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                                 SENATE AMENDED
        PRIOR PRINTER'S NOS. 2739, 4166, 4270,        PRINTER'S NO. 4723
        4383

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, YOUNGBLOOD,
           GOODMAN, GANNON, E. Z. TAYLOR, BROWNE, OLIVER, RUBLEY,
           DeLUCA, JOSEPHS, HORSEY, SAINATO, WILT, WASHINGTON, BISHOP
           AND GERGELY, OCTOBER 8, 2003

        AS AMENDED ON SECOND CONSIDERATION, IN SENATE, NOVEMBER 15, 2004


                                     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 Declarations
    13     C.  Mental Health Powers of Attorney

     1                            SUBCHAPTER A
     2                         GENERAL PROVISIONS
     3  Sec.
     4  5801.  Applicability.
     5  5802.  Definitions.
     6  5803.  Legislative findings and intent.
     7  5804.  Compliance.
     8  5805.  Liability.
     9  5806.  Penalties.
    10  5807.  Rights and responsibilities.
    11  5808.  Combining mental health care instruments.
    12  § 5801.  Applicability.
    13     (a)  General rule.--This chapter applies to mental health
    14  declarations and mental health powers of attorney.
    15     (b)  Preservation of existing rights.--The provisions of this
    16  chapter shall not be construed to impair or supersede any
    17  existing rights or responsibilities not addressed in this
    18  chapter.
    19  § 5802.  Definitions.
    20     The following words and phrases when used in this chapter
    21  shall have the meanings given to them in this section unless the
    22  context clearly indicates otherwise:
    23     "Attending physician."  A physician who has primary
    24  responsibility for the treatment and care of the declarant or
    25  principal.
    26     "Declarant."  An individual who makes a declaration in
    27  accordance with this chapter.
    28     "Declaration."  A writing made in accordance with this
    29  chapter that expresses a declarant's wishes and instructions for
    30  mental health care and mental health care directions and which
    20030H2036B4723                  - 2 -     

     1  may contain other specific directions.
     2     "Mental health care."  Any care, treatment, service or
     3  procedure to maintain, diagnose, treat or provide for mental
     4  health, including any medication program and therapeutical
     5  treatment.
     6     "Mental health care agent."  An individual designated by a
     7  principal in a mental health power of attorney.
     8     "Mental health power of attorney."  A writing made by a        <--
     9  principal designating an individual to make mental health care
    10  decisions for the principal.
    11     "Mental health care provider."  A person who is licensed,
    12  certified or otherwise authorized by the laws of this
    13  Commonwealth to administer or provide mental health care in the
    14  ordinary course of business or practice of a profession.
    15     "MENTAL HEALTH POWER OF ATTORNEY."  A WRITING MADE BY A        <--
    16  PRINCIPAL DESIGNATING AN INDIVIDUAL TO MAKE MENTAL HEALTH CARE
    17  DECISIONS FOR THE PRINCIPAL.
    18     "Mental health treatment professional."  A licensed physician
    19  who has successfully completed a residency program in psychiatry
    20  or a person trained and licensed in social work, psychology or
    21  nursing who has a graduate degree and clinical experience in
    22  mental health.
    23     "Principal."  An individual who makes a mental health power
    24  of attorney in accordance with this chapter.
    25  § 5803.  Legislative findings and intent.
    26     (a)  Intent.--This chapter provides a means for competent
    27  adults to control their mental health care either directly
    28  through instructions written in advance or indirectly through a
    29  mental health care agent.
    30     (b)  Presumption not created.--This chapter shall not be
    20030H2036B4723                  - 3 -     

     1  construed to create any presumption regarding the intent of an
     2  individual who has not executed a declaration or mental health
     3  care power of attorney to consent to the use or withholding of
     4  treatment.
     5     (c)  Findings in general.--The General Assembly finds that
     6  all capable adults have a qualified right to control decisions
     7  relating to their own mental health care.
     8  § 5804.  Compliance.
     9     (a)  Duty to comply.--
    10         (1)  An attending physician and mental health care
    11     provider shall comply with mental health declarations and
    12     powers of attorney.
    13         (2)  If an attending physician or other mental health
    14     care provider cannot in good conscience comply with a
    15     declaration or mental health care decision of a mental health
    16     care agent because the instructions are contrary to accepted
    17     clinical practice and medical standards or because treatment
    18     is unavailable or if the policies of a mental health care
    19     provider preclude compliance with a declaration or mental
    20     health care decision of a mental health care agent,
    21     immediately upon receipt of the declaration or power of
    22     attorney, and as soon as any possibility of noncompliance
    23     becomes apparent, the attending physician or mental health
    24     care provider shall so inform the following:
    25             (i)  The declarant, if the declarant is competent.
    26             (ii)  The substitute named in the declaration, if the
    27         declarant is incompetent.
    28             (iii)  The guardian or other legal representative of
    29         the declarant, if the declarant is incompetent and a
    30         substitute is not named in the declaration.
    20030H2036B4723                  - 4 -     

     1             (iv)  The mental health care agent of the principal.
     2         (3)  The physician or mental health care provider shall
     3     document the reasons for noncompliance.
     4     (b)  Transfer.--An attending physician or mental health care
     5  provider under subsection (a)(2) shall make every reasonable
     6  effort to assist in the transfer of the declarant or principal
     7  to another physician or mental health care provider who will
     8  comply with the declaration or mental health care decision of
     9  the mental health care agent. While the transfer is pending, the
    10  patient shall be treated consistent with the advance directive    <--
    11  DECLARATION OR MENTAL HEALTH CARE DECISION OF THE MENTAL HEALTH   <--
    12  AGENT. If reasonable efforts to transfer fail, the patient may
    13  be discharged.
    14  § 5805.  Liability.
    15     (a)  General rule.--A person who is a physician, another
    16  mental health care provider or another person who acts in good
    17  faith and consistent with this chapter may not be subject to
    18  criminal or civil liability, discipline for unprofessional
    19  conduct or administrative sanctions and may not be found to have
    20  committed an act of unprofessional conduct by any professional
    21  board or administrative body with such authority as a result of
    22  any of the following:
    23         (1)  Complying with a direction or decision of an
    24     individual who the person believes in good faith has
    25     authority to act as a principal's mental health care agent so
    26     long as the direction or decision is not clearly contrary to
    27     the terms of the mental health power of attorney.
    28         (2)  Refusing to comply with a direction or decision of
    29     an individual based on a good faith belief that the
    30     individual lacks authority to act as a principal's mental
    20030H2036B4723                  - 5 -     

     1     health care agent.
     2         (3)  Complying with a mental health care power of
     3     attorney or declaration under the assumption that it was
     4     valid when made and has not been amended or revoked.
     5         (4)  Disclosing mental health care information to another
     6     person based upon a good faith belief that the disclosure is
     7     authorized, permitted or required by this chapter.
     8         (5)  Refusing to comply with the direction or decision of
     9     an individual due to conflicts with a provider's contractual,
    10     network or payment policy restrictions.
    11         (6)  Refusing to comply with a mental health directive     <--
    12     DECLARATION OR MENTAL HEALTH POWER OF ATTORNEY which violates  <--
    13     accepted clinical standards or medical standards of care.
    14         (7)  Making a determination that the patient lacks
    15     capacity to make mental health decisions that causes a mental  <--
    16     health advance directive DECLARATION OR A MENTAL HEALTH POWER  <--
    17     OF ATTORNEY to become effective.
    18         (8)  Failing to determine that a patient lacks capacity
    19     to make mental health decisions for the purposes of this act   <--
    20     CHAPTER.                                                       <--
    21     (b)  Same effect as if dealing with principal.--Any attending
    22  physician, mental health care provider and other person who acts
    23  under subsection (a) shall be protected and released to the same
    24  extent as if dealing directly with a competent principal.
    25     (c)  Good faith of mental health care agent.--A mental health
    26  care agent who acts according to the terms of a mental health
    27  power of attorney may not be subject to civil or criminal
    28  liability for acting in good faith for a principal or failing in
    29  good faith to act for a principal.
    30  § 5806.  Penalties.
    20030H2036B4723                  - 6 -     

     1     (a)  Offense defined.--A person commits a felony of the third
     2  degree by willfully:
     3         (1)  Concealing, canceling, altering, defacing,
     4     obliterating or damaging a declaration without the consent of
     5     the declarant.
     6         (2)  Concealing, canceling, altering, defacing,
     7     obliterating or damaging a mental health power of attorney or
     8     any amendment or revocation thereof without the consent of
     9     the principal.
    10         (3)  Causing a person to execute a declaration or power
    11     of attorney under this chapter by undue influence, fraud or
    12     duress.
    13         (4)  Falsifying or forging a mental health power of
    14     attorney or declaration or any amendment or revocation
    15     thereof, the result of which is a direct change in the mental
    16     health care provided to the principal.
    17     (b)  Removal and liability.--An agent who willfully fails to
    18  comply with a mental health power of attorney may be removed and
    19  sued for actual damages.
    20  § 5807.  Rights and responsibilities.
    21     (a)  Declarants and principals.--Persons who execute a
    22  declaration or a mental health power of attorney shall have the
    23  following rights and responsibilities:
    24         (1)  For the purposes of this act CHAPTER, persons are     <--
    25     presumed capable of making mental health decisions, including
    26     the execution of a mental health declaration or power of
    27     attorney, 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,
    20030H2036B4723                  - 7 -     

     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     mental health power of attorney.
     8         (3)  Persons shall execute or amend their declarations or
     9     mental health powers of attorney every two years, however if
    10     a person is incapable of making mental heath care decisions
    11     at the time this document would expire, the document shall
    12     remain in effect and be reviewed at the time when the person
    13     regains capacity.
    14         (4)  Persons shall give notice of amendment and
    15     revocation to providers, agents and guardians, if any.
    16     (b)  Providers.--Mental health treatment providers shall have
    17  the following rights and responsibilities:
    18         (1)  Inquire as to the existence of declarations or
    19     powers of attorney for persons in their care.
    20         (2)  Inform persons who are being discharged from
    21     treatment about the availability of mental health
    22     declarations and powers of attorney as part of discharge
    23     planning.
    24         (3)  Not require declarations or powers of attorney as
    25     conditions of treatment. Mental health treatment providers
    26     may not choose whether to accept a person for treatment based
    27     solely on the existence or absence of a mental health
    28     declaration or power of attorney.
    29  § 5808.  Combining mental health instruments.
    30     (a)  General rule.--A declaration and mental health power of
    20030H2036B4723                  - 8 -     

     1  attorney may be combined into one mental health document.
     2     (b)  Form.--A combined declaration and mental health power of
     3  attorney may be in the following form or any other written form
     4  which contains the information required under Subchapters B
     5  (relating to mental health care declarations) and C (relating to  <--
     6  mental health care powers of attorney):                           <--
     7              Combined Mental Health Care Declaration
     8                     and Power of Attorney Form
     9     Part I.  Introduction.
    10     I,               , having capacity to make mental health
    11     decisions, willfully and voluntarily make this declaration
    12     and power of attorney regarding my mental health care.
    13     I understand that mental health care includes any care,
    14     treatment, service or procedure to maintain, diagnose, treat
    15     or provide for mental health, including any medication
    16     program and therapeutic treatment. Electroconvulsive therapy
    17     may be administered only if I have specifically consented to
    18     it in this document. I will be the subject of laboratory
    19     trials or research only if specifically provided for in this
    20     document. Mental health care does not include psychosurgery
    21     or termination of parental rights.
    22     I understand that my incapacity will be determined by
    23     examination by a psychiatrist and one of the following:
    24     another psychiatrist, psychologist, family physician,
    25     attending physician or mental health treatment professional.
    26     Whenever possible, one of the decision makers will be one of
    27     my treating professionals.
    28     Part II.  Mental Health Declaration.
    29     A.  When this declaration becomes effective.
    30     This declaration becomes effective at the following
    20030H2036B4723                  - 9 -     

     1     designated time:
     2     ( ) When I am deemed incapable of making mental health care
     3     decisions.
     4     ( ) When the following condition is met:
     5                          (List condition)
     6     B.  Treatment preferences.
     7         1.  Choice of treatment facility.
     8     ( ) In the event that I require commitment to a psychiatric
     9     treatment facility, I would prefer to be admitted to the
    10     following facility:
    11                 (Insert name and address of facility)
    12     ( ) In the event that I require commitment to a psychiatric
    13     treatment facility, I do not wish to be committed to the
    14     following facility:
    15                 (Insert name and address of facility)
    16     I understand that my physician may have to place me in a
    17     facility that is not my preference.
    18         2.  Preferences regarding medications for psychiatric
    19     treatment.
    20     ( ) I consent to the medications that my treating physician
    21     recommends.
    22     ( ) I consent to the medications that my treating physician
    23     recommends with the following exception, preference or
    24     limitation:
    25     (List medication and reason for exception, preference or
    26     limitation)
    27     The exception, preference or limitation applies to generic,
    28     brand name and trade name equivalents. I understand that
    29     dosage instructions are not binding on my physician.
    30     ( ) I do not consent to the use of any medications.
    20030H2036B4723                 - 10 -     

     1     ( ) I have designated an agent under the power of attorney
     2     portion of this document to make decisions related to
     3     medication.
     4         3.  Preferences regarding electroconvulsive therapy
     5     (ECT).
     6     ( ) I consent to the administration of electroconvulsive
     7     therapy.
     8     ( ) I do not consent to the administration of
     9     electroconvulsive therapy.
    10     ( ) I have designated an agent under the power of attorney
    11     portion of this document to make decisions related to
    12     electroconvulsive therapy.
    13         4.  Preferences for experimental studies or drug trials.
    14     ( ) I consent to participation in experimental studies if my
    15     treating physician believes that the potential benefits to me
    16     outweigh the possible risks to me.
    17     ( ) I have designated an agent under the power of attorney
    18     portion of this document to make decisions related to
    19     experimental studies.
    20     ( ) I do not consent to participation in experimental
    21     studies.
    22     ( ) I consent to participation in drug trials if my treating
    23     physician believes that the potential benefits to me outweigh
    24     the possible risks to me.
    25     ( ) I have designated an agent under the power of attorney
    26     portion of this document to make decisions related to drug
    27     trials.
    28     ( ) I do not consent to participation in any drug trials.
    29         5.  Additional instructions or information.
    30     Examples of other instructions or information that may be
    20030H2036B4723                 - 11 -     

     1     included:
     2         Activities that help or worsen symptoms.
     3         Type of intervention preferred in the event of a
     4             crisis.
     5         Mental and physical health history.
     6         Dietary requirements.
     7         Religious preferences.
     8         Temporary custody of children.
     9         Family notification.
    10         Limitations on the release or disclosure of
    11             mental health records.
    12         Other matters of importance.
    13     C.  Revocation.
    14     This declaration may be revoked in whole or in part at any
    15     time, either orally or in writing, as long as I have not been
    16     found to be incapable of making mental health decisions.
    17     My revocation will be effective upon communication to my
    18     attending physician or other mental health care provider,
    19     either by me or a witness to my revocation, of the intent to
    20     revoke. If I choose to revoke a particular instruction
    21     contained in this declaration in the manner specified, I
    22     understand that the other instructions contained in this
    23     declaration will remain effective until:
    24         (1)  I revoke this declaration in its entirety;
    25         (2)  I make a new combined mental health declaration and
    26     power of attorney; or
    27         (3)  two years after the date this document was executed.
    28     D.  Termination.
    29     I understand that this declaration will automatically
    30     terminate two years from the date of execution, unless I am
    20030H2036B4723                 - 12 -     

     1     deemed incapable of making mental health care decisions at
     2     the time that this declaration would expire.
     3                           (Specify date)
     4     E.  Preference as to a court-appointed guardian.
     5     I understand that I may nominate a guardian of my person for
     6     consideration by the court if incapacity proceedings are
     7     commenced under 20 Pa.C.S. § 5511. I understand that the
     8     court will appoint a guardian in accordance with my most
     9     recent nomination except for good cause or disqualification.
    10     In the event a court decides to appoint a guardian, I desire
    11     the following person to be appointed:
    12       (Insert name, address, telephone number of the designated
    13                              person)
    14     ( ) The appointment of a guardian of my person will not give
    15     the guardian the power to revoke, suspend or terminate this
    16     declaration.
    17     ( ) Upon appointment of a guardian, I authorize the guardian
    18     to revoke, suspend or terminate this declaration.
    19     Part III.  Mental Health Power of Attorney.
    20     I,                , having the capacity to make mental health
    21     decisions, authorize my designated health care agent to make
    22     certain decisions on my behalf regarding my mental health
    23     care. If I have not expressed a choice in this document or in
    24     the accompanying declaration, I authorize my agent to make
    25     the decision that my agent determines is the decision I would
    26     make if I were competent to do so.
    27     A.  Designation of agent.
    28     I hereby designate and appoint the following person as my
    29     agent to make mental health care decisions for me as
    30     authorized in this document. This authorization applies only
    20030H2036B4723                 - 13 -     

     1     to mental health decisions that are not addressed in the
     2     accompanying signed declaration.
     3     (Insert name of designated person)
     4     Signed:
     5     (My name, address, telephone number)
     6     (Witnesses signatures)
     7     (Insert names, addresses, telephone numbers of witnesses)
     8     Agent's acceptance:
     9     I hereby accept designation as mental health care agent for
    10     (Insert name of declarant)
    11     Agent's signature:
    12     (Insert name, address, telephone number of designated person)
    13     B.  Designation of alternative agent.
    14     In the event that my first agent is unavailable or unable to
    15     serve as my mental health care agent, I hereby designate and
    16     appoint the following individual as my alternative mental
    17     health care agent to make mental health care decisions for me
    18     as authorized in this document:
    19     (Insert name of designated person)
    20     Signed:
    21     (My name, address, telephone number)
    22     (Witnesses signatures)
    23     (Insert names, addresses, telephone numbers of witnesses)
    24     Alternative agent's acceptance:
    25     I hereby accept designation as alternative mental health care
    26     agent for (Insert name of declarant)
    27     Alternative agent's signature:
    28     (Insert name, address, telephone number of alternative agent)
    29     C.  When this power of attorney become effective.
    30     This power of attorney will become effective at the following
    20030H2036B4723                 - 14 -     

     1     designated time:
     2     ( ) When I am deemed incapable of making mental health care
     3     decisions.
     4     ( ) When the following condition is met:
     5                          (List condition)
     6     D.  Authority granted to my mental health care agent.
     7     I hereby grant to my agent full power and authority to make
     8     mental health care decisions for me consistent with the
     9     instructions and limitations set forth in this document. If I
    10     have not expressed a choice in this power of attorney, or in
    11     the accompanying declaration, I authorize my agent to make
    12     the decision that my agent determines is the decision I would
    13     make if I were competent to do so.
    14         (1)  Preferences regarding medications for psychiatric
    15     treatment.
    16     ( ) My agent is authorized to consent to the use of any
    17     medications after consultation with my treating psychiatrist
    18     and any other persons my agent considers appropriate.
    19     ( ) My agent is not authorized to consent to the use of any
    20     medications.
    21         (2)  Preferences regarding electroconvulsive therapy
    22     (ECT).
    23     ( ) My agent is authorized to consent to the administration
    24     of electroconvulsive therapy.
    25     ( ) My agent is not authorized to consent to the
    26     administration of electroconvulsive therapy.
    27         (3)  Preferences for experimental studies or drug trials.
    28     ( ) My agent is authorized to consent to my participation in
    29     experimental studies if, after consultation with my treating
    30     physician and any other individuals my agent deems
    20030H2036B4723                 - 15 -     

     1     appropriate, my agent believes that the potential benefits to
     2     me outweigh the possible risks to me.
     3     ( ) My agent is not authorized to consent to my participation
     4     in experimental studies.
     5     ( ) My agent is authorized to consent to my participation in
     6     drug trials if, after consultation with my treating physician
     7     and any other individuals my agent deems appropriate, my
     8     agent believes that the potential benefits to me outweigh the
     9     possible risks to me.
    10     ( ) My agent is not authorized to consent to my participation
    11     in drug trials.
    12     E.  Revocation.
    13     This power of attorney may be revoked in whole or in part at
    14     any time, either orally or in writing, as long as I have not
    15     been found to be incapable of making mental health decisions.
    16     My revocation will be effective upon communication to my
    17     attending physician or other mental health care provider,
    18     either by me or a witness to my revocation, of the intent to
    19     revoke. If I choose to revoke a particular instruction
    20     contained in this power of attorney in the manner specified,
    21     I understand that the other instructions contained in this
    22     power of attorney will remain effective until:
    23         (1)  I revoke this power of attorney in its entirety;
    24         (2)  I make a new combined mental health care declaration
    25     and power of attorney; or
    26         (3)  two years from the date this document was executed.
    27     I understand that this power of attorney will automatically
    28     terminate two years from the date of execution unless I am
    29     deemed incapable of making mental health care decisions at
    30     the time that the power of attorney would expire.
    20030H2036B4723                 - 16 -     

     1     I am making this combined mental health care declaration and
     2     power of attorney on the (insert day) day of (insert month),
     3     (insert year).
     4     My signature:
     5     (My name, address, telephone number)
     6     Witnesses signatures:
     7     (Names, addresses, telephone numbers of witnesses).
     8     If the principal making this combined mental health care
     9     declaration and power of attorney is unable to sign this
    10     document, another individual may sign on behalf of and at the
    11     direction of the principal.
    12     Signature of person signing on my behalf:
    13     Signature
    14     (Name, address, telephone number)
    15                            SUBCHAPTER B
    16                     MENTAL HEALTH DECLARATIONS
    17  Sec.
    18  5821.  Short title of subchapter.
    19  5822.  Execution.
    20  5823.  Form.
    21  5824.  Operation.
    22  5825.  Revocation.
    23  5826.  Amendment.
    24  § 5821.  Short title of subchapter.
    25     This subchapter shall be known and may be cited as the
    26  Advance Directive for Mental Health Act.
    27  § 5822.  Execution.
    28     (a)  Who may make.--An individual who is at least 18 years of
    29  age or an emancipated minor and has not been deemed
    30  incapacitated pursuant to section 5511 (relating to petition and
    20030H2036B4723                 - 17 -     

     1  hearing; independent evaluation) or severely mentally disabled
     2  pursuant to Article III of the act of July 9, 1976 (P.L.817,
     3  No.143), known as the Mental Health Procedures Act, may make a
     4  declaration governing the initiation, continuation, withholding
     5  or withdrawal of mental health treatment.
     6     (b)  Requirements.--A declaration must be:
     7         (1)  Dated and signed by the declarant by signature or
     8     mark or by another individual on behalf of and at the
     9     direction of the declarant.
    10         (2)  Witnessed by two individuals, each of whom must be
    11     at least 18 years of age.
    12     (c)  Witnesses.--
    13         (1)  An individual who signs a declaration on behalf of
    14     and at the direction of a declarant may not witness the
    15     declaration.
    16         (2)  A mental health care provider and its agent may not
    17     sign a declaration on behalf of and at the direction of a
    18     declarant if the mental health care provider or agent
    19     provides mental health care services to the declarant.
    20  § 5823.  Form.
    21     A declaration may be in the following form or any other
    22  written form that expresses the wishes of a declarant regarding
    23  the initiation, continuation or refusal of mental health
    24  treatment and may include other specific directions, including,
    25  but not limited to, designation of another individual to make
    26  mental health treatment decisions for the declarant if the
    27  declarant is incapable of making mental health decisions:
    28                     Mental Health Declaration.
    29     I,                  , having the capacity to make mental
    30     health decisions, willfully and voluntarily make this
    20030H2036B4723                 - 18 -     

     1     declaration regarding my mental health care.
     2     I understand that mental health care includes any care,
     3     treatment, service or procedure to maintain, diagnose, treat
     4     or provide for mental health, including any medication
     5     program and therapeutic treatment. Electroconvulsive therapy
     6     may be administered only if I have specifically consented to
     7     it in this document. I will be the subject of laboratory
     8     trials or research, only if specifically provided for in this
     9     document. Mental health care does not include psychosurgery
    10     or termination of parental rights.
    11     I understand that my incapacity will be determined by
    12     examination by a psychiatrist and one of the following:
    13     another psychiatrist, psychologist, family physician,
    14     attending physician or mental health treatment professional.
    15     Whenever possible, one of the decision makers will be one of
    16     my treating professionals.
    17     A.  When this declaration becomes effective.
    18     This declaration becomes effective at the following
    19     designated time:
    20     ( ) When I am deemed incapable of making mental health care
    21     decisions.
    22     ( ) When the following condition is met:
    23                          (List condition)
    24     B.  Treatment preferences.
    25         1.  Choice of treatment facility.
    26     ( ) In the event that I require commitment to a psychiatric
    27     treatment facility, I would prefer to be admitted to the
    28     following facility:
    29               (Insert name and address of facility)
    30     ( ) In the event that I require commitment to a psychiatric
    20030H2036B4723                 - 19 -     

     1     treatment facility, I do not wish to be committed to the
     2     following facility:
     3               (Insert name and address of facility)
     4     I understand that my physician may have to place me in a
     5     facility that is not my preference.
     6         2.  Preferences regarding medications for psychiatric
     7     treatment.
     8     ( ) I consent to the medications that my treating physician
     9     recommends with the following exception, preference or
    10     limitation:
    11     (List medication and reason for exception, preference or
    12     limitation)
    13     This exception, preference or limitation applies to generic,
    14     brand name and trade name equivalents. I understand that
    15     dosage instructions are not binding on my physician.
    16     ( ) I do not consent to the use of any medications.
    17         3.  Preferences regarding electroconvulsive therapy
    18     (ECT).
    19     ( ) I consent to the administration of electroconvulsive
    20     therapy.
    21     ( ) I do not consent to the administration of
    22     electroconvulsive therapy.
    23         4.  Preferences for experimental studies or drug trials.
    24     ( ) I consent to participation in experimental studies if my
    25     treating physician believes that the potential benefits to me
    26     outweigh the possible risks to me.
    27     ( ) I do not consent to participation in experimental
    28     studies.
    29     ( ) I consent to participation in drug trials if my treating
    30     physician believes that the potential benefits to me outweigh
    20030H2036B4723                 - 20 -     

     1     the possible risks to me.
     2     ( ) I do not consent to participation in any drug trials.
     3         5.  Additional instructions or information.
     4     Examples of other instructions or information that may be
     5     included:
     6         Activities that help or worsen symptoms.
     7         Type of intervention preferred in the event of a
     8             crisis.
     9         Mental and physical health history.
    10         Dietary requirements.
    11         Religious preferences.
    12         Temporary custody of children.
    13         Family notification.
    14         Limitations on the release or disclosure of mental
    15             health records.
    16         Other matters of importance.
    17     C.  Revocation.
    18     This declaration may be revoked in whole or in part at any
    19     time, either orally or in writing, as long as I have not been
    20     found to be incapable of making mental health decisions.
    21     My revocation will be effective upon communication to my
    22     attending physician or other mental health care provider,
    23     either by me or a witness to my revocation, of the intent to
    24     revoke. If I choose to revoke a particular instruction
    25     contained in this declaration in the manner specified, I
    26     understand that the other instructions contained in this
    27     declaration will remain effective until:
    28         (1)  I revoke this declaration in its entirety;
    29         (2)  I make a new mental health care declaration; or
    30         (3)  two years after the date this document was executed.
    20030H2036B4723                 - 21 -     

     1     D.  Termination.
     2     I understand that this declaration will automatically
     3     terminate two years from the date of execution unless I am
     4     deemed incapable of making mental health care decisions at
     5     the time that the declaration would expire.
     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)
    20030H2036B4723                 - 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 health record of
    17  the declarant, for at least two years from the date of
    18  execution, and if unwilling to comply with the declaration,
    19  promptly so advise those listed in section 5804(a)(2).
    20     (e)  Duration.--A declaration shall be valid until revoked by
    21  the declarant or until two years from the date of execution. If
    22  a declaration for mental health treatment has been invoked and
    23  is in effect at the specified expiration date after its
    24  execution, the declaration shall remain effective until the
    25  principal is no longer incapable.
    26     (f)  Absence of declaration.--If an individual does not make
    27  a declaration, a presumption does not arise regarding the intent
    28  of the individual to consent to or to refuse a mental health
    29  treatment.
    30  § 5825.  Revocation.
    20030H2036B4723                 - 23 -     

     1     (a)  When declaration may be revoked.--A declaration may be
     2  revoked by the declarant at any time, either orally or in
     3  writing in whole or in part unless the individual has been found
     4  to be incapable of making mental health decisions or the
     5  individual has been involuntarily committed.
     6     (b)  Capacity to revoke.--Subsection (a) notwithstanding,
     7  during a period of involuntary commitment pursuant to Article
     8  III of the act of July 9, 1976 (P.L.817, No.143), known as the
     9  Mental Health Procedures Act, a declarant may revoke the
    10  declaration only if found to be capable of making mental health
    11  decisions after examination by a psychiatrist and one of the
    12  following: another psychiatrist, a psychologist, family
    13  physician, attending physician or mental treatment professional.
    14  Whenever possible, at least one of the decision makers shall be
    15  a treating professional of the declarant or principal.
    16     (c)  Effect of revocation.--A revocation of a declaration
    17  shall be effective upon communication to the attending physician
    18  or other mental health care provider by the declarant or a
    19  witness to the revocation of the intent to revoke.
    20     (d)  Mental health record.--An attending physician or other
    21  mental health care provider shall make revocation, a finding of
    22  capacity or a declaration part of the mental health record of
    23  the declarant.
    24  § 5826.  Amendment.
    25     (a)  Capacity to amend.--While having the capacity to make
    26  mental health decisions, a declarant may amend a declaration by
    27  a writing executed in accordance with the provisions of section
    28  5822 (relating to execution).
    29     (b)  Determination of capacity.--During the period of
    30  involuntary treatment pursuant to Article III of the act of July
    20030H2036B4723                 - 24 -     

     1  9, 1976 (P.L.817, No.143), known as the Mental Health Procedures
     2  Act, a declarant may amend the declaration if the individual is
     3  found to be capable of making mental health decisions after
     4  examination by a psychiatrist and one of the following: another
     5  psychiatrist, a psychologist, family physician, attending
     6  physician or mental health treatment professional. Whenever
     7  possible, at least one of the decision makers shall be a
     8  treating professional of the declarant or principal.
     9                            SUBCHAPTER C
    10                  MENTAL HEALTH POWERS OF ATTORNEY
    11  Sec.
    12  5831.  Short title of subchapter.
    13  5832.  Execution.
    14  5833.  Form.
    15  5834.  Operation.
    16  5835.  Appointment of mental health care agents.
    17  5836.  Authority of mental health care agent.
    18  5837.  Removal of agent.
    19  5838.  Effect of divorce.
    20  5839.  Revocation.
    21  5840.  Amendment.
    22  5841.  Relation of mental health care agent to court-appointed
    23         guardian and other agents.
    24  5842.  Duties of attending physician and mental health care
    25         provider.
    26  5843.  Construction.
    27  5844.  Conflicting mental health care powers of attorney          <--
    28         PROVISIONS.                                                <--
    29  5845.  Validity.
    30  § 5831.  Short title of subchapter.
    20030H2036B4723                 - 25 -     

     1     This subchapter shall be known and may be cited as the Mental
     2  Health Care Agents Act.
     3  § 5832.  Execution.
     4     (a)  Who may make.--An individual who is at least 18 years of
     5  age or an emancipated minor and who has not been deemed
     6  incapacitated pursuant to section 5511 (relating to petition and
     7  hearing; independent evaluation) or found to be severely
     8  mentally disabled pursuant to Article III of the act of July 9,
     9  1976 (P.L.817, No.143), known as the Mental Health Procedures
    10  Act, may make a mental health power of attorney governing the
    11  initiation, continuation, withholding or withdrawal of mental
    12  health treatment.
    13     (b)  Requirements.--A mental health power of attorney must
    14  be:
    15         (1)  Dated and signed by the principal by signature or
    16     mark or by another individual on behalf of and at the
    17     direction of the principal.
    18         (2)  Witnessed by two individuals, each of whom must be
    19     at least 18 years of age.
    20     (c)  Witnesses.--
    21         (1)  An individual who signs a mental health power of
    22     attorney on behalf of and at the direction of a principal may
    23     not witness the mental health power of attorney.
    24         (2)  A mental health care provider and its agent may not
    25     sign a mental health power of attorney on behalf of and at
    26     the direction of a principal if the mental health care
    27     provider or agent provides mental health care services to the
    28     principal.
    29  § 5833.  Form.
    30     (a)  Requirements.--A mental health power of attorney must do
    20030H2036B4723                 - 26 -     

     1  the following:
     2         (1)  Identify the principal and appoint the mental health
     3     care agent.
     4         (2)  Declare that the principal authorizes the mental
     5     health care agent to make mental health care decisions on
     6     behalf of the principal.
     7     (b)  Optional provisions.--A mental health power of attorney
     8  may:
     9         (1)  Describe any limitations that the principal imposes
    10     upon the authority of the mental health care agent.
    11         (2)  Indicate the intent of the principal regarding the
    12     initiation, continuation or refusal of mental health
    13     treatment.
    14         (3)  Nominate a guardian of the person of the principal
    15     as provided in section 5511 (relating to appointment of
    16     guardian).
    17         (4)  Contain other provisions as the principal may
    18     specify regarding the implementation of mental health care
    19     decisions and related actions by the mental health care
    20     agent.
    21     (c)  Written form.--A mental health power of attorney may be
    22  in the following form or any other written form identifying the
    23  principal, appointing a mental health care agent and declaring
    24  that the principal authorizes the mental health care agent to
    25  make mental health care decisions on behalf of the principal.
    26                  Mental Health Power of Attorney
    27     I,                  , having the capacity to make mental
    28     health decisions, authorize my designated health care agent
    29     to make certain decisions on my behalf regarding my mental
    30     health care. If I have not expressed a choice in this
    20030H2036B4723                 - 27 -     

     1     document, I authorize my agent to make the decision that my
     2     agent determines is the decision I would make if I were
     3     competent to do so.
     4     I understand that mental health care includes any care,
     5     treatment, service or procedure to maintain, diagnose, treat
     6     or provide for mental health, including any medication
     7     program and therapeutic treatment. Electroconvulsive therapy
     8     may be administered only if I have specifically consented to
     9     it in this document. I will be the subject of laboratory
    10     trials or research only if specifically provided for in this
    11     document. Mental health care does not include psychosurgery
    12     or termination of parental rights.
    13     I understand that my incapacity will be determined by
    14     examination by a psychiatrist and one of the following:
    15     another psychiatrist, psychologist, family physician,
    16     attending physician or mental health treatment professional.
    17     Whenever possible, one of the decision makers shall be one of
    18     my treating professionals.
    19     A.  Designation of agent. I hereby designate and appoint the
    20     following person as my agent to make mental health care
    21     decisions for me as authorized in this document:
    22                 (Insert name of designated person)
    23     Signed:
    24     (My name, address, telephone number)
    25     (Witnesses' signatures)
    26     (Names, addresses, telephone numbers of witnesses)
    27     Agent's acceptance:
    28     I hereby accept designation as mental health care agent for
    29     (Insert name of declarant)
    30     Agent's signature:
    20030H2036B4723                 - 28 -     

     1     (Insert name, address, telephone number of designated person)
     2     B.  Designation of alternative agent.
     3     In the event that my first agent is unavailable or unable to
     4     serve as my mental health care agent, I hereby designate and
     5     appoint the following individual as my alternative mental
     6     health care agent to make mental health care decisions for me
     7     as authorized in this document:
     8     (Insert name of designated person)
     9     Signed:
    10     (Witnesses' signatures)
    11     (Names, addresses, telephone numbers of witnesses)
    12     Alternative agent's acceptance:
    13     I hereby accept designation as alternative mental health care
    14     agent for
    15     (Insert name of declarant)
    16     Alternative agent's signature:                  .
    17     (Insert name, address, telephone number)
    18     C.  When this power of attorney becomes effective.
    19     This power of attorney will become effective at the following
    20     designated time:
    21     ( )  When I am deemed incapable of making mental health care
    22     decisions.
    23     ( )  When the following condition is met:
    24                          (List condition)
    25     D.  Authority granted to my mental health care agent.
    26     I hereby grant to my agent full power and authority to make
    27     mental health care decisions for me consistent with the
    28     instructions and limitations set forth in this power of
    29     attorney. If I have not expressed a choice in this power of
    30     attorney, I authorize my agent to make the decision that my
    20030H2036B4723                 - 29 -     

     1     agent determines is the decision I would make if I were
     2     competent to do so.
     3         1.  Treatment preferences.
     4         (a)  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         (b)  Preferences regarding medications for psychiatric
    16     treatment.
    17     ( )  I consent to the medications that my agent agrees to
    18     after consultation with my treating physician and any other
    19     persons my agent considers appropriate.
    20     ( )  I consent to the medications that my agent agrees to,
    21     with the following exception or limitation:
    22                   (List exception or limitation)
    23     This exception or limitation applies to generic, brand name
    24     and trade name equivalents.
    25     ( )  My agent is not authorized to consent to the use of any
    26     medications.
    27         (c)  Preferences regarding electroconvulsive therapy
    28     (ECT).
    29     ( )  My agent is authorized to consent to the administration
    30     of electroconvulsive therapy.
    20030H2036B4723                 - 30 -     

     1     ( )  My agent is not authorized to consent to the
     2     administration of electroconvulsive therapy.
     3         (d)  Preferences for experimental studies or drug trials.
     4     ( )  My agent is authorized to consent to my participation in
     5     experimental studies if, after consultation with my treating
     6     physician and any other individuals my agent deems
     7     appropriate, my agent believes that the potential benefits to
     8     me outweigh the possible risks to me.
     9     ( )  My agent is not authorized to consent to my
    10     participation in experimental studies.
    11     ( )  My agent is authorized to consent to my participation in
    12     drug trials if, after consultation with my treating physician
    13     and any other individuals my agent deems appropriate, my
    14     agent believes that the potential benefits to me outweigh the
    15     possible risks to me.
    16     ( )  My agent is not authorized to consent to my
    17     participation in drug trials.
    18         (e)  Additional information and instructions.
    19     Examples of other information that may be included:
    20         Activities that help or worsen symptoms.
    21         Type of intervention preferred in the event of a
    22             crisis.
    23         Mental and physical health history.
    24         Dietary requirements.
    25         Religious preferences.
    26         Temporary custody of children.
    27         Family notification.
    28         Limitations on release or disclosure of mental
    29             health records.
    30         Other matters of importance.
    20030H2036B4723                 - 31 -     

     1     E.  Revocation.
     2     This power of attorney may be revoked in whole or in part at
     3     any time, either orally or in writing, as long as I have not
     4     been found to be incapable of making mental health decisions.
     5     My revocation will be effective upon communication to my
     6     attending physician or other mental health care provider,
     7     either by me or a witness to my revocation, of the intent to
     8     revoke. If I choose to revoke a particular instruction
     9     contained in this power of attorney in the manner specified,
    10     I understand that the other instructions contained in this
    11     power of attorney will remain effective until:
    12         (1)  I revoke this power of attorney in its entirety;
    13         (2)  I make a new mental health power of attorney; or
    14         (3)  two years after the date this document was executed.
    15     F.  Termination.
    16     I understand that this power of attorney will automatically
    17     terminate two years from the date of execution unless I am
    18     deemed incapable of making mental health care decisions at
    19     the time the power of attorney would expire.
    20     G.  Preference as to a court-appointed guardian.
    21     I understand that I may nominate a guardian of my person for
    22     consideration by the court if incapacity proceedings are
    23     commenced pursuant to 20 Pa.C.S. § 5511. I understand that
    24     the court will appoint a guardian in accordance with my most
    25     recent nomination except for good cause or disqualification.
    26     In the event a court decides to appoint a guardian, I desire
    27     the following person to be appointed:
    28     (Insert name, address, telephone number of designated person)
    29     ( )  The appointment of a guardian of my person will not give
    30     the guardian the power to revoke, suspend or terminate this
    20030H2036B4723                 - 32 -     

     1     power of attorney.
     2     ( )  Upon appointment of a guardian, I authorize the guardian
     3     to revoke, suspend or terminate this power of attorney.
     4     I am making this power of attorney on the (insert day) of
     5     (insert month), (insert year).
     6     My signature
     7     (My Name, address, telephone number)
     8     Witnesses' signatures:
     9     (Names, addresses, telephone numbers of witnesses)
    10     If the principal making this power of attorney is unable to
    11     sign it, another individual may sign on behalf of and at the
    12     direction of the principal.
    13     Signature of person signing on my behalf:
    14     Signature
    15     (Name, address telephone number)
    16  § 5834.  Operation.
    17     (a)  When operative.--A mental health power of attorney shall
    18  become operative when:
    19         (1)  A copy is provided to the attending physician.
    20         (2)  The conditions stated in the power of attorney are
    21     met.
    22     (b)  Invalidity of specific direction.--If a specific
    23  direction in a mental health power of attorney is held to be
    24  invalid, the invalidity does not negate other directions in the
    25  mental health power of attorney that can be effected without the
    26  invalid direction.
    27     (c)  Duration.--A mental health power of attorney shall be
    28  valid until revoked by the principal or until two years after
    29  the date of execution. If a mental health power of attorney for
    30  mental health treatment has been invoked and is in effect at the
    20030H2036B4723                 - 33 -     

     1  specified date of expiration after its execution, the mental
     2  health power of attorney shall remain effective until the
     3  principal is no longer incapable.
     4     (d)  Court approval unnecessary.--A mental health care
     5  decision made by a mental health care agent for a principal
     6  shall be effective without court approval.
     7  § 5835.  Appointment of mental health care agents.
     8     (a)  Successor mental health care agents.--A principal may
     9  appoint one or more successor agents who shall serve in the
    10  order named in the mental health power of attorney unless the
    11  principal expressly directs to the contrary.
    12     (b)  Who may not be appointed mental health care agent.--
    13  Unless related to the principal by blood, marriage or adoption,
    14  a principal may not appoint any of the following to be the
    15  mental health care agent:
    16         (1)  The principal's attending physician or other mental
    17     health care provider, or an employee of the attending
    18     physician or other mental health care provider.
    19         (2)  An owner, operator or employee of a residential
    20     facility in which the principal receives care.
    21  § 5836.  Authority of mental health care agent.
    22     (a)  Extent of authority.--Except as expressly provided
    23  otherwise in a mental health power of attorney and subject to
    24  subsections (b) and (c), a mental health care agent may make any
    25  mental health care decision and exercise any right and power
    26  regarding the principal's care, custody and mental health care
    27  treatment that the principal could have made and exercised.
    28     (b)  Powers not granted.--A mental health power of attorney
    29  may not convey the power to relinquish parental rights or
    30  consent to psychosurgery.
    20030H2036B4723                 - 34 -     

     1     (c)  Powers and duties only specifically granted.--Unless
     2  specifically included in a mental health power of attorney, the
     3  agent shall not have the power to consent to electroconvulsive
     4  therapy or to experimental procedures or research.
     5     (d)  Mental health care decisions.--After consultation with
     6  mental health care providers and after consideration of the
     7  prognosis and acceptable alternatives regarding diagnosis,
     8  treatments and side effects, a mental health care agent shall
     9  make mental health care decisions in accordance with the mental
    10  health care agent's understanding and interpretation of the
    11  instructions given by the principal at a time when the principal
    12  had the capacity to make and communicate mental health care
    13  decisions. Instructions include a declaration made by the
    14  principal and any clear written or verbal directions that cover
    15  the situation presented. In the absence of instructions, the
    16  mental health care agent shall make mental health care decisions
    17  conforming with the mental health care agent's assessment of the
    18  principal's preferences.
    19     (e)  Mental health care information.--
    20         (1)  Unless specifically provided otherwise in a mental
    21     health power of attorney, a mental health care agent shall
    22     have the same rights and limitations as the principal to
    23     request, examine, copy and consent or refuse to consent to
    24     the disclosure of mental health care information.
    25         (2)  Disclosure of mental health care information to a
    26     mental health care agent shall not be construed to constitute
    27     a waiver of any evidentiary privilege or right to assert
    28     confidentiality.
    29         (3)  A mental health care provider that discloses mental
    30     health care information to a mental health care agent in good
    20030H2036B4723                 - 35 -     

     1     faith shall not be liable for the disclosure.
     2         (4)  A mental health care agent may not disclose mental
     3     health care information regarding the principal except as is
     4     reasonably necessary to perform the agent's obligations to
     5     the principal or as otherwise required by law.
     6     (f)  Liability of agent.--A mental health care agent shall
     7  not be personally liable for the costs of care and treatment of
     8  the principal.
     9  § 5837.  Removal of agent.
    10     (a)  Grounds for removal.--A mental health care agent may be
    11  removed BY THE COURT for any of the following reasons:            <--
    12         (1)  Death or incapacity.
    13         (2)  Noncompliance with a mental health power of
    14     attorney.
    15         (3)  Physical assault or threats of harm.
    16         (4)  Coercion.
    17         (5)  Voluntary withdrawal by the agent.
    18         (6)  Divorce.
    19     (b)  Notice of voluntary withdrawal.--
    20         (1)  A mental health care agent who voluntarily withdraws
    21     shall inform the principal.
    22         (2)  If the mental health power of attorney is in effect,
    23     the agent shall notify providers of mental health treatment.
    24     (c)  Challenges.--Third parties may challenge the authority
    25  of a mental health agent in the orphan's court division of the
    26  court of common pleas.
    27     (d)  Effect of removal.--If a mental health power of attorney
    28  provides for a substitute agent, then the substitute agent shall
    29  assume responsibility when the agent is removed. If the power of
    30  attorney does not provide for a substitute, then a mental health
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     1  care provider shall follow any instructions in the power of
     2  attorney.
     3  § 5838.  Effect of divorce.
     4     If the spouse of a principal is designated as the principal's
     5  mental health care agent and thereafter either spouse files an
     6  action in divorce, the designation of the spouse as mental
     7  health care agent shall be revoked as of the time the action is
     8  filed unless it clearly appears from the mental health power of
     9  attorney that the designation was intended to continue to be
    10  effective notwithstanding the filing of an action in divorce by
    11  either spouse.
    12  § 5839.  Revocation.
    13     (a)  When a mental health power of attorney may be revoked.--
    14  A mental health power of attorney may be revoked by the
    15  principal at any time, either orally or in writing in whole or
    16  in part, unless the principal has been found to be incapable of
    17  making mental health treatment decisions or the principal has
    18  been involuntarily committed.
    19     (b)  Capacity to revoke.--Notwithstanding subsection (a),
    20  during a period of involuntary commitment pursuant to Article
    21  III of the act of July 9, 1976 (P.L.817, No.143), known as the
    22  Mental Health Procedures Act, a principal may revoke the mental
    23  health power of attorney only if found to be capable of making
    24  mental health decisions after examination by a psychiatrist and
    25  one of the following: another psychiatrist, a psychologist, a
    26  family physician, an attending physician or a mental health
    27  treatment professional. Whenever possible, at least one of the
    28  decision makers shall be a treating professional of the
    29  declarant or principal.
    30     (c)  Effect of revocation.--A revocation shall be effective
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     1  upon communication to the attending physician or other mental
     2  health care provider by the principal or a witness to the
     3  revocation of the intent to revoke.
     4     (d)  Mental health record.--The attending physician or other
     5  mental health care provider shall make the revocation or a
     6  finding of capacity part of the mental health record of the
     7  declarant.
     8     (e)  Reliance on mental health power of attorney.--A
     9  physician or other mental health care provider may rely on the
    10  effectiveness of a mental health power of attorney unless
    11  notified of its revocation.
    12     (f)  Subsequent action by agent.--A mental health care agent
    13  who has notice of the revocation of a mental health power of
    14  attorney may not make or attempt to make mental health care
    15  decisions for the principal.
    16  § 5840.  Amendment.
    17     While having the capacity to make mental health decisions, a
    18  principal may amend a mental health power of attorney by a
    19  writing executed in accordance with the provisions of section
    20  5832 (relating to execution).
    21  § 5841.  Relation of mental health care agent to court-appointed
    22             guardian and other agents.
    23     (a)  Procedure.--
    24         (1)  Upon  receipt of notice of a guardianship
    25     proceeding, a provider shall notify the court, and the agent
    26     at the guardianship proceeding, of the existence of a mental
    27     health advance directive.
    28         (2)  Upon receipt of a notice of guardianship proceeding,
    29     the agent shall inform the court of the contents of the
    30     mental health advance directive.
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     1     (b)  Accountability of mental health care agent.--
     2         (1)  If a principal who has executed a mental health
     3     power of attorney is later adjudicated an incapacitated
     4     person, the mental health power of attorney shall remain in
     5     effect.
     6         (2)  The court shall give preference to allowing the
     7     agent to continue making mental health care decisions as
     8     provided in the mental health advance directive unless the
     9     principal specified that the guardian has the power to
    10     terminate, revoke, or suspend the mental health power of
    11     attorney in the advance directive.
    12         (3)  If, after thorough examination, the court grants the
    13     powers contained in the mental health advance directive to
    14     the guardian, the guardian shall be bound by the same
    15     obligations as the agent would have been.
    16     (c)  Nomination of guardian of person.--In a mental health
    17  power of attorney, a principal may nominate the guardian of the
    18  person for the principal for consideration by the court if
    19  incapacity proceedings for the principal's person are thereafter
    20  commenced. If the court determines that the appointment of a
    21  guardian is necessary, the court shall appoint in accordance
    22  with the principal's most recent nomination except for good
    23  cause or disqualification.
    24  § 5842.  Duties of attending physician and mental health care
    25             provider.
    26     (a)  Compliance with decisions of mental health care agent.--
    27  Subject to any limitation specified in a mental health power of
    28  attorney, an attending physician or mental health care provider
    29  shall comply with a mental health care decision made by a mental
    30  health care agent to the same extent as if the decision had been
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     1  made by the principal.
     2     (b)  Mental health record.--
     3         (1)  An attending physician or mental health care
     4     provider who is given a mental health power of attorney shall
     5     arrange for the mental health power of attorney or a copy to
     6     be placed in the mental health record of the principal.
     7         (2)  An attending physician or mental health care
     8     provider to whom an amendment or revocation of a mental
     9     health power of attorney is communicated shall promptly enter
    10     the information in the mental health record of the principal
    11     and maintain a copy if one is furnished.
    12     (c)  Record of determination.--An attending physician who
    13  determines that a principal is unable to make or has regained
    14  the capacity to make mental health treatment decisions or makes
    15  a determination that affects the authority of a mental health
    16  care agent shall enter the determination in the mental health
    17  record of the principal and, if possible, promptly inform the
    18  principal and any mental health care agent of the determination.
    19  § 5843.  Construction.
    20     (a)  General rule.--Nothing in this subchapter shall be
    21  construed to:
    22         (1)  Affect the requirements of other laws of this
    23     Commonwealth regarding consent to observation, diagnosis,
    24     treatment or hospitalization for a mental illness.
    25         (2)  Authorize a mental health care agent to consent to
    26     any mental health care prohibited by the laws of this
    27     Commonwealth.
    28         (3)  Affect the laws of this Commonwealth regarding any
    29     of the following:
    30             (i)  The standard of care of a mental health care
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     1         provider required in the administration of mental health
     2         care or the clinical decision-making authority of the
     3         mental health care provider.
     4             (ii)  When consent is required for mental health
     5         care.
     6             (iii)  Informed consent for mental health care.
     7         (4)  Affect the ability to admit a person to a mental
     8     health facility under the voluntary and involuntary
     9     commitment provisions of the act of July 9, 1976 (P.L.817,
    10     No.143), known as the Mental Health Procedures Act.
    11     (b)  Disclosure.--
    12         (1)  The disclosure requirements of section 5836(e)
    13     (relating to authority of mental health care agent) shall
    14     supersede any provision in any other State statute or
    15     regulation that requires a principal to consent to disclosure
    16     or which otherwise conflicts with section 5836(e), including,
    17     but not limited to, the following:
    18             (i)  The act of April 14, 1972 (P.L.221, No.63),
    19         known as the Pennsylvania Drug and Alcohol Abuse Control
    20         Act.
    21             (ii)  Section 111 of the act of July 9, 1976
    22         (P.L.817, No.143), known as the Mental Health Procedures
    23         Act.
    24             (iii)  The act of October 5, 1978 (P.L.1109, No.261),
    25         known as the Osteopathic Medical Practice Act.
    26             (iv)  Section 41 of the act of December 20, 1985
    27         (P.L.457, No.112), known as the Medical Practice Act of
    28         1985.
    29             (v)  The act of November 29, 1990 (P.L.585, No.148),
    30         known as the Confidentiality of HIV-Related Information
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     1         Act.
     2         (2)  The disclosure requirements under section 5836(e)
     3     shall not apply to the extent that the disclosure would be
     4     prohibited by Federal law and implementing regulations.
     5     (c)  Notice and acknowledgment requirements.--The notice and
     6  acknowledgment requirements of section 5601(c) and (d) (relating
     7  to general provisions) shall not apply to a power of attorney
     8  that provides exclusively for mental health care decision
     9  making.
    10     (d)  Legal remedies.--Nothing in this act CHAPTER shall        <--
    11  prohibit an interested party from using the same legal remedies
    12  that are otherwise available to seek a determination from the
    13  courts including invalidation of some or all of the declaration
    14  or the mental health power of attorney, in cases of potential
    15  irreparable harm or death. The courts shall have 72 hours from
    16  the time of application for remedy in which to make this
    17  determination.
    18     (D)  LEGAL REMEDIES.--AN INTERESTED PARTY MAY FILE A PETITION  <--
    19  SEEKING A DETERMINATION THAT FOLLOWING THE DIRECTIONS IN THE
    20  DECLARATION OR THE MENTAL HEALTH POWER OF ATTORNEY, MAY CAUSE
    21  POTENTIAL IRREPARABLE HARM OR DEATH. IN THAT EVENT, THE COURT
    22  MAY INVALIDATE SOME OR ALL OF THE PROVISIONS AND ISSUE ORDERS
    23  APPROPRIATE TO THE CIRCUMSTANCES AUTHORIZING TREATMENT. THE
    24  COURTS SHALL ISSUE AN ORDER WITHIN 72 HOURS FROM THE FILING OF
    25  THE PETITION.
    26  § 5844.  Conflicting mental health powers of attorney             <--
    27         PROVISIONS.                                                <--
    28     If a provision of a mental health power of attorney conflicts  <--
    29  with another provision of a mental health power CONFLICTS WITH:   <--
    30         (1)  THE PROVISION OF ANOTHER MENTAL HEALTH POWER of
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     1     attorney or with a provision of a declaration, the provision
     2     of the instrument latest in date of execution shall prevail
     3     to the extent of the conflict.
     4         (2)  A POWER OF ATTORNEY, THE PROVISION IN THE MENTAL      <--
     5     HEALTH POWER OF ATTORNEY SHALL PREVAIL TO THE EXTENT OF THE
     6     CONFLICT, REGARDLESS OF THE DATE OF EXECUTION.
     7  § 5845.  Validity.
     8     This subchapter shall not be construed to limit the validity
     9  of a health care power of attorney executed prior to the
    10  effective date of this subchapter. A mental health power of
    11  attorney executed in another state or jurisdiction and in
    12  conformity with the laws of that state or jurisdiction shall be
    13  considered valid in this Commonwealth, except to the extent that
    14  the mental health power of attorney executed in another state or
    15  jurisdiction would allow a mental health care agent to make a
    16  mental health care decision inconsistent with the laws of this
    17  Commonwealth.
    18     Section 2.  The provisions of this act are severable. If any
    19  provision of this act or its application to any person or
    20  circumstance is held invalid, the invalidity shall not affect
    21  other provisions or applications of this act which can be given
    22  effect without the invalid provision or application.
    23     Section 3.  This act shall take effect in 60 days.





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