
     6     health care provider of the existence of any declaration or
     7     power of attorney.
     8         (3)  Periodically review their declarations or powers of
     9     attorney.
    10         (4)  Give notice of amendment and revocation to
    11     providers, agents and guardians, if any.
    12     (b)  Providers.--Mental health treatment providers shall have
    13  the following rights and responsibilities:
    14         (1)  Inquire as to the existence of declarations or
    15     powers of attorney for persons in their care.
    16         (2)  Inform persons who are being discharged from
    17     treatment about the availability of mental health
    18     declarations and powers of attorney as part of discharge
    19     planning.
    20         (3)  Not discriminate against persons based on whether
    21     they have or on the contents of mental health declarations or
    22     powers of attorney.
    23         (4)  Not require declarations or powers of attorney as
    24     conditions of treatment.
    25  § 5808.  Combining mental health care instruments.
    26     (a)  General rule.--A declaration and mental health care
    27  power of attorney may be combined into one mental health care
    28  document.
    29     (b)  Form.--A combined declaration and mental health care
    30  power of attorney may be in the following form or any other
    20030H2036B2739                  - 7 -     

     1  written form which contains the information required under
     2  Subchapters B (relating to mental health care declarations) and
     3  C (relating to mental health care powers of attorney):
     4              Combined Mental Health Care Declaration
     5                     and Power of Attorney Form
     6     Part I.  Introduction.
     7     I,               , being of sound mind, willfully and
     8     voluntarily make this declaration and power of attorney
     9     regarding my mental health care.
    10     I understand that mental health care includes any care,
    11     treatment, service or procedure to maintain, diagnose, treat
    12     or provide for mental health, including any medication
    13     program and therapeutic treatment. Mental health care does
    14     not include electroconvulsive therapy, laboratory trials or
    15     research, or commitment to a mental health facility unless
    16     specifically provided for in this document. Mental health
    17     care does not include psychosurgery or termination of
    18     parental rights.
    19     I understand that my incapacity will be determined by
    20     examination by a psychiatrist and one of the following:
    21     another psychiatrist, psychologist, family physician,
    22     attending physician or mental health treatment professional.
    23     Whenever possible, one of the decision makers will be one of
    24     my treating professionals.
    25     Part II.  Mental Health Care Declaration.
    26     A.  When this declaration becomes effective.
    27     This declaration becomes effective at the following
    28     designated time:
    29     ( ) When I am deemed incapable of making mental health care
    30     decisions.
    20030H2036B2739                  - 8 -     

     1     ( ) When the following condition is met:
     2                          (List condition)
     3     B.  Treatment preferences.
     4         1.  Choice of treatment facility.
     5     ( ) In the event that I require commitment to a psychiatric
     6     treatment facility, I would prefer to be admitted to the
     7     following facility:
     8                 (Insert name and address of facility)
     9     ( ) In the event that I require commitment to a psychiatric
    10     treatment facility, I do not wish to be committed to the
    11     following facility:
    12                 (Insert name and address of facility)
    13     I understand that my physician may have to place me in a
    14     facility that is not my preference.
    15         2.  Preferences regarding medications for psychiatric
    16     treatment.
    17     ( ) I do not consent to the use of any medications.
    18     ( ) I consent to the medications that my treating physician
    19     recommends with the following exception or limitation:
    20       (List medication and reason for exception or limitation)
    21     The exception or limitation applies to generic, brand name
    22     and trade name equivalents.
    23     ( ) I have designated an agent under the power of attorney
    24     portion of this document to make decisions related to
    25     medication.
    26         3.  Preferences regarding electroconvulsive therapy
    27     (ECT).
    28     ( ) I do not consent to the administration of
    29     electroconvulsive therapy.
    30     ( ) I consent to the administration of electroconvulsive
    20030H2036B2739                  - 9 -     

     1     therapy.
     2     ( ) I have designated an agent under the power of attorney
     3     portion of this document to make decisions related to
     4     electroconvulsive therapy.
     5         4.  Preferences for experimental studies or drug trials.
     6     ( ) I do not consent to participation in experimental
     7     studies.
     8     ( ) I consent to participation in experimental studies if my
     9     treating physician believes that the potential benefits to me
    10     outweigh the possible risks to me.
    11     ( ) I have designated an agent under the power of attorney
    12     portion of this document to make decisions related to
    13     experimental studies.
    14     ( ) I do not consent to participation in any drug trials.
    15     ( ) I consent to participation in drug trials if my treating
    16     physician believes that the potential benefits to me outweigh
    17     the possible risks to me.
    18     ( ) I have designated an agent under the power of attorney
    19     portion of this document to make decisions related to drug
    20     trials.
    21         5.  Additional instructions or information.
    22     Examples of other instructions or information that may be
    23     included:
    24         Activities that help or worsen symptoms.
    25         Type of intervention preferred in the event of a
    26             crisis.
    27         Mental and physical health history.
    28         Dietary requirements.
    29         Religious preferences.
    30         Temporary custody of children.
    20030H2036B2739                 - 10 -     

     1         Family notification.
     2         Visitors that you do or do not want to have.
     3         Limitations on the release or disclosure of
     4             mental health records.
     5         Instructions related to preferences if you are
     6             pregnant.
     7         Other matters of importance.
     8     C.  Revocation.
     9     This declaration may be revoked in whole or in part in the
    10     following manner:
    11     ( ) At any time, either orally or in writing, as long as I
    12     have not been found to be incapable of making mental health
    13     decisions.
    14     My revocation will be effective upon communication to my
    15     attending physician or other mental health care provider,
    16     either by me or a witness to my revocation. If I choose to
    17     revoke a particular instruction contained in this declaration
    18     in the manner specified, I understand that the other
    19     instructions contained in this declaration will remain
    20     effective until:
    21         (1)  I revoke this declaration in its entirety;
    22         (2)  I make a new combined mental health care declaration
    23     and power of attorney; or
    24         (3)  until the date I have specified as the termination
    25     date.
    26     ( ) This declaration will remain effective until the time
    27     specified for termination.
    28     D.  Termination.
    29     I understand that I may specify a date upon which this
    30     declaration will automatically terminate.
    20030H2036B2739                 - 11 -     

     1     ( ) This declaration will automatically terminate upon the
     2     date specified, unless I am deemed incapable of making mental
     3     health care decisions at the time that this declaration would
     4     expire.
     5                           (Specify date)
     6     ( ) This declaration will continue until I revoke it in its
     7     entirety or I make a new mental health care declaration or
     8     mental health care power of attorney.
     9     E.  Preference as to a court-appointed guardian.
    10     I understand that I may nominate a guardian of my person for
    11     consideration by the court if incapacity proceedings are
    12     commenced under 20 Pa.C.S. § 5511. I understand that the
    13     court will appoint a guardian in accordance with my most
    14     recent nomination except for good cause or disqualification.
    15     In the event a court decides to appoint a guardian, I desire
    16     the following person to be appointed:
    17       (Insert name, address, telephone number of the designated
    18                              person)
    19     ( ) The appointment of a guardian of my person will not give
    20     the guardian the power to revoke, suspend or terminate this
    21     declaration.
    22     ( ) Upon appointment of a guardian, I authorize the guardian
    23     to revoke, suspend or terminate this declaration.
    24     Part III.  Mental Health Care Power of Attorney.
    25     I,                , being of sound mind, authorize my
    26     designated health care agent to make certain decisions on my
    27     behalf regarding my mental health care. If I have not
    28     expressed a choice in this document or in the accompanying
    29     declaration, I authorize my agent to make the decision that
    30     my agent determines is the decision I would make if I were
    20030H2036B2739                 - 12 -     

     1     competent to do so.
     2     A.  Designation of agent.
     3     I hereby designate and appoint the following person as my
     4     agent to make mental health care decisions for me as
     5     authorized in this document. This authorization applies only
     6     to mental health decisions that are not addressed in the
     7     accompanying signed declaration.
     8     (Insert name of designated person)
     9     Signed:
    10     (My name, address, telephone number)
    11     (Witnesses signatures)
    12     (Insert names, addresses, telephone numbers of witnesses)
    13     Agent's acceptance:
    14     I hereby accept designation as mental health care agent for
    15     (Insert name of declarant)
    16     Agent's signature:
    17     (Insert name, address, telephone number of designated person)
    18     B.  Designation of alternative agent.
    19     In the event that my first agent is unavailable or unable to
    20     serve as my mental health care agent, I hereby designate and
    21     appoint the following individual as my alternative mental
    22     health care agent to make mental health care decisions for me
    23     as authorized in this document:
    24     (Insert name of designated person)
    25     Signed:
    26     (My name, address, telephone number)
    27     (Witnesses signatures)
    28     (Insert names, addresses, telephone numbers of witnesses)
    29     Alternative agent's acceptance:
    30     I hereby accept designation as alternative mental health care
    20030H2036B2739                 - 13 -     

     1     agent for (Insert name of declarant)
     2     Alternative agent's signature:
     3     (Insert name, address, telephone number of alternative agent)
     4     C.  When this power of attorney become effective.
     5     This power of attorney will become effective at the following
     6     designated time:
     7     ( ) When I am deemed incapable of making mental health care
     8     decisions.
     9     ( ) When the following condition is met:
    10                          (List condition)
    11     D.  Authority granted to my mental health care agent.
    12     I hereby grant to my agent full power and authority to make
    13     mental health care decisions for me consistent with the
    14     instructions and limitations set forth in this document. If I
    15     have not expressed a choice in this power of attorney, or in
    16     the accompanying declaration, I authorize my agent to make
    17     the decision that my agent determines is the decision I would
    18     make if I were competent to do so.
    19         (1)  Voluntary commitment.
    20     My agent ( ) does ( ) does not have the power to consent to
    21     having me admitted to a psychiatric treatment facility.
    22         (2)  Preferences regarding medications for psychiatric
    23     treatment.
    24     ( ) My agent is not authorized to consent to the use of any
    25     medications.
    26     ( ) My agent is authorized to consent to the use of any
    27     medications after consultation with my treating psychiatrist
    28     and any other persons my agent considers appropriate.
    29         (3)  Preferences regarding electroconvulsive therapy
    30     (ECT).
    20030H2036B2739                 - 14 -     

     1     ( ) My agent is not authorized to consent to the
     2     administration of electroconvulsive therapy.
     3     ( ) My agent is authorized to consent to the administration
     4     of electroconvulsive therapy.
     5         (4)  Preferences for experimental studies or drug trials.
     6     ( ) My agent is not authorized to consent to my participation
     7     in experimental studies.
     8     ( ) My agent is authorized to consent to my participation in
     9     experimental studies if, after consultation with my treating
    10     physician and any other individuals my agent deems
    11     appropriate, my agent believes that the potential benefits to
    12     me outweigh the possible risks to me.
    13     ( ) My agent is not authorized to consent to my participation
    14     in drug trials.
    15     ( ) My agent is authorized to consent to my participation in
    16     drug trials if, after consultation with my treating physician
    17     and any other individuals my agent deems appropriate, my
    18     agent believes that the potential benefits to me outweigh the
    19     possible risks to me.
    20     E.  Revocation.
    21     This power of attorney may be revoked in whole or in part in
    22     the following manner:
    23     ( ) At any time, either orally or in writing, as long as I
    24     have not been found to be incapable of making mental health
    25     decisions.
    26     My revocation will be effective upon communication to my
    27     attending physician or other mental health care provider,
    28     either by me or a witness to my revocation. If I choose to
    29     revoke a particular instruction contained in this power of
    30     attorney in the manner specified, I understand that the other
    20030H2036B2739                 - 15 -     

     1     instructions contained in this power of attorney will remain
     2     effective until:
     3         (1)  I revoke this power of attorney in its entirety;
     4         (2)  I make a new combined mental health care declaration
     5     and power of attorney; or
     6         (3)  until the date that I have specified as the
     7     termination date.
     8     ( ) This power of attorney will remain effective until the
     9     time specified for termination.
    10     F.  Termination.
    11     I also understand that I may specify a date upon which this
    12     power of attorney will automatically terminate.
    13     ( ) This power of attorney will automatically terminate upon
    14     the date specified unless I am deemed incapable of making
    15     mental health care decisions at the time that the power of
    16     attorney would expire.
    17                            (Specify date)
    18     ( ) This power of attorney will continue until I revoke it in
    19     its entirety or until I make a new combined mental health
    20     care declaration and power of attorney.
    21     I am making this combined mental health care declaration and
    22     power of attorney on the (insert day) day of (insert month),
    23     (insert year).
    24     My signature:
    25     (My name, address, telephone number)
    26     Witnesses signatures:
    27     (Names, addresses, telephone numbers of witnesses).
    28     If the principal making this combined mental health care
    29     declaration and power of attorney is unable to sign this
    30     document, another individual may sign on behalf of and at the
    20030H2036B2739                 - 16 -     

     1     direction of the principal.
     2     Signature of person signing on my behalf:
     3     Signature
     4     (Name, address, telephone number)
     5                            SUBCHAPTER B
     6                  MENTAL HEALTH CARE DECLARATIONS
     7  Sec.
     8  5821.  Short title of subchapter.
     9  5822.  Execution.
    10  5823.  Form.
    11  5824.  Operation.
    12  5825.  Revocation.
    13  5826.  Amendment.
    14  § 5821.  Short title of subchapter.
    15     This subchapter shall be known and may be cited as the
    16  Advance Directive for Mental Health Care Act.
    17  § 5822.  Execution.
    18     (a)  Who may make.--An individual who is at least 18 years of
    19  age and has not been deemed incapacitated pursuant to section
    20  5511 (relating to petition and hearing; independent evaluation)
    21  or severely mentally disabled pursuant to section 301 of the act
    22  of July 9, 1976 (P.L.817, No.143), known as the Mental Health
    23  Procedures Act, may make a declaration governing the initiation,
    24  continuation, withholding or withdrawal of mental health
    25  treatment.
    26     (b)  Requirements.--A declaration must be:
    27         (1)  Dated and signed by the declarant by signature or
    28     mark or by another individual on behalf of and at the
    29     direction of the declarant.
    30         (2)  Witnessed by two individuals, each of whom must be
    20030H2036B2739                 - 17 -     

     1     at least 18 years of age.
     2     (c)  Witnesses.--
     3         (1)  An individual who signs a declaration on behalf of
     4     and at the direction of a declarant may not witness the
     5     declaration.
     6         (2)  A mental health care provider and its agent may not
     7     sign a declaration on behalf of and at the direction of a
     8     declarant if the mental health care provider or agent
     9     provides mental health care services to the declarant.
    10  § 5823.  Form.
    11     A declaration may be in the following form or any other
    12  written form that expresses the wishes of a declarant regarding
    13  the initiation, continuation or refusal of mental health
    14  treatment and may include other specific directions, including,
    15  but not limited to, designation of another individual to make
    16  mental health treatment decisions for the declarant if the
    17  declarant is incapable of making mental health decisions:
    18                  Mental Health Care Declaration.
    19     I,                  , being of sound mind, willfully and
    20     voluntarily make this declaration regarding my mental health
    21     care.
    22     I understand that mental health care includes any care,
    23     treatment, service or procedure to maintain, diagnose, treat
    24     or provide for mental health, including any medication
    25     program and therapeutic treatment. Mental health care does
    26     not include electroconvulsive therapy, laboratory trials or
    27     research, or commitment to a mental health facility unless
    28     specifically provided for in this document. Mental health
    29     care does not include psychosurgery or termination of
    30     parental rights.
    20030H2036B2739                 - 18 -     

     1     I understand that my incapacity will be determined by
     2     examination by a psychiatrist and one of the following:
     3     another psychiatrist, psychologist, family physician,
     4     attending physician or mental health treatment professional.
     5     Whenever possible, one of the decision makers will be one of
     6     my treating professionals.
     7     A.  When this declaration becomes effective.
     8     This declaration becomes effective at the following
     9     designated time:
    10     ( ) When I am deemed incapable of making mental health care
    11     decisions.
    12     ( ) When the following condition is met:
    13                          (List condition)
    14     B.  Treatment preferences.
    15         1.  Choice of treatment facility.
    16     ( ) In the event that I require commitment to a psychiatric
    17     treatment facility, I would prefer to be admitted to the
    18     following facility:
    19               (Insert name and address of facility)
    20     ( ) In the event that I require commitment to a psychiatric
    21     treatment facility, I do not wish to be committed to the
    22     following facility:
    23               (Insert name and address of facility)
    24     I understand that my physician may have to place me in a
    25     facility that is not my preference.
    26         2.  Preferences regarding medications for psychiatric
    27     treatment.
    28     ( ) I do not consent to the use of any medications.
    29     ( ) I consent to the medications that my treating physician
    30     recommends with the following exception or limitation:
    20030H2036B2739                 - 19 -     

     1      (List medication and reason for exception or limitation)
     2     This exception or limitation applies to generic, brand name
     3     and trade name equivalents.
     4         3.  Preferences regarding electroconvulsive therapy
     5     (ETC).
     6     ( ) I do not consent to the administration of
     7     electroconvulsive therapy.
     8     ( ) I consent to the administration of electroconvulsive
     9     therapy.
    10         4.  Preferences for experimental studies or drug trials.
    11     ( ) I do not consent to participation in experimental
    12     studies.
    13     ( ) I consent to participation in experimental studies if my
    14     treating physician believes that the potential benefits to me
    15     outweigh the possible risks to me.
    16     ( )  I do not consent to participation in any drug trials.
    17     ( )  I consent to participation in drug trials if my treating
    18     physician believes that the potential benefits to me outweigh
    19     the possible risks to me.
    20         5.  Additional instructions or information:
    21     Examples of other instructions or information that may be
    22     included:
    23         Activities that help or worsen symptoms.
    24         Type of intervention preferred in the event of a
    25             crisis.
    26         Mental and physical health history.
    27         Dietary requirements.
    28         Religious preferences.
    29         Temporary custody of children.
    30         Family notification.
    20030H2036B2739                 - 20 -     

     1         Visitors that you do or do not want to have.
     2         Limitations on the release or disclosure of mental
     3             health records.
     4         Instructions related to preferences if you are
     5             pregnant.
     6         Other matters of importance.
     7     C.  Revocation.
     8     This declaration may be revoked in whole or in part in the
     9     following manner:
    10     ( ) At any time, either orally or in writing, as long as I
    11     have not been found to be incapable of making mental health
    12     decisions.
    13     My revocation will be effective upon communication to my
    14     attending physician or other mental health care provider,
    15     either by me or a witness to my revocation. If I choose to
    16     revoke a particular instruction contained in this declaration
    17     in the manner specified, I understand that the other
    18     instructions contained in this declaration will remain
    19     effective until:
    20         (1)  I revoke this declaration in its entirety;
    21         (2)  I make a new mental health care declaration; or
    22         (3)  until the date I have specified as the termination
    23     date.
    24     ( ) This declaration will remain effective until the time
    25     specified for termination.
    26     D.  Termination.
    27     I understand that I may specify a date upon which this
    28     declaration will automatically terminate.
    29     ( ) This declaration will automatically terminate upon the
    30     date specified unless I am deemed incapable of making mental
    20030H2036B2739                 - 21 -     

     1     health care decisions at the time that the declaration would
     2     expire.
     3                            (Specify date)
     4     ( ) This declaration will continue until I revoke it in its
     5     entirety or I make a new mental health care declaration.
     6     E.  Preference as to a court-appointed guardian.
     7     I understand that I may nominate a guardian of my person for
     8     consideration by the court if incapacity proceedings are
     9     commenced pursuant to 20 Pa.C.S. § 5511. I understand that
    10     the court will appoint a guardian in accordance with my most
    11     recent nomination except for good cause or disqualification.
    12     In the event a court decides to appoint a guardian, I desire
    13     the following person to be appointed:
    14              (Insert name, address and telephone number
    15                         of designated person)
    16     ( ) The appointment of a guardian of my person will not give
    17     the guardian the power to revoke, suspend or terminate this
    18     declaration.
    19     ( ) Upon appointment of a guardian, I authorize the guardian
    20     to revoke, suspend or terminate this declaration.
    21         I am making this declaration on the (insert day)
    22     day of (insert month), (insert year).
    23     My signature: (My name, address, telephone number)
    24     Witnesses' signatures: (Names, addresses, telephone numbers
    25     of witnesses)
    26     If the principal making this declaration is unable to sign
    27     it, another individual may sign on behalf of and at the
    28     direction of the principal.
    29     Signature of person signing on my behalf:
    30     (Name, address and telephone number)
    20030H2036B2739                 - 22 -     

     1  § 5824.  Operation.
     2     (a)  When operative.--A declaration becomes operative when:
     3         (1)  A copy is provided to the attending physician.
     4         (2)  The conditions stated in the declaration are met.
     5     (b)  Compliance.--When a declaration becomes operative, the
     6  attending physician and other mental health care providers shall
     7  act in accordance with its provisions or comply with the
     8  transfer provisions of section 5804 (relating to compliance).
     9     (c)  Invalidity of specific direction.--If a specific
    10  direction in the declaration is held to be invalid, the
    11  invalidity shall not be construed to negate other directions in
    12  the declaration that can be effected without the invalid
    13  direction.
    14     (d)  Mental health record.--A physician or other mental
    15  health care provider to whom a copy of a declaration is
    16  furnished shall make it a part of the mental record of the
    17  declarant and, if unwilling to comply with the declaration,
    18  promptly so advise the declarant.
    19     (e)  Duration.--Unless a declaration states a time of
    20  termination, it shall be valid until revoked by the declarant.
    21  If a declaration for mental health treatment has been invoked
    22  and is in effect at the specified expiration date after its
    23  execution, the declaration shall remain effective until the
    24  principal is no longer incapable.
    25     (f)  Absence of declaration.--If an individual does not make
    26  a declaration, a presumption does not arise regarding the intent
    27  of the individual to consent to or to refuse a mental health
    28  treatment.
    29  § 5825.  Revocation.
    30     (a)  When declaration may be revoked.--An individual shall
    20030H2036B2739                 - 23 -     

     1  specify in a declaration whether it may be revoked by the
     2  individual:
     3         (1)  at any time and in any manner, only if the
     4     individual has not been found to be incapable of making
     5     mental health treatment decisions; or
     6         (2)  at the time specified for termination.
     7     (b)  Effect of revocation.--A revocation of a declaration
     8  shall be effective upon communication to the attending physician
     9  or other mental health care provider by the declarant or a
    10  witness to the revocation.
    11     (c)  Mental health record.--An attending physician or other
    12  mental health care provider shall make revocation or a
    13  declaration part of the mental health record of the declarant.
    14  § 5826.  Amendment.
    15     While of sound mind, a declarant may amend a declaration by a
    16  writing executed in accordance with the provisions of section
    17  5822 (relating to execution).
    18                            SUBCHAPTER C
    19               MENTAL HEALTH CARE POWERS OF ATTORNEY
    20  Sec.
    21  5831.  Short title of subchapter.
    22  5832.  Execution.
    23  5833.  Form.
    24  5834.  Operation.
    25  5835.  Appointment of mental health care agents.
    26  5836.  Authority of mental health care agent.
    27  5837.  Removal of agent.
    28  5838.  Effect of divorce.
    29  5839.  Revocation.
    30  5840.  Amendment.
    20030H2036B2739                 - 24 -     

     1  5841.  Relation of mental health care agent to court-appointed
     2         guardian and other agents.
     3  5842.  Duties of attending physician and mental health care
     4         provider.
     5  5843.  Construction.
     6  5844.  Conflicting mental health care powers of attorney.
     7  5845.  Validity.
     8  § 5831.  Short title of subchapter.
     9     This subchapter shall be known and may be cited as the Mental
    10  Health Care Agents Act.
    11  § 5832.  Execution.
    12     (a)  Who may make.--An individual who is at least 18 years of
    13  age and has not been deemed incapacitated pursuant to section
    14  5511 (relating to petition and hearing; independent evaluation)
    15  or found to be severely mentally disabled pursuant to section
    16  302 of the act of July 9, 1976 (P.L.817, No.143), known as the
    17  Mental Health Procedures Act, may make a power of attorney
    18  governing the initiation, continuation, withholding or
    19  withdrawal of mental health treatment.
    20     (b)  Requirements.--A power of attorney must be:
    21         (1)  Dated and signed by the principal by signature or
    22     mark or by another individual on behalf of and at the
    23     direction of the principal.
    24         (2)  Witnessed by two individuals, each of whom must be
    25     at least 18 years of age.
    26     (c)  Witnesses.--
    27         (1)  An individual who signs a power of attorney on
    28     behalf of and at the direction of a principal may not witness
    29     the power of attorney.
    30         (2)  A mental health care provider and its agent may not
    20030H2036B2739                 - 25 -     

     1     sign a power of attorney on behalf of and at the direction of
     2     a principal if the mental health care provider or agent
     3     provides mental health care services to the principal.
     4  § 5833.  Form.
     5     (a)  Requirements.--A mental health care power of attorney
     6  must do the following:
     7         (1)  Identify the principal and appoint the mental health
     8     care agent.
     9         (2)  Declare that the principal authorizes the mental
    10     health care agent to make mental health care decisions on
    11     behalf of the principal.
    12     (b)  Optional provisions.--A mental health care power of
    13  attorney may:
    14         (1)  Describe any limitations that the principal imposes
    15     upon the authority of the mental health care agent.
    16         (2)  Indicate the intent of the principal regarding the
    17     initiation, continuation or refusal of mental health
    18     treatment.
    19         (3)  Nominate a guardian of the person of the principal
    20     as provided in section 5841 (relating to relation of mental
    21     health care agent to court-appointed guardian and other
    22     agents).
    23         (4)  Contain other provisions as the principal may
    24     specify regarding the implementation of mental health care
    25     decisions and related actions by the mental health care
    26     agent.
    27     (c)  Written form.--A mental health care power of attorney
    28  may be in the following form or any other written form
    29  identifying the principal, appointing a mental health care agent
    30  and declaring that the principal authorizes the mental health
    20030H2036B2739                 - 26 -     

     1  care agent to make mental health care decisions on behalf of the
     2  principal.
     3                Mental Health Care Power of Attorney
     4     I,                  , being of sound mind, authorize my
     5     designated health care agent to make certain decisions on my
     6     behalf regarding my mental health care. If I have not
     7     expressed a choice in this document, I authorize my agent to
     8     make the decision that my agent determines is the decision I
     9     would make if I were competent to do so.
    10     I understand that mental health care includes any care,
    11     treatment, service or procedure to maintain, diagnose, treat
    12     or provide for mental health, including any medication
    13     program and therapeutic treatment. Mental health care does
    14     not include electroconvulsive therapy, laboratory trials or
    15     research, or commitment to a mental health facility unless
    16     specifically provided for in this document. Mental health
    17     care does not include psychosurgery or termination of
    18     parental rights.
    19     I understand that my incapacity will be determined by
    20     examination by a psychiatrist and one of the following:
    21     another psychiatrist, psychologist, family physician,
    22     attending physician or mental health treatment professional.
    23     Whenever possible, one of the decision makers shall be one of
    24     my treating professionals.
    25     A.  Designation of agent. I hereby designate and appoint the
    26     following person as my agent to make mental health care
    27     decisions for me as authorized in this document:
    28                 (Insert name of designated person)
    29     Signed:
    30     (My name, address, telephone number)
    20030H2036B2739                 - 27 -     

     1     (Witnesses' signatures)
     2     (Names, addresses, telephone numbers of witnesses)
     3     Agent's acceptance:
     4     I hereby accept designation as mental health care agent for
     5     (Insert name of declarant)
     6     Agent's signature:
     7     (Insert name, address, telephone number of designated person)
     8     B.  Designation of alternative agent.
     9     In the event that my first agent is unavailable or unable to
    10     serve as my mental health care agent, I hereby designate and
    11     appoint the following individual as my alternative mental
    12     health care agent to make mental health care decisions for me
    13     as authorized in this document:
    14     (Insert name of designated person)
    15     Signed:
    16     (Witnesses' signatures)
    17     (Names, addresses, telephone numbers of witnesses)
    18     Alternative agent's acceptance:
    19     I hereby accept designation as alternative mental health care
    20     agent for
    21     (Insert name of declarant)
    22     Alternative agent's signature:                  .
    23     (Insert name, address, telephone number)
    24     C.  When this power of attorney becomes effective.
    25     This power of attorney will become effective at the following
    26     designated time:
    27     ( )  When I am deemed incapable of making mental health care
    28     decisions.
    29     ( )  When the following condition is met:
    30                          (List condition)
    20030H2036B2739                 - 28 -     

     1     D.  Authority granted to my mental health care agent.
     2     I hereby grant to my agent full power and authority to make
     3     mental health care decisions for me consistent with the
     4     instructions and limitations set forth in this power of
     5     attorney. If I have not expressed a choice in this power of
     6     attorney, I authorize my agent to make the decision that my
     7     agent determines is the decision I would make if I were
     8     competent to do so.
     9         1.  Treatment preferences.
    10         (a)  Choice of treatment facility.
    11     My agent ( )  does ( )  does not have the power to consent to
    12     having me admitted to a psychiatric treatment facility.
    13     ( )  In the event that I require commitment to a psychiatric
    14     treatment facility, I would prefer to be admitted to the
    15     following facility:
    16                 (Insert name and address of facility)
    17     ( )  In the event that I require commitment to a psychiatric
    18     treatment facility, I do not wish to be committed to the
    19     following facility:
    20               (Insert name and address of facility)
    21     I understand that my physician may have to place me in a
    22     facility that is not my preference.
    23         (b)  Preferences regarding medications for psychiatric
    24     treatment.
    25     ( )  My agent is not authorized to consent to the use of any
    26     medications.
    27     ( )  I consent to the medications that my agent agrees to
    28     after consultation with my treating physician and any other
    29     persons my agent considers appropriate.
    30     ( )  I consent to the medications that my agent agrees to,
    20030H2036B2739                 - 29 -     

     1     with the following exception or limitation:
     2                   (List exception or limitation)
     3     This exception or limitation applies to generic, brand name
     4     and trade name equivalents.
     5         (c)  Preferences regarding electroconvulsive therapy
     6     (ECT).
     7     ( )  My agent is not authorized to consent to the
     8     administration of electroconvulsive therapy.
     9     ( )  My agent is authorized to consent to the administration
    10     of electroconvulsive therapy.
    11         (d)  Preferences for experimental studies or drug trials.
    12     ( )  My agent is not authorized to consent to my
    13     participation in experimental studies.
    14     ( )  My agent is authorized to consent to my participation in
    15     experimental studies if, after consultation with my treating
    16     physician and any other individuals my agent deems
    17     appropriate, my agent believes that the potential benefits to
    18     me outweigh the possible risks to me.
    19     ( )  My agent is not authorized to consent to my
    20     participation in drug trials.
    21     ( )  My agent is authorized to consent to my participation in
    22     drug trials if, after consultation with my treating physician
    23     and any other individuals my agent deems appropriate, my
    24     agent believes that the potential benefits to me outweigh the
    25     possible risks to me.
    26         (e)  Additional information and instructions.
    27     Examples of other information that may be included:
    28         Activities that help or worsen symptoms.
    29         Type of intervention preferred in the event of a
    30             crisis.
    20030H2036B2739                 - 30 -     

     1         Mental and physical health history.
     2         Dietary requirements.
     3         Religious preferences.
     4         Temporary custody of children.
     5         Family notification.
     6         Visitors that you do or do not want to have.
     7         Limitations on release or disclosure of mental
     8             health records.
     9         Instructions related to preferences if you are
    10             pregnant.
    11         Other matters of importance.
    12     E.  Revocation.
    13     This power of attorney may be revoked in whole or in part in
    14     the following manner:
    15     ( )  At any time, either orally or in writing, as long as I
    16     have not been found to be incapable of making mental health
    17     decisions.
    18     My revocation will be effective upon communication to my
    19     attending physician or other mental health care provider,
    20     either by me or a witness to my revocation. If I choose to
    21     revoke a particular instruction contained in this power of
    22     attorney in the manner specified, I understand that the other
    23     instructions contained in this power of attorney will remain
    24     effective until:
    25         (1)  I revoke this power of attorney in its entirety;
    26         (2)  I make a new mental health care power of attorney;
    27     or
    28         (3)  until the date that I have specified as the
    29     termination date.
    30     ( )  This power of attorney will remain effective until the
    20030H2036B2739                 - 31 -     

     1     time specified for termination.
     2     F.  Termination.
     3     I also understand that I may specify a date upon which this
     4     power of attorney will automatically terminate.
     5     ( )  This power of attorney will automatically terminate upon
     6     the date specified unless I am deemed incapable of making
     7     mental health care decisions at the time that the power of
     8     attorney would expire.
     9     (Specify date)
    10     ( )  This power of attorney will continue until I revoke it
    11     in its entirety or until I make a new mental health care
    12     power of attorney.
    13     G.  Preference as to a court-appointed guardian.
    14     I understand that I may nominate a guardian of my person for
    15     consideration by the court if incapacity proceedings are
    16     commenced pursuant to 20 Pa.C.S. § 5511. I understand that
    17     the court will appoint a guardian in accordance with my most
    18     recent nomination except for good cause or disqualification.
    19     In the event a court decides to appoint a guardian, I desire
    20     the following person to be appointed:
    21     (Insert name, address, telephone number of designated person)
    22     ( )  The appointment of a guardian of my person will not give
    23     the guardian the power to revoke, suspend or terminate this
    24     power of attorney.
    25     ( )  Upon appointment of a guardian, I authorize the guardian
    26     to revoke, suspend or terminate this power of attorney.
    27     I am making this power of attorney on the (insert day) of
    28     (insert month), (insert year).
    29     My signature
    30     (My Name, address, telephone number)
    20030H2036B2739                 - 32 -     

     1     Witnesses' signatures:
     2     (Names, addresses, telephone numbers of witnesses)
     3     If the principal making this power of attorney is unable to
     4     sign it, another individual may sign on behalf of and at the
     5     direction of the principal.
     6     Signature of person signing on my behalf:
     7     Signature
     8     (Name, address telephone number)
     9  § 5834.  Operation.
    10     (a)  When operative.--A mental health care power of attorney
    11  shall become operative when:
    12         (1)  A copy is provided to the attending physician.
    13         (2)  The conditions stated in the power of attorney are
    14     met.
    15     (b)  Invalidity of specific direction.--If a specific
    16  direction in a mental health care power of attorney is held to
    17  be invalid, the invalidity does not negate other directions in
    18  the mental health care power of attorney that can be effected
    19  without the invalid direction.
    20     (c)  Duration.--Unless a power of attorney states a time of
    21  termination, it shall be valid until revoked by the principal.
    22  If a power of attorney for mental health treatment has been
    23  invoked and is in effect at the specified date of expiration
    24  after its execution, the power of attorney shall remain
    25  effective until the principal is no longer incapable.
    26     (d)  Court approval unnecessary.--A mental health care
    27  decision made by a mental health care agent for a principal
    28  shall be effective without court approval.
    29  § 5835.  Appointment of mental health care agents.
    30     (a)  Successor mental health care agents.--A principal may
    20030H2036B2739                 - 33 -     

     1  appoint one or more successor agents who shall serve in the
     2  order named in the mental health care power of attorney unless
     3  the principal expressly directs to the contrary.
     4     (b)  Who may not be appointed mental health care agent.--
     5  Unless related to the principal by blood, marriage or adoption,
     6  a principal may not appoint any of the following to be the
     7  mental health care agent:
     8         (1)  The principal's attending physician or other mental
     9     health care provider, or an employee of the attending
    10     physician or other mental health care provider.
    11         (2)  An owner, operator or employee of a residential
    12     facility in which the principal receives care.
    13  § 5836.  Authority of mental health care agent.
    14     (a)  Extent of authority.--Except as expressly provided
    15  otherwise in a mental health care power of attorney and subject
    16  to subsections (b) and (c), a mental health care agent may make
    17  any mental health care decision and exercise any right and power
    18  regarding the principal's care, custody and mental health care
    19  treatment that the principal could have made and exercised.
    20     (b)  Powers not granted.--A mental health care power of
    21  attorney may not convey the power to relinquish parental rights
    22  or consent to psychosurgery.
    23     (c)  Powers and duties only specifically granted.--Unless
    24  specifically included in a mental health care power of attorney,
    25  the agent shall not have the power to admit the principal to an
    26  institution, consent to electroconvulsive therapy or to
    27  experimental procedures or research.
    28     (d)  Mental health care decisions.--After consultation with
    29  mental health care providers and after consideration of the
    30  prognosis and acceptable alternatives regarding diagnosis,
    20030H2036B2739                 - 34 -     

     1  treatments and side effects, a mental health care agent shall
     2  make mental health care decisions in accordance with the mental
     3  health care agent's understanding and interpretation of the
     4  instructions given by the principal at a time when the principal
     5  had the capacity to make and communicate mental health care
     6  decisions. Instructions include a declaration made by the
     7  principal and any clear written or verbal directions that cover
     8  the situation presented. In the absence of instructions, the
     9  mental health care agent shall make mental health care decisions
    10  conforming with the mental health care agent's assessment of the
    11  principal's preferences.
    12     (e)  Mental health care information.--
    13         (1)  Unless specifically provided otherwise in a mental
    14     health care power of attorney, a mental health care agent
    15     shall have the same rights and limitations as the principal
    16     to request, examine, copy and consent or refuse to consent to
    17     the disclosure of mental health care information.
    18         (2)  Disclosure of mental health care information to a
    19     mental health care agent shall not be construed to constitute
    20     a waiver of any evidentiary privilege or right to assert
    21     confidentiality.
    22         (3)  A mental health care provider that discloses mental
    23     health care information to a mental health care agent in good
    24     faith shall not be liable for the disclosure.
    25         (4)  A mental health care agent may not disclose mental
    26     health care information regarding the principal except as is
    27     reasonably necessary to perform the agent's obligations to
    28     the principal or as otherwise required by law.
    29     (f)  Liability of agent.--A mental health care agent shall
    30  not be personally liable for the costs of care and treatment of
    20030H2036B2739                 - 35 -     

     1  the principal.
     2  § 5837.  Removal of agent.
     3     (a)  Grounds for removal.--A health care agent can be removed
     4  for any of the following reasons:
     5         (1)  Death or incapacity.
     6         (2)  Noncompliance with a power of attorney.
     7         (3)  Physical assault or threats of harm.
     8         (4)  Coercion.
     9         (5)  Voluntary withdrawal by the agent.
    10         (6)  Divorce.
    11     (b)  Notice of voluntary withdrawal.--
    12         (1)  A mental health care agent who voluntarily withdraws
    13     shall inform the principal.
    14         (2)  If the power of attorney is in effect, the agent
    15     shall notify providers of mental health treatment.
    16     (c)  Challenges.--Third parties may challenge the authority
    17  of a mental health agent in the orphan's court division of the
    18  court of common pleas.
    19     (d)  Effect of removal.--If a power of attorney provides for
    20  a substitute agent, then the substitute agent shall assume
    21  responsibility when the agent is removed. If the power of
    22  attorney does not provide for a substitute, then a mental health
    23  care provider shall follow any instructions in the power of
    24  attorney.
    25  § 5838.  Effect of divorce.
    26     If the spouse of a principal is designated as the principal's
    27  mental health care agent and thereafter either spouse files an
    28  action in divorce, the designation of the spouse as mental
    29  health care agent shall be revoked as of the time the action is
    30  filed unless it clearly appears from the mental health care
    20030H2036B2739                 - 36 -     

     1  power of attorney that the designation was intended to continue
     2  to be effective notwithstanding the filing of an action in
     3  divorce by either spouse.
     4  § 5839.  Revocation.
     5     (a)  When mental health care power of attorney may be
     6  revoked.--An individual shall specify in the mental health care
     7  power of attorney whether it may be revoked by the principal:
     8         (1)  at any time and in any manner only if the principal
     9     has not been found to be incapable of making mental health
    10     treatment decisions; or
    11         (2)  at the time designated for termination.
    12     (b)  Effect of revocation.--A revocation shall be effective
    13  upon communication to the attending physician or other mental
    14  health care provider by the principal or a witness to the
    15  revocation.
    16     (c)  Mental health record.--The attending physician or other
    17  mental health care provider shall make the revocation part of
    18  the mental health record of the declarant.
    19     (d)  Reliance on mental health care power of attorney.--A
    20  physician or other mental health care provider may rely on the
    21  effectiveness of a mental health care power of attorney unless
    22  notified of its revocation.
    23     (e)  Subsequent action by agent.--A mental health care agent
    24  who has notice of the revocation of a mental health care power
    25  of attorney may not make or attempt to make mental health care
    26  decisions for the principal.
    27  § 5840.  Amendment.
    28     While of sound mind, a principal may amend a mental health
    29  care power of attorney by a writing executed in accordance with
    30  the provisions of section 5832 (relating to execution).
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     1  § 5841.  Relation of mental health care agent to court-appointed
     2             guardian and other agents.
     3     (a)  Accountability of mental health care agent.--If a
     4  principal who has executed a mental health care power of
     5  attorney is later adjudicated an incapacitated person, the power
     6  of attorney shall remain in effect. The guardian shall not be
     7  granted powers already granted in the mental health care power
     8  of attorney.
     9     (b)  Nomination of guardian of person.--In a mental health
    10  care power of attorney, a principal may nominate the guardian of
    11  the person for the principal for consideration by the court if
    12  incapacity proceedings for the principal's person are thereafter
    13  commenced. If the court determines that the appointment of a
    14  guardian is necessary, the court shall appoint in accordance
    15  with the principal's most recent nomination except for good
    16  cause or disqualification.
    17  § 5842.  Duties of attending physician and mental health care
    18             provider.
    19     (a)  Compliance with decisions of mental health care agent.--
    20  Subject to any limitation specified in a mental health care
    21  power of attorney, an attending physician or mental health care
    22  provider shall comply with a mental health care decision made by
    23  a mental health care agent to the same extent as if the decision
    24  had been made by the principal.
    25     (b)  Mental health record.--
    26         (1)  An attending physician or mental health care
    27     provider who is given a mental health care power of attorney
    28     shall arrange for the mental health care power of attorney or
    29     a copy to be placed in the mental health record of the
    30     principal.
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     1         (2)  An attending physician or mental health care
     2     provider to whom an amendment or revocation of a mental
     3     health care power of attorney is communicated shall promptly
     4     enter the information in the mental health record of the
     5     principal and maintain a copy if one is furnished.
     6     (c)  Record of determination.--An attending physician who
     7  determines that a principal is unable to make or has regained
     8  the capacity to make mental health treatment decisions or makes
     9  a determination that affects the authority of a mental health
    10  care agent shall enter the determination in the mental health
    11  record of the principal and, if possible, promptly inform the
    12  principal and any mental health care agent of the determination.
    13  § 5843.  Construction.
    14     (a)  General rule.--Nothing in this subchapter shall be
    15  construed to:
    16         (1)  Affect the requirements of other laws of this
    17     Commonwealth regarding consent to observation, diagnosis,
    18     treatment or hospitalization for a mental illness.
    19         (2)  Authorize a mental health care agent to consent to
    20     any mental health care prohibited by the laws of this
    21     Commonwealth.
    22         (3)  Affect the laws of this Commonwealth regarding any
    23     of the following:
    24             (i)  The standard of care of a mental health care
    25         provider required in the administration of mental health
    26         care or the clinical decision-making authority of the
    27         mental health care provider.
    28             (ii)  When consent is required for mental health
    29         care.
    30             (iii)  Informed consent for mental health care.
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     1     (b)  Disclosure.--
     2         (1)  The disclosure requirements of section 5836(e)
     3     (relating to authority of mental health care agent) shall
     4     supersede any provision in any other State statute or
     5     regulation that requires a principal to consent to disclosure
     6     or which otherwise conflicts with section 5836(e), including,
     7     but not limited to, the following:
     8             (i)  The act of April 14, 1972 (P.L.221, No.63),
     9         known as the Pennsylvania Drug and Alcohol Abuse Control
    10         Act.
    11             (ii)  Section 111 of the act of July 9, 1976
    12         (P.L.817, No.143), known as the Mental Health Procedures
    13         Act.
    14             (iii) The act of October 5, 1978 (P.L.1109, No.261),
    15         known as the Osteopathic Medical Practice Act.
    16             (iv)  Section 41 of the act of December 20, 1985
    17         (P.L.457, No.112), known as the Medical Practice Act of
    18         1985.
    19             (v)   The act of November 29, 1990 (P.L.585, No.148),
    20         known as the Confidentiality of HIV-Related Information
    21         Act.
    22         (2)  The disclosure requirements under section 5836(e)
    23     shall not apply to the extent that the disclosure would be
    24     prohibited by Federal law and implementing regulations.
    25     (c)  Notice and acknowledgment requirements.--The notice and
    26  acknowledgment requirements of section 5601(c) and (d) (relating
    27  to general provisions) shall not apply to a power of attorney
    28  that provides exclusively for mental health care decision
    29  making.
    30  § 5844.  Conflicting mental health care powers of attorney.
    20030H2036B2739                 - 40 -     

     1     If a provision of a mental health care power of attorney
     2  conflicts with another provision of a mental health care power
     3  of attorney or with a provision of a declaration, the provision
     4  of the instrument latest in date of execution shall prevail to
     5  the extent of the conflict.
     6  § 5845.  Validity.
     7     This subchapter shall not be construed to limit the validity
     8  of a mental health care power of attorney executed prior to the
     9  effective date of this subchapter. A mental health care power of
    10  attorney executed in another state or jurisdiction and in
    11  conformity with the laws of that state or jurisdiction shall be
    12  considered valid in this Commonwealth, except to the extent that
    13  the mental health care power of attorney executed in another
    14  state or jurisdiction would allow a mental health care agent to
    15  make a mental health care decision inconsistent with the laws of
    16  this Commonwealth.
    17     Section 2.  The following acts and parts of acts are repealed
    18  insofar as they are inconsistent with this act:
    19     The provisions of 20 Pa.C.S. Ch. 54.
    20     The provisions of 20 Pa.C.S. § 5602(a)(8) and (9).
    21     The provisions of 20 Pa.C.S. § 5603(h).
    22     Section 3.  (a)  The repeal of the form of the declaration in
    23  20 Pa.C.S. § 5404(b) shall not affect the validity of any
    24  declaration executed pursuant to that form before, on or after
    25  the effective date of this act.
    26     (b)  The repeal of 20 Pa.C.S. §§ 5602(a)(8) and (9) and
    27  5603(h) shall not affect the authority of an agent operating
    28  under any power of attorney relying on those provisions,
    29  executed before the effective date of the repeal of those
    30  provisions.
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     1     Section 4.  This act shall take effect in 60 days.




















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