SENATE AMENDED PRIOR PRINTER'S NOS. 2739, 4166, 4270, PRINTER'S NO. 4779 4383, 4723
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 18, 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; FURTHER <-- 4 PROVIDING FOR THE PRUDENT INVESTOR RULE; AND REPEALING 5 PROVISIONS RELATING TO THE APPLICABILITY OF REQUIREMENTS FOR 6 CHARITABLE TRUSTS WITH CONTROLLING INTERESTS IN CERTAIN 7 CORPORATIONS. 8 The General Assembly of the Commonwealth of Pennsylvania 9 hereby enacts as follows: 10 Section 1. Title 20 of the Pennsylvania Consolidated 11 Statutes is amended by adding a chapter to read: 12 CHAPTER 58 13 MENTAL HEALTH CARE 14 Subchapter 15 A. General Provisions
1 B. Mental Health Declarations 2 C. Mental Health Powers of Attorney 3 SUBCHAPTER A 4 GENERAL PROVISIONS 5 Sec. 6 5801. Applicability. 7 5802. Definitions. 8 5803. Legislative findings and intent. 9 5804. Compliance. 10 5805. Liability. 11 5806. Penalties. 12 5807. Rights and responsibilities. 13 5808. Combining mental health care instruments. 14 § 5801. Applicability. 15 (a) General rule.--This chapter applies to mental health 16 declarations and mental health powers of attorney. 17 (b) Preservation of existing rights.--The provisions of this 18 chapter shall not be construed to impair or supersede any 19 existing rights or responsibilities not addressed in this 20 chapter. 21 § 5802. Definitions. 22 The following words and phrases when used in this chapter 23 shall have the meanings given to them in this section unless the 24 context clearly indicates otherwise: 25 "Attending physician." A physician who has primary 26 responsibility for the treatment and care of the declarant or 27 principal. 28 "Declarant." An individual who makes a declaration in 29 accordance with this chapter. 30 "Declaration." A writing made in accordance with this 20030H2036B4779 - 2 -
1 chapter that expresses a declarant's wishes and instructions for 2 mental health care and mental health care directions and which 3 may contain other specific directions. 4 "Mental health care." Any care, treatment, service or 5 procedure to maintain, diagnose, treat or provide for mental 6 health, including any medication program and therapeutical 7 treatment. 8 "Mental health care agent." An individual designated by a 9 principal in a mental health power of attorney. 10 "Mental health power of attorney." A writing made by a <-- 11 principal designating an individual to make mental health care 12 decisions for the principal. 13 "Mental health care provider." A person who is licensed, 14 certified or otherwise authorized by the laws of this 15 Commonwealth to administer or provide mental health care in the 16 ordinary course of business or practice of a profession. 17 "MENTAL HEALTH POWER OF ATTORNEY." A WRITING MADE BY A <-- 18 PRINCIPAL DESIGNATING AN INDIVIDUAL TO MAKE MENTAL HEALTH CARE 19 DECISIONS FOR THE PRINCIPAL. 20 "Mental health treatment professional." A licensed physician 21 who has successfully completed a residency program in psychiatry 22 or a person trained and licensed in social work, psychology or 23 nursing who has a graduate degree and clinical experience in 24 mental health. 25 "Principal." An individual who makes a mental health power 26 of attorney in accordance with this chapter. 27 § 5803. Legislative findings and intent. 28 (a) Intent.--This chapter provides a means for competent 29 adults to control their mental health care either directly 30 through instructions written in advance or indirectly through a 20030H2036B4779 - 3 -
1 mental health care agent. 2 (b) Presumption not created.--This chapter shall not be 3 construed to create any presumption regarding the intent of an 4 individual who has not executed a declaration or mental health 5 care power of attorney to consent to the use or withholding of 6 treatment. 7 (c) Findings in general.--The General Assembly finds that 8 all capable adults have a qualified right to control decisions 9 relating to their own mental health care. 10 § 5804. Compliance. 11 (a) Duty to comply.-- 12 (1) An attending physician and mental health care 13 provider shall comply with mental health declarations and 14 powers of attorney. 15 (2) If an attending physician or other mental health 16 care provider cannot in good conscience comply with a 17 declaration or mental health care decision of a mental health 18 care agent because the instructions are contrary to accepted 19 clinical practice and medical standards or because treatment 20 is unavailable or if the policies of a mental health care 21 provider preclude compliance with a declaration or mental 22 health care decision of a mental health care agent, 23 immediately upon receipt of the declaration or power of 24 attorney, and as soon as any possibility of noncompliance 25 becomes apparent, the attending physician or mental health 26 care provider shall so inform the following: 27 (i) The declarant, if the declarant is competent. 28 (ii) The substitute named in the declaration, if the 29 declarant is incompetent. 30 (iii) The guardian or other legal representative of 20030H2036B4779 - 4 -
1 the declarant, if the declarant is incompetent and a
2 substitute is not named in the declaration.
3 (iv) The mental health care agent of the principal.
4 (3) The physician or mental health care provider shall
5 document the reasons for noncompliance.
6 (b) Transfer.--An attending physician or mental health care
7 provider under subsection (a)(2) shall make every reasonable
8 effort to assist in the transfer of the declarant or principal
9 to another physician or mental health care provider who will
10 comply with the declaration or mental health care decision of
11 the mental health care agent. While the transfer is pending, the
12 patient shall be treated consistent with the advance directive <--
13 DECLARATION OR MENTAL HEALTH CARE DECISION OF THE MENTAL HEALTH <--
14 AGENT. If reasonable efforts to transfer fail, the patient may
15 be discharged.
16 § 5805. Liability.
17 (a) General rule.--A person who is a physician, another
18 mental health care provider or another person who acts in good
19 faith and consistent with this chapter may not be subject to
20 criminal or civil liability, discipline for unprofessional
21 conduct or administrative sanctions and may not be found to have
22 committed an act of unprofessional conduct by any professional
23 board or administrative body with such authority as a result of
24 any of the following:
25 (1) Complying with a direction or decision of an
26 individual who the person believes in good faith has
27 authority to act as a principal's mental health care agent so
28 long as the direction or decision is not clearly contrary to
29 the terms of the mental health power of attorney.
30 (2) Refusing to comply with a direction or decision of
20030H2036B4779 - 5 -
1 an individual based on a good faith belief that the 2 individual lacks authority to act as a principal's mental 3 health care agent. 4 (3) Complying with a mental health care power of 5 attorney or declaration under the assumption that it was 6 valid when made and has not been amended or revoked. 7 (4) Disclosing mental health care information to another 8 person based upon a good faith belief that the disclosure is 9 authorized, permitted or required by this chapter. 10 (5) Refusing to comply with the direction or decision of 11 an individual due to conflicts with a provider's contractual, 12 network or payment policy restrictions. 13 (6) Refusing to comply with a mental health directive <-- 14 DECLARATION OR MENTAL HEALTH POWER OF ATTORNEY which violates <-- 15 accepted clinical standards or medical standards of care. 16 (7) Making a determination that the patient lacks 17 capacity to make mental health decisions that causes a mental <-- 18 health advance directive DECLARATION OR A MENTAL HEALTH POWER <-- 19 OF ATTORNEY to become effective. 20 (8) Failing to determine that a patient lacks capacity 21 to make mental health decisions for the purposes of this act <-- 22 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 power of attorney may not be subject to civil or criminal 30 liability for acting in good faith for a principal or failing in 20030H2036B4779 - 6 -
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 power of attorney or
10 any amendment or revocation thereof without the consent of
11 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 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 mental health power of attorney may be removed and
21 sued for actual damages.
22 § 5807. Rights and responsibilities.
23 (a) Declarants and principals.--Persons who execute a
24 declaration or a mental health power of attorney shall have the
25 following rights and responsibilities:
26 (1) For the purposes of this act CHAPTER, persons are <--
27 presumed capable of making mental health decisions, including
28 the execution of a mental health declaration or power of
29 attorney, unless they are adjudicated incapacitated,
30 involuntarily committed or found to be incapable of making
20030H2036B4779 - 7 -
1 mental health decisions after examination by a psychiatrist 2 and one of the following: another psychiatrist, psychologist, 3 family physician, attending physician or mental health 4 treatment professional. Whenever possible, at least one of 5 the decision makers shall be a treating professional of the 6 declarant or principal. 7 (2) Persons shall be required to notify their mental 8 health care provider of the existence of any declaration or 9 mental health power of attorney. 10 (3) Persons shall execute or amend their declarations or 11 mental health powers of attorney every two years, however if 12 a person is incapable of making mental heath care decisions 13 at the time this document would expire, the document shall 14 remain in effect and be reviewed at the time when the person 15 regains capacity. 16 (4) Persons shall give notice of amendment and 17 revocation to providers, agents and guardians, if any. 18 (b) Providers.--Mental health treatment providers shall have 19 the following rights and responsibilities: 20 (1) Inquire as to the existence of declarations or 21 powers of attorney for persons in their care. 22 (2) Inform persons who are being discharged from 23 treatment about the availability of mental health 24 declarations and powers of attorney as part of discharge 25 planning. 26 (3) Not require declarations or powers of attorney as 27 conditions of treatment. Mental health treatment providers 28 may not choose whether to accept a person for treatment based 29 solely on the existence or absence of a mental health 30 declaration or power of attorney. 20030H2036B4779 - 8 -
1 § 5808. Combining mental health instruments. 2 (a) General rule.--A declaration and mental health power of 3 attorney may be combined into one mental health document. 4 (b) Form.--A combined declaration and mental health power of 5 attorney may be in the following form or any other written form 6 which contains the information required under Subchapters B 7 (relating to mental health care declarations) and C (relating to <-- 8 mental health care powers of attorney): <-- 9 Combined Mental Health Care Declaration 10 and Power of Attorney Form 11 Part I. Introduction. 12 I, , having capacity to make mental health 13 decisions, willfully and voluntarily make this declaration 14 and power of attorney regarding my mental health care. 15 I understand that mental health care includes any care, 16 treatment, service or procedure to maintain, diagnose, treat 17 or provide for mental health, including any medication 18 program and therapeutic treatment. Electroconvulsive therapy 19 may be administered only if I have specifically consented to 20 it in this document. I will be the subject of laboratory 21 trials or research only if specifically provided for in this 22 document. Mental health care does not include psychosurgery 23 or termination of parental rights. 24 I understand that my incapacity will be determined by 25 examination by a psychiatrist and one of the following: 26 another psychiatrist, psychologist, family physician, 27 attending physician or mental health treatment professional. 28 Whenever possible, one of the decision makers will be one of 29 my treating professionals. 30 Part II. Mental Health Declaration. 20030H2036B4779 - 9 -
1 A. When this declaration becomes effective. 2 This declaration becomes effective at the following 3 designated time: 4 ( ) When I am deemed incapable of making mental health care 5 decisions. 6 ( ) When the following condition is met: 7 (List condition) 8 B. Treatment preferences. 9 1. Choice of treatment facility. 10 ( ) In the event that I require commitment to a psychiatric 11 treatment facility, I would prefer to be admitted to the 12 following facility: 13 (Insert name and address of facility) 14 ( ) In the event that I require commitment to a psychiatric 15 treatment facility, I do not wish to be committed to the 16 following facility: 17 (Insert name and address of facility) 18 I understand that my physician may have to place me in a 19 facility that is not my preference. 20 2. Preferences regarding medications for psychiatric 21 treatment. 22 ( ) I consent to the medications that my treating physician 23 recommends. 24 ( ) I consent to the medications that my treating physician 25 recommends with the following exception, preference or 26 limitation: 27 (List medication and reason for exception, preference or 28 limitation) 29 The exception, preference or limitation applies to generic, 30 brand name and trade name equivalents. I understand that 20030H2036B4779 - 10 -
1 dosage instructions are not binding on my physician. 2 ( ) I do not consent to the use of any medications. 3 ( ) I have designated an agent under the power of attorney 4 portion of this document to make decisions related to 5 medication. 6 3. Preferences regarding electroconvulsive therapy 7 (ECT). 8 ( ) I consent to the administration of electroconvulsive 9 therapy. 10 ( ) I do not consent to the administration of 11 electroconvulsive therapy. 12 ( ) I have designated an agent under the power of attorney 13 portion of this document to make decisions related to 14 electroconvulsive therapy. 15 4. Preferences for experimental studies or drug trials. 16 ( ) I consent to participation in experimental studies if my 17 treating physician believes that the potential benefits to me 18 outweigh the possible risks to me. 19 ( ) I have designated an agent under the power of attorney 20 portion of this document to make decisions related to 21 experimental studies. 22 ( ) I do not consent to participation in experimental 23 studies. 24 ( ) I consent to participation in drug trials if my treating 25 physician believes that the potential benefits to me outweigh 26 the possible risks to me. 27 ( ) I have designated an agent under the power of attorney 28 portion of this document to make decisions related to drug 29 trials. 30 ( ) I do not consent to participation in any drug trials. 20030H2036B4779 - 11 -
1 5. Additional instructions or information. 2 Examples of other instructions or information that may be 3 included: 4 Activities that help or worsen symptoms. 5 Type of intervention preferred in the event of a 6 crisis. 7 Mental and physical health history. 8 Dietary requirements. 9 Religious preferences. 10 Temporary custody of children. 11 Family notification. 12 Limitations on the release or disclosure of 13 mental health records. 14 Other matters of importance. 15 C. Revocation. 16 This declaration may be revoked in whole or in part at any 17 time, either orally or in writing, as long as I have not been 18 found to be incapable of making mental health decisions. 19 My revocation will be effective upon communication to my 20 attending physician or other mental health care provider, 21 either by me or a witness to my revocation, of the intent to 22 revoke. If I choose to revoke a particular instruction 23 contained in this declaration in the manner specified, I 24 understand that the other instructions contained in this 25 declaration will remain effective until: 26 (1) I revoke this declaration in its entirety; 27 (2) I make a new combined mental health declaration and 28 power of attorney; or 29 (3) two years after the date this document was executed. 30 D. Termination. 20030H2036B4779 - 12 -
1 I understand that this declaration will automatically 2 terminate two years from the date of execution, unless I am 3 deemed incapable of making mental health care decisions at 4 the time that this declaration would expire. 5 (Specify date) 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 under 20 Pa.C.S. § 5511. I understand that the 10 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, telephone number of the designated 15 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 Part III. Mental Health Power of Attorney. 22 I, , having the capacity to make mental health 23 decisions, authorize my designated health care agent to make 24 certain decisions on my behalf regarding my mental health 25 care. If I have not expressed a choice in this document or in 26 the accompanying declaration, I authorize my agent to make 27 the decision that my agent determines is the decision I would 28 make if I were competent to do so. 29 A. Designation of agent. 30 I hereby designate and appoint the following person as my 20030H2036B4779 - 13 -
1 agent to make mental health care decisions for me as 2 authorized in this document. This authorization applies only 3 to mental health decisions that are not addressed in the 4 accompanying signed declaration. 5 (Insert name of designated person) 6 Signed: 7 (My name, address, telephone number) 8 (Witnesses signatures) 9 (Insert names, addresses, telephone numbers of witnesses) 10 Agent's acceptance: 11 I hereby accept designation as mental health care agent for 12 (Insert name of declarant) 13 Agent's signature: 14 (Insert name, address, telephone number of designated person) 15 B. Designation of alternative agent. 16 In the event that my first agent is unavailable or unable to 17 serve as my mental health care agent, I hereby designate and 18 appoint the following individual as my alternative mental 19 health care agent to make mental health care decisions for me 20 as authorized in this document: 21 (Insert name of designated person) 22 Signed: 23 (My name, address, telephone number) 24 (Witnesses signatures) 25 (Insert names, addresses, telephone numbers of witnesses) 26 Alternative agent's acceptance: 27 I hereby accept designation as alternative mental health care 28 agent for (Insert name of declarant) 29 Alternative agent's signature: 30 (Insert name, address, telephone number of alternative agent) 20030H2036B4779 - 14 -
1 C. When this power of attorney become effective. 2 This power of attorney will become effective at the following 3 designated time: 4 ( ) When I am deemed incapable of making mental health care 5 decisions. 6 ( ) When the following condition is met: 7 (List condition) 8 D. Authority granted to my mental health care agent. 9 I hereby grant to my agent full power and authority to make 10 mental health care decisions for me consistent with the 11 instructions and limitations set forth in this document. If I 12 have not expressed a choice in this power of attorney, or in 13 the accompanying declaration, I authorize my agent to make 14 the decision that my agent determines is the decision I would 15 make if I were competent to do so. 16 (1) Preferences regarding medications for psychiatric 17 treatment. 18 ( ) My agent is authorized to consent to the use of any 19 medications after consultation with my treating psychiatrist 20 and any other persons my agent considers appropriate. 21 ( ) My agent is not authorized to consent to the use of any 22 medications. 23 (2) Preferences regarding electroconvulsive therapy 24 (ECT). 25 ( ) My agent is authorized to consent to the administration 26 of electroconvulsive therapy. 27 ( ) My agent is not authorized to consent to the 28 administration of electroconvulsive therapy. 29 (3) Preferences for experimental studies or drug trials. 30 ( ) My agent is authorized to consent to my participation in 20030H2036B4779 - 15 -
1 experimental studies if, after consultation with my treating 2 physician and any other individuals my agent deems 3 appropriate, my agent believes that the potential benefits to 4 me outweigh the possible risks to me. 5 ( ) My agent is not authorized to consent to my participation 6 in experimental studies. 7 ( ) My agent is authorized to consent to my participation in 8 drug trials if, after consultation with my treating physician 9 and any other individuals my agent deems appropriate, my 10 agent believes that the potential benefits to me outweigh the 11 possible risks to me. 12 ( ) My agent is not authorized to consent to my participation 13 in drug trials. 14 E. Revocation. 15 This power of attorney may be revoked in whole or in part at 16 any time, either orally or in writing, as long as I have not 17 been found to be incapable of making mental health 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, of the intent to 21 revoke. If I choose to revoke a particular instruction 22 contained in this power of attorney in the manner specified, 23 I understand that the other instructions contained in this 24 power of attorney will remain effective until: 25 (1) I revoke this power of attorney in its entirety; 26 (2) I make a new combined mental health care declaration 27 and power of attorney; or 28 (3) two years from the date this document was executed. 29 I understand that this power of attorney will automatically 30 terminate two years from the date of execution unless I am 20030H2036B4779 - 16 -
1 deemed incapable of making mental health care decisions at 2 the time that the power of attorney would expire. 3 I am making this combined mental health care declaration and 4 power of attorney on the (insert day) day of (insert month), 5 (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 combined mental health care 11 declaration and power of attorney is unable to sign this 12 document, another individual may sign on behalf of and at the 13 direction of the principal. 14 Signature of person signing on my behalf: 15 Signature 16 (Name, address, telephone number) 17 SUBCHAPTER B 18 MENTAL HEALTH DECLARATIONS 19 Sec. 20 5821. Short title of subchapter. 21 5822. Execution. 22 5823. Form. 23 5824. Operation. 24 5825. Revocation. 25 5826. Amendment. 26 § 5821. Short title of subchapter. 27 This subchapter shall be known and may be cited as the 28 Advance Directive for Mental Health Act. 29 § 5822. Execution. 30 (a) Who may make.--An individual who is at least 18 years of 20030H2036B4779 - 17 -
1 age or an emancipated minor and has not been deemed 2 incapacitated pursuant to section 5511 (relating to petition and 3 hearing; independent evaluation) or severely mentally disabled 4 pursuant to Article III of the act of July 9, 1976 (P.L.817, 5 No.143), known as the Mental Health Procedures Act, may make a 6 declaration governing the initiation, continuation, withholding 7 or withdrawal of mental health treatment. 8 (b) Requirements.--A declaration must be: 9 (1) Dated and signed by the declarant by signature or 10 mark or by another individual on behalf of and at the 11 direction of the declarant. 12 (2) Witnessed by two individuals, each of whom must be 13 at least 18 years of age. 14 (c) Witnesses.-- 15 (1) An individual who signs a declaration on behalf of 16 and at the direction of a declarant may not witness the 17 declaration. 18 (2) A mental health care provider and its agent may not 19 sign a declaration on behalf of and at the direction of a 20 declarant if the mental health care provider or agent 21 provides mental health care services to the declarant. 22 § 5823. Form. 23 A declaration may be in the following form or any other 24 written form that expresses the wishes of a declarant regarding 25 the initiation, continuation or refusal of mental health 26 treatment and may include other specific directions, including, 27 but not limited to, designation of another individual to make 28 mental health treatment decisions for the declarant if the 29 declarant is incapable of making mental health decisions: 30 Mental Health Declaration. 20030H2036B4779 - 18 -
1 I, , having the capacity to make mental 2 health decisions, willfully and voluntarily make this 3 declaration regarding my mental health care. 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 will be one of 18 my treating professionals. 19 A. When this declaration becomes effective. 20 This declaration becomes effective at the following 21 designated time: 22 ( ) When I am deemed incapable of making mental health care 23 decisions. 24 ( ) When the following condition is met: 25 (List condition) 26 B. Treatment preferences. 27 1. Choice of treatment facility. 28 ( ) In the event that I require commitment to a psychiatric 29 treatment facility, I would prefer to be admitted to the 30 following facility: 20030H2036B4779 - 19 -
1 (Insert name and address of facility) 2 ( ) In the event that I require commitment to a psychiatric 3 treatment facility, I do not wish to be committed to the 4 following facility: 5 (Insert name and address of facility) 6 I understand that my physician may have to place me in a 7 facility that is not my preference. 8 2. Preferences regarding medications for psychiatric 9 treatment. 10 ( ) I consent to the medications that my treating physician 11 recommends with the following exception, preference or 12 limitation: 13 (List medication and reason for exception, preference or 14 limitation) 15 This exception, preference or limitation applies to generic, 16 brand name and trade name equivalents. I understand that 17 dosage instructions are not binding on my physician. 18 ( ) I do not consent to the use of any medications. 19 3. Preferences regarding electroconvulsive therapy 20 (ECT). 21 ( ) I consent to the administration of electroconvulsive 22 therapy. 23 ( ) I do not consent to the administration of 24 electroconvulsive therapy. 25 4. Preferences for experimental studies or drug trials. 26 ( ) I consent to participation in experimental studies if my 27 treating physician believes that the potential benefits to me 28 outweigh the possible risks to me. 29 ( ) I do not consent to participation in experimental 30 studies. 20030H2036B4779 - 20 -
1 ( ) I consent to participation in drug trials if my treating 2 physician believes that the potential benefits to me outweigh 3 the possible risks to me. 4 ( ) I do not consent to participation in any drug trials. 5 5. Additional instructions or information. 6 Examples of other instructions or information that may be 7 included: 8 Activities that help or worsen symptoms. 9 Type of intervention preferred in the event of a 10 crisis. 11 Mental and physical health history. 12 Dietary requirements. 13 Religious preferences. 14 Temporary custody of children. 15 Family notification. 16 Limitations on the release or disclosure of mental 17 health records. 18 Other matters of importance. 19 C. Revocation. 20 This declaration may be revoked in whole or in part at any 21 time, either orally or in writing, as long as I have not been 22 found to be incapable of making mental health decisions. 23 My revocation will be effective upon communication to my 24 attending physician or other mental health care provider, 25 either by me or a witness to my revocation, of the intent to 26 revoke. If I choose to revoke a particular instruction 27 contained in this declaration in the manner specified, I 28 understand that the other instructions contained in this 29 declaration will remain effective until: 30 (1) I revoke this declaration in its entirety; 20030H2036B4779 - 21 -
1 (2) I make a new mental health care declaration; or 2 (3) two years after the date this document was executed. 3 D. Termination. 4 I understand that this declaration will automatically 5 terminate two years from the date of execution unless I am 6 deemed incapable of making mental health care decisions at 7 the time that the declaration would expire. 8 E. Preference as to a court-appointed guardian. 9 I understand that I may nominate a guardian of my person for 10 consideration by the court if incapacity proceedings are 11 commenced pursuant to 20 Pa.C.S. § 5511. I understand that 12 the court will appoint a guardian in accordance with my most 13 recent nomination except for good cause or disqualification. 14 In the event a court decides to appoint a guardian, I desire 15 the following person to be appointed: 16 (Insert name, address and telephone number 17 of designated person) 18 ( ) The appointment of a guardian of my person will not give 19 the guardian the power to revoke, suspend or terminate this 20 declaration. 21 ( ) Upon appointment of a guardian, I authorize the guardian 22 to revoke, suspend or terminate this declaration. 23 I am making this declaration on the (insert day) 24 day of (insert month), (insert year). 25 My signature: (My name, address, telephone number) 26 Witnesses' signatures: (Names, addresses, telephone numbers 27 of witnesses) 28 If the principal making this declaration is unable to sign 29 it, another individual may sign on behalf of and at the 30 direction of the principal. 20030H2036B4779 - 22 -
1 Signature of person signing on my behalf: 2 (Name, address and telephone number) 3 § 5824. Operation. 4 (a) When operative.--A declaration becomes operative when: 5 (1) A copy is provided to the attending physician. 6 (2) The conditions stated in the declaration are met. 7 (b) Compliance.--When a declaration becomes operative, the 8 attending physician and other mental health care providers shall 9 act in accordance with its provisions or comply with the 10 transfer provisions of section 5804 (relating to compliance). 11 (c) Invalidity of specific direction.--If a specific 12 direction in the declaration is held to be invalid, the 13 invalidity shall not be construed to negate other directions in 14 the declaration that can be effected without the invalid 15 direction. 16 (d) Mental health record.--A physician or other mental 17 health care provider to whom a copy of a declaration is 18 furnished shall make it a part of the mental health record of 19 the declarant, for at least two years from the date of 20 execution, and if unwilling to comply with the declaration, 21 promptly so advise those listed in section 5804(a)(2). 22 (e) Duration.--A declaration shall be valid until revoked by 23 the declarant or until two years from the date of execution. If 24 a declaration for mental health treatment has been invoked and 25 is in effect at the specified expiration date after its 26 execution, the declaration shall remain effective until the 27 principal is no longer incapable. 28 (f) Absence of declaration.--If an individual does not make 29 a declaration, a presumption does not arise regarding the intent 30 of the individual to consent to or to refuse a mental health 20030H2036B4779 - 23 -
1 treatment. 2 § 5825. Revocation. 3 (a) When declaration may be revoked.--A declaration may be 4 revoked by the declarant at any time, either orally or in 5 writing in whole or in part unless the individual has been found 6 to be incapable of making mental health decisions or the 7 individual has been involuntarily committed. 8 (b) Capacity to revoke.--Subsection (a) notwithstanding, 9 during a period of involuntary commitment pursuant to Article 10 III of the act of July 9, 1976 (P.L.817, No.143), known as the 11 Mental Health Procedures Act, a declarant may revoke the 12 declaration only if found to be capable of making mental health 13 decisions after examination by a psychiatrist and one of the 14 following: another psychiatrist, a psychologist, family 15 physician, attending physician or mental treatment professional. 16 Whenever possible, at least one of the decision makers shall be 17 a treating professional of the declarant or principal. 18 (c) Effect of revocation.--A revocation of a declaration 19 shall be effective upon communication to the attending physician 20 or other mental health care provider by the declarant or a 21 witness to the revocation of the intent to revoke. 22 (d) Mental health record.--An attending physician or other 23 mental health care provider shall make revocation, a finding of 24 capacity or a declaration part of the mental health record of 25 the declarant. 26 § 5826. Amendment. 27 (a) Capacity to amend.--While having the capacity to make 28 mental health decisions, a declarant may amend a declaration by 29 a writing executed in accordance with the provisions of section 30 5822 (relating to execution). 20030H2036B4779 - 24 -
1 (b) Determination of capacity.--During the period of
2 involuntary treatment pursuant to Article III of the act of July
3 9, 1976 (P.L.817, No.143), known as the Mental Health Procedures
4 Act, a declarant may amend the declaration if the individual is
5 found to be capable of making mental health decisions after
6 examination by a psychiatrist and one of the following: another
7 psychiatrist, a psychologist, family physician, attending
8 physician or mental health treatment professional. Whenever
9 possible, at least one of the decision makers shall be a
10 treating professional of the declarant or principal.
11 SUBCHAPTER C
12 MENTAL HEALTH POWERS OF ATTORNEY
13 Sec.
14 5831. Short title of subchapter.
15 5832. Execution.
16 5833. Form.
17 5834. Operation.
18 5835. Appointment of mental health care agents.
19 5836. Authority of mental health care agent.
20 5837. Removal of agent.
21 5838. Effect of divorce.
22 5839. Revocation.
23 5840. Amendment.
24 5841. Relation of mental health care agent to court-appointed
25 guardian and other agents.
26 5842. Duties of attending physician and mental health care
27 provider.
28 5843. Construction.
29 5844. Conflicting mental health care powers of attorney <--
30 PROVISIONS. <--
20030H2036B4779 - 25 -
1 5845. Validity. 2 § 5831. Short title of subchapter. 3 This subchapter shall be known and may be cited as the Mental 4 Health Care Agents Act. 5 § 5832. Execution. 6 (a) Who may make.--An individual who is at least 18 years of 7 age or an emancipated minor and who has not been deemed 8 incapacitated pursuant to section 5511 (relating to petition and 9 hearing; independent evaluation) or found to be severely 10 mentally disabled pursuant to Article III of the act of July 9, 11 1976 (P.L.817, No.143), known as the Mental Health Procedures 12 Act, may make a mental health power of attorney governing the 13 initiation, continuation, withholding or withdrawal of mental 14 health treatment. 15 (b) Requirements.--A mental health power of attorney must 16 be: 17 (1) Dated and signed by the principal by signature or 18 mark or by another individual on behalf of and at the 19 direction of the principal. 20 (2) Witnessed by two individuals, each of whom must be 21 at least 18 years of age. 22 (c) Witnesses.-- 23 (1) An individual who signs a mental health power of 24 attorney on behalf of and at the direction of a principal may 25 not witness the mental health power of attorney. 26 (2) A mental health care provider and its agent may not 27 sign a mental health power of attorney on behalf of and at 28 the direction of a principal if the mental health care 29 provider or agent provides mental health care services to the 30 principal. 20030H2036B4779 - 26 -
1 § 5833. Form.
2 (a) Requirements.--A mental health power of attorney must do
3 the following:
4 (1) Identify the principal and appoint the mental health
5 care agent.
6 (2) Declare that the principal authorizes the mental
7 health care agent to make mental health care decisions on
8 behalf of the principal.
9 (b) Optional provisions.--A mental health power of attorney
10 may:
11 (1) Describe any limitations that the principal imposes
12 upon the authority of the mental health care agent.
13 (2) Indicate the intent of the principal regarding the
14 initiation, continuation or refusal of mental health
15 treatment.
16 (3) Nominate a guardian of the person of the principal
17 as provided in section 5511 SUBCHAPTER C OF CHAPTER 55 <--
18 (relating to appointment of guardian; BONDS; REMOVAL AND <--
19 DISCHARGE).
20 (4) Contain other provisions as the principal may
21 specify regarding the implementation of mental health care
22 decisions and related actions by the mental health care
23 agent.
24 (c) Written form.--A mental health power of attorney may be
25 in the following form or any other written form identifying the
26 principal, appointing a mental health care agent and declaring
27 that the principal authorizes the mental health care agent to
28 make mental health care decisions on behalf of the principal.
29 Mental Health Power of Attorney
30 I, , having the capacity to make mental
20030H2036B4779 - 27 -
1 health decisions, authorize my designated health care agent 2 to make certain decisions on my behalf regarding my mental 3 health care. If I have not expressed a choice in this 4 document, I authorize my agent to make the decision that my 5 agent determines is the decision I would make if I were 6 competent to do so. 7 I understand that mental health care includes any care, 8 treatment, service or procedure to maintain, diagnose, treat 9 or provide for mental health, including any medication 10 program and therapeutic treatment. Electroconvulsive therapy 11 may be administered only if I have specifically consented to 12 it in this document. I will be the subject of laboratory 13 trials or research only if specifically provided for in this 14 document. Mental health care does not include psychosurgery 15 or termination of parental rights. 16 I understand that my incapacity will be determined by 17 examination by a psychiatrist and one of the following: 18 another psychiatrist, psychologist, family physician, 19 attending physician or mental health treatment professional. 20 Whenever possible, one of the decision makers shall be one of 21 my treating professionals. 22 A. Designation of agent. I hereby designate and appoint the 23 following person as my agent to make mental health care 24 decisions for me as authorized in this document: 25 (Insert name of designated person) 26 Signed: 27 (My name, address, telephone number) 28 (Witnesses' signatures) 29 (Names, addresses, telephone numbers of witnesses) 30 Agent's acceptance: 20030H2036B4779 - 28 -
1 I hereby accept designation as mental health care agent for 2 (Insert name of declarant) 3 Agent's signature: 4 (Insert name, address, telephone number of designated person) 5 B. Designation of alternative agent. 6 In the event that my first agent is unavailable or unable to 7 serve as my mental health care agent, I hereby designate and 8 appoint the following individual as my alternative mental 9 health care agent to make mental health care decisions for me 10 as authorized in this document: 11 (Insert name of designated person) 12 Signed: 13 (Witnesses' signatures) 14 (Names, addresses, telephone numbers of witnesses) 15 Alternative agent's acceptance: 16 I hereby accept designation as alternative mental health care 17 agent for 18 (Insert name of declarant) 19 Alternative agent's signature: . 20 (Insert name, address, telephone number) 21 C. When this power of attorney becomes effective. 22 This power of attorney will become effective at the following 23 designated time: 24 ( ) When I am deemed incapable of making mental health care 25 decisions. 26 ( ) When the following condition is met: 27 (List condition) 28 D. Authority granted to my mental health care agent. 29 I hereby grant to my agent full power and authority to make 30 mental health care decisions for me consistent with the 20030H2036B4779 - 29 -
1 instructions and limitations set forth in this power of 2 attorney. If I have not expressed a choice in this power of 3 attorney, I authorize my agent to make the decision that my 4 agent determines is the decision I would make if I were 5 competent to do so. 6 1. Treatment preferences. 7 (a) 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 (b) Preferences regarding medications for psychiatric 19 treatment. 20 ( ) I consent to the medications that my agent agrees to 21 after consultation with my treating physician and any other 22 persons my agent considers appropriate. 23 ( ) I consent to the medications that my agent agrees to, 24 with the following exception or limitation: 25 (List exception or limitation) 26 This exception or limitation applies to generic, brand name 27 and trade name equivalents. 28 ( ) My agent is not authorized to consent to the use of any 29 medications. 30 (c) Preferences regarding electroconvulsive therapy 20030H2036B4779 - 30 -
1 (ECT). 2 ( ) My agent is authorized to consent to the administration 3 of electroconvulsive therapy. 4 ( ) My agent is not authorized to consent to the 5 administration of electroconvulsive therapy. 6 (d) Preferences for experimental studies or drug trials. 7 ( ) My agent is authorized to consent to my participation in 8 experimental studies if, after consultation with my treating 9 physician and any other individuals my agent deems 10 appropriate, my agent believes that the potential benefits to 11 me outweigh the possible risks to me. 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 drug trials if, after consultation with my treating physician 16 and any other individuals my agent deems appropriate, my 17 agent believes that the potential benefits to me outweigh the 18 possible risks to me. 19 ( ) My agent is not authorized to consent to my 20 participation in drug trials. 21 (e) Additional information and instructions. 22 Examples of other information that may be 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. 20030H2036B4779 - 31 -
1 Limitations on release or disclosure of mental 2 health records. 3 Other matters of importance. 4 E. Revocation. 5 This power of attorney may be revoked in whole or in part at 6 any time, either orally or in writing, as long as I have not 7 been found to be incapable of making mental health decisions. 8 My revocation will be effective upon communication to my 9 attending physician or other mental health care provider, 10 either by me or a witness to my revocation, of the intent to 11 revoke. If I choose to revoke a particular instruction 12 contained in this power of attorney in the manner specified, 13 I understand that the other instructions contained in this 14 power of attorney will remain effective until: 15 (1) I revoke this power of attorney in its entirety; 16 (2) I make a new mental health power of attorney; or 17 (3) two years after the date this document was executed. 18 F. Termination. 19 I understand that this power of attorney will automatically 20 terminate two years from the date of execution unless I am 21 deemed incapable of making mental health care decisions at 22 the time the power of attorney would expire. 23 G. Preference as to a court-appointed guardian. 24 I understand that I may nominate a guardian of my person for 25 consideration by the court if incapacity proceedings are 26 commenced pursuant to 20 Pa.C.S. § 5511. I understand that 27 the court will appoint a guardian in accordance with my most 28 recent nomination except for good cause or disqualification. 29 In the event a court decides to appoint a guardian, I desire 30 the following person to be appointed: 20030H2036B4779 - 32 -
1 (Insert name, address, telephone number of designated person) 2 ( ) The appointment of a guardian of my person will not give 3 the guardian the power to revoke, suspend or terminate this 4 power of attorney. 5 ( ) Upon appointment of a guardian, I authorize the guardian 6 to revoke, suspend or terminate this power of attorney. 7 I am making this power of attorney on the (insert day) of 8 (insert month), (insert year). 9 My signature 10 (My Name, address, telephone number) 11 Witnesses' signatures: 12 (Names, addresses, telephone numbers of witnesses) 13 If the principal making this power of attorney is unable to 14 sign it, another individual may sign on behalf of and at the 15 direction of the principal. 16 Signature of person signing on my behalf: 17 Signature 18 (Name, address telephone number) 19 § 5834. Operation. 20 (a) When operative.--A mental health power of attorney shall 21 become operative when: 22 (1) A copy is provided to the attending physician. 23 (2) The conditions stated in the power of attorney are 24 met. 25 (b) Invalidity of specific direction.--If a specific 26 direction in a mental health power of attorney is held to be 27 invalid, the invalidity does not negate other directions in the 28 mental health power of attorney that can be effected without the 29 invalid direction. 30 (c) Duration.--A mental health power of attorney shall be 20030H2036B4779 - 33 -
1 valid until revoked by the principal or until two years after 2 the date of execution. If a mental health power of attorney for 3 mental health treatment has been invoked and is in effect at the 4 specified date of expiration after its execution, the mental 5 health power of attorney shall remain effective until the 6 principal is no longer incapable. 7 (d) Court approval unnecessary.--A mental health care 8 decision made by a mental health care agent for a principal 9 shall be effective without court approval. 10 § 5835. Appointment of mental health care agents. 11 (a) Successor mental health care agents.--A principal may 12 appoint one or more successor agents who shall serve in the 13 order named in the mental health power of attorney unless the 14 principal expressly directs to the contrary. 15 (b) Who may not be appointed mental health care agent.-- 16 Unless related to the principal by blood, marriage or adoption, 17 a principal may not appoint any of the following to be the 18 mental health care agent: 19 (1) The principal's attending physician or other mental 20 health care provider, or an employee of the attending 21 physician or other mental health care provider. 22 (2) An owner, operator or employee of a residential 23 facility in which the principal receives care. 24 § 5836. Authority of mental health care agent. 25 (a) Extent of authority.--Except as expressly provided 26 otherwise in a mental health power of attorney and subject to 27 subsections (b) and (c), a mental health care agent may make any 28 mental health care decision and exercise any right and power 29 regarding the principal's care, custody and mental health care 30 treatment that the principal could have made and exercised. 20030H2036B4779 - 34 -
1 (b) Powers not granted.--A mental health power of attorney 2 may not convey the power to relinquish parental rights or 3 consent to psychosurgery. 4 (c) Powers and duties only specifically granted.--Unless 5 specifically included in a mental health power of attorney, the 6 agent shall not have the power to consent to electroconvulsive 7 therapy or to experimental procedures or research. 8 (d) Mental health care decisions.--After consultation with 9 mental health care providers and after consideration of the 10 prognosis and acceptable alternatives regarding diagnosis, 11 treatments and side effects, a mental health care agent shall 12 make mental health care decisions in accordance with the mental 13 health care agent's understanding and interpretation of the 14 instructions given by the principal at a time when the principal 15 had the capacity to make and communicate mental health care 16 decisions. Instructions include a declaration made by the 17 principal and any clear written or verbal directions that cover 18 the situation presented. In the absence of instructions, the 19 mental health care agent shall make mental health care decisions 20 conforming with the mental health care agent's assessment of the 21 principal's preferences. 22 (e) Mental health care information.-- 23 (1) Unless specifically provided otherwise in a mental 24 health power of attorney, a mental health care agent shall 25 have the same rights and limitations as the principal to 26 request, examine, copy and consent or refuse to consent to 27 the disclosure of mental health care information. 28 (2) Disclosure of mental health care information to a 29 mental health care agent shall not be construed to constitute 30 a waiver of any evidentiary privilege or right to assert 20030H2036B4779 - 35 -
1 confidentiality. 2 (3) A mental health care provider that discloses mental 3 health care information to a mental health care agent in good 4 faith shall not be liable for the disclosure. 5 (4) A mental health care agent may not disclose mental 6 health care information regarding the principal except as is 7 reasonably necessary to perform the agent's obligations to 8 the principal or as otherwise required by law. 9 (f) Liability of agent.--A mental health care agent shall 10 not be personally liable for the costs of care and treatment of 11 the principal. 12 § 5837. Removal of agent. 13 (a) Grounds for removal.--A mental health care agent may be 14 removed BY THE COURT for any of the following reasons: <-- 15 (1) Death or incapacity. 16 (2) Noncompliance with a mental health power of 17 attorney. 18 (3) Physical assault or threats of harm. 19 (4) Coercion. 20 (5) Voluntary withdrawal by the agent. 21 (6) Divorce. 22 (b) Notice of voluntary withdrawal.-- 23 (1) A mental health care agent who voluntarily withdraws 24 shall inform the principal. 25 (2) If the mental health power of attorney is in effect, 26 the agent shall notify providers of mental health treatment. 27 (c) Challenges.--Third parties may challenge the authority 28 of a mental health agent in the orphan's court division of the 29 court of common pleas. 30 (d) Effect of removal.--If a mental health power of attorney 20030H2036B4779 - 36 -
1 provides for a substitute agent, then the substitute agent shall 2 assume responsibility when the agent is removed. If the power of 3 attorney does not provide for a substitute, then a mental health 4 care provider shall follow any instructions in the power of 5 attorney. 6 § 5838. Effect of divorce. 7 If the spouse of a principal is designated as the principal's 8 mental health care agent and thereafter either spouse files an 9 action in divorce, the designation of the spouse as mental 10 health care agent shall be revoked as of the time the action is 11 filed unless it clearly appears from the mental health power of 12 attorney that the designation was intended to continue to be 13 effective notwithstanding the filing of an action in divorce by 14 either spouse. 15 § 5839. Revocation. 16 (a) When a mental health power of attorney may be revoked.-- 17 A mental health power of attorney may be revoked by the 18 principal at any time, either orally or in writing in whole or 19 in part, unless the principal has been found to be incapable of 20 making mental health treatment decisions or the principal has 21 been involuntarily committed. 22 (b) Capacity to revoke.--Notwithstanding subsection (a), 23 during a period of involuntary commitment pursuant to Article 24 III of the act of July 9, 1976 (P.L.817, No.143), known as the 25 Mental Health Procedures Act, a principal may revoke the mental 26 health power of attorney only if found to be capable of making 27 mental health decisions after examination by a psychiatrist and 28 one of the following: another psychiatrist, a psychologist, a 29 family physician, an attending physician or a mental health 30 treatment professional. Whenever possible, at least one of the 20030H2036B4779 - 37 -
1 decision makers shall be a treating professional of the 2 declarant or principal. 3 (c) Effect of revocation.--A revocation shall be effective 4 upon communication to the attending physician or other mental 5 health care provider by the principal or a witness to the 6 revocation of the intent to revoke. 7 (d) Mental health record.--The attending physician or other 8 mental health care provider shall make the revocation or a 9 finding of capacity part of the mental health record of the 10 declarant. 11 (e) Reliance on mental health power of attorney.--A 12 physician or other mental health care provider may rely on the 13 effectiveness of a mental health power of attorney unless 14 notified of its revocation. 15 (f) Subsequent action by agent.--A mental health care agent 16 who has notice of the revocation of a mental health power of 17 attorney may not make or attempt to make mental health care 18 decisions for the principal. 19 § 5840. Amendment. 20 While having the capacity to make mental health decisions, a 21 principal may amend a mental health power of attorney by a 22 writing executed in accordance with the provisions of section 23 5832 (relating to execution). 24 § 5841. Relation of mental health care agent to court-appointed 25 guardian and other agents. 26 (a) Procedure.-- 27 (1) Upon receipt of notice of a guardianship 28 proceeding, a provider shall notify the court, and the agent 29 at the guardianship proceeding, of the existence of a mental 30 health advance directive. 20030H2036B4779 - 38 -
1 (2) Upon receipt of a notice of guardianship proceeding, 2 the agent shall inform the court of the contents of the 3 mental health advance directive. 4 (b) Accountability of mental health care agent.-- 5 (1) If a principal who has executed a mental health 6 power of attorney is later adjudicated an incapacitated 7 person, the mental health power of attorney shall remain in 8 effect. 9 (2) The court shall give preference to allowing the 10 agent to continue making mental health care decisions as 11 provided in the mental health advance directive unless the 12 principal specified that the guardian has the power to 13 terminate, revoke, or suspend the mental health power of 14 attorney in the advance directive. 15 (3) If, after thorough examination, the court grants the 16 powers contained in the mental health advance directive to 17 the guardian, the guardian shall be bound by the same 18 obligations as the agent would have been. 19 (c) Nomination of guardian of person.--In a mental health 20 power of attorney, a principal may nominate the guardian of the 21 person for the principal for consideration by the court if 22 incapacity proceedings for the principal's person are thereafter 23 commenced. If the court determines that the appointment of a 24 guardian is necessary, the court shall appoint in accordance 25 with the principal's most recent nomination except for good 26 cause or disqualification. 27 § 5842. Duties of attending physician and mental health care 28 provider. 29 (a) Compliance with decisions of mental health care agent.-- 30 Subject to any limitation specified in a mental health power of 20030H2036B4779 - 39 -
1 attorney, an attending physician or mental health care provider 2 shall comply with a mental health care decision made by a mental 3 health care agent to the same extent as if the decision had been 4 made by the principal. 5 (b) Mental health record.-- 6 (1) An attending physician or mental health care 7 provider who is given a mental health power of attorney shall 8 arrange for the mental health power of attorney or a copy to 9 be placed in the mental health record of the principal. 10 (2) An attending physician or mental health care 11 provider to whom an amendment or revocation of a mental 12 health power of attorney is communicated shall promptly enter 13 the information in the mental health record of the principal 14 and maintain a copy if one is furnished. 15 (c) Record of determination.--An attending physician who 16 determines that a principal is unable to make or has regained 17 the capacity to make mental health treatment decisions or makes 18 a determination that affects the authority of a mental health 19 care agent shall enter the determination in the mental health 20 record of the principal and, if possible, promptly inform the 21 principal and any mental health care agent of the determination. 22 § 5843. Construction. 23 (a) General rule.--Nothing in this subchapter shall be 24 construed to: 25 (1) Affect the requirements of other laws of this 26 Commonwealth regarding consent to observation, diagnosis, 27 treatment or hospitalization for a mental illness. 28 (2) Authorize a mental health care agent to consent to 29 any mental health care prohibited by the laws of this 30 Commonwealth. 20030H2036B4779 - 40 -
1 (3) Affect the laws of this Commonwealth regarding any 2 of the following: 3 (i) The standard of care of a mental health care 4 provider required in the administration of mental health 5 care or the clinical decision-making authority of the 6 mental health care provider. 7 (ii) When consent is required for mental health 8 care. 9 (iii) Informed consent for mental health care. 10 (4) Affect the ability to admit a person to a mental 11 health facility under the voluntary and involuntary 12 commitment provisions of the act of July 9, 1976 (P.L.817, 13 No.143), known as the Mental Health Procedures Act. 14 (b) Disclosure.-- 15 (1) The disclosure requirements of section 5836(e) 16 (relating to authority of mental health care agent) shall 17 supersede any provision in any other State statute or 18 regulation that requires a principal to consent to disclosure 19 or which otherwise conflicts with section 5836(e), including, 20 but not limited to, the following: 21 (i) The act of April 14, 1972 (P.L.221, No.63), 22 known as the Pennsylvania Drug and Alcohol Abuse Control 23 Act. 24 (ii) Section 111 of the act of July 9, 1976 25 (P.L.817, No.143), known as the Mental Health Procedures 26 Act. 27 (iii) The act of October 5, 1978 (P.L.1109, No.261), 28 known as the Osteopathic Medical Practice Act. 29 (iv) Section 41 of the act of December 20, 1985 30 (P.L.457, No.112), known as the Medical Practice Act of 20030H2036B4779 - 41 -
1 1985. 2 (v) The act of November 29, 1990 (P.L.585, No.148), 3 known as the Confidentiality of HIV-Related Information 4 Act. 5 (2) The disclosure requirements under section 5836(e) 6 shall not apply to the extent that the disclosure would be 7 prohibited by Federal law and implementing regulations. 8 (c) Notice and acknowledgment requirements.--The notice and 9 acknowledgment requirements of section 5601(c) and (d) (relating 10 to general provisions) shall not apply to a power of attorney 11 that provides exclusively for mental health care decision 12 making. 13 (d) Legal remedies.--Nothing in this act CHAPTER shall <-- 14 prohibit an interested party from using the same legal remedies 15 that are otherwise available to seek a determination from the 16 courts including invalidation of some or all of the declaration 17 or the mental health power of attorney, in cases of potential 18 irreparable harm or death. The courts shall have 72 hours from 19 the time of application for remedy in which to make this 20 determination. 21 (D) LEGAL REMEDIES.--AN INTERESTED PARTY MAY FILE A PETITION <-- 22 SEEKING A DETERMINATION THAT FOLLOWING THE DIRECTIONS IN THE 23 DECLARATION OR THE MENTAL HEALTH POWER OF ATTORNEY, MAY CAUSE 24 POTENTIAL IRREPARABLE HARM OR DEATH. IN THAT EVENT, THE COURT 25 MAY INVALIDATE SOME OR ALL OF THE PROVISIONS AND ISSUE ORDERS 26 APPROPRIATE TO THE CIRCUMSTANCES AUTHORIZING TREATMENT. THE 27 COURTS SHALL ISSUE AN ORDER WITHIN 72 HOURS FROM THE FILING OF 28 THE PETITION. 29 § 5844. Conflicting mental health powers of attorney <-- 30 PROVISIONS. <-- 20030H2036B4779 - 42 -
1 If a provision of a mental health power of attorney conflicts <-- 2 with another provision of a mental health power CONFLICTS WITH: <-- 3 (1) THE PROVISION OF ANOTHER MENTAL HEALTH POWER of 4 attorney or with a provision of a declaration, the provision 5 of the instrument latest in date of execution shall prevail 6 to the extent of the conflict. 7 (2) A POWER OF ATTORNEY, THE PROVISION IN THE MENTAL <-- 8 HEALTH POWER OF ATTORNEY SHALL PREVAIL TO THE EXTENT OF THE 9 CONFLICT, REGARDLESS OF THE DATE OF EXECUTION. 10 § 5845. Validity. 11 This subchapter shall not be construed to limit the validity 12 of a health care power of attorney executed prior to the 13 effective date of this subchapter. A mental health power of 14 attorney executed in another state or jurisdiction and in 15 conformity with the laws of that state or jurisdiction shall be 16 considered valid in this Commonwealth, except to the extent that 17 the mental health power of attorney executed in another state or 18 jurisdiction would allow a mental health care agent to make a 19 mental health care decision inconsistent with the laws of this 20 Commonwealth. 21 SECTION 2. SECTION 7203(D) OF TITLE 20 IS AMENDED TO READ: <-- 22 § 7203. PRUDENT INVESTOR RULE. 23 * * * 24 (D) REQUIREMENTS FOR CHARITABLE TRUSTS [HOLDING A 25 CONTROLLING INTEREST IN] HAVING VOTING CONTROL OF CERTAIN 26 PUBLICLY TRADED BUSINESS CORPORATIONS.-- 27 (1) NOTWITHSTANDING ANY OTHER LEGAL REQUIREMENT OR 28 PROCESS WHICH MAY INCLUDE COURT REVIEW OF THE ACTIVITIES OF A 29 CHARITABLE TRUST, A FIDUCIARY FOR A CHARITABLE TRUST WITH A 30 MAJORITY OF ITS BENEFICIARIES AT A PRINCIPAL LOCATION WITHIN 20030H2036B4779 - 43 -
1 THIS COMMONWEALTH [HOLDING A CONTROLLING INTEREST IN] HAVING 2 VOTING CONTROL OF A PUBLICLY TRADED BUSINESS CORPORATION 3 RECEIVED AS AN ASSET FROM THE SETTLOR SHALL NOT CONSUMMATE 4 ANY [INVESTMENT OR MANAGEMENT DECISION EXECUTING A CHANGE IN 5 THE TRUST'S] TRANSACTION, OR VOTE TO PERMIT CONSUMMATION OF 6 OR OTHERWISE ACT TO CONSUMMATE ANY TRANSACTION, WHICH WOULD 7 RESULT IN THE TRUST NO LONGER HAVING VOTING CONTROL OF THAT 8 CORPORATION, BY SALE, MERGER, CONSOLIDATION OR OTHERWISE, 9 WITHOUT: 10 (I) SERVING NOTICE UPON THE ATTORNEY GENERAL AT 11 LEAST 60 DAYS PRIOR TO [EXECUTING] THE [CHANGE IN 12 CONTROL] CONSUMMATION OF THE TRANSACTION; AND 13 (II) DIRECTING THAT AT LEAST 30 DAYS' PRIOR NOTICE 14 OF THE [EXECUTION OF THE CHANGE IN CONTROL] CONSUMMATION 15 OF THE TRANSACTION BE PROVIDED BY THE PUBLICLY TRADED 16 BUSINESS CORPORATION CONTROLLED BY THE TRUST TO EMPLOYEES 17 OF [THE PUBLICLY TRADED BUSINESS] THAT CORPORATION [HELD 18 BY THE TRUST] WHO ARE LOCATED IN THIS COMMONWEALTH. 19 (2) IN ADDITION TO ANY OTHER POWER OR DUTY PROVIDED BY 20 LAW, THE ATTORNEY GENERAL ALSO HAS THE POWER TO [OBTAIN] SEEK 21 JUDICIAL REVIEW PURSUANT TO THIS SUBSECTION FROM THE COURT 22 HAVING JURISDICTION OVER THE TRUST IF THE ATTORNEY GENERAL 23 CONCLUDES THAT THE [FIDUCIARY SHOULD BE PREVENTED FROM 24 EXECUTING SUCH A CHANGE IN CONTROL.] CONSUMMATION OF A 25 TRANSACTION DESCRIBED IN PARAGRAPH (1) IS UNNECESSARY FOR THE 26 FUTURE ECONOMIC VIABILITY OF THE CORPORATION AND WOULD 27 CONSTITUTE A FAILURE TO COMPLY WITH THE PROVISIONS OF 28 SUBSECTION (C) OR AN IMPAIRMENT OF THE CHARITABLE PURPOSE OF 29 THE TRUST. 30 (3) IN [OBTAINING JUDICIAL APPROVAL] A JUDICIAL 20030H2036B4779 - 44 -
1 PROCEEDING COMMENCED BY THE ATTORNEY GENERAL UNDER THIS 2 SUBSECTION, THE [FIDUCIARY] ATTORNEY GENERAL MUST PROVE BY 3 [CLEAR AND CONVINCING] A PREPONDERANCE OF THE EVIDENCE THAT 4 [EXECUTING THE CHANGE IN THE TRUST'S] CONSUMMATION OF A 5 TRANSACTION WHICH WOULD RESULT IN THE CHARITABLE TRUST NO 6 LONGER HAVING VOTING CONTROL OF THE CORPORATION [IS NECESSARY 7 TO MAINTAIN THE ECONOMIC VIABILITY OF THE CORPORATION AND 8 PREVENT A SIGNIFICANT DIMINUTION OF TRUST ASSETS OR TO AVOID] 9 IS UNNECESSARY FOR THE FUTURE ECONOMIC VIABILITY OF THE 10 CORPORATION AND MUST BE PREVENTED IN ORDER TO AVOID 11 NONCOMPLIANCE WITH THE PROVISIONS OF SUBSECTION (C) OR AN 12 IMPAIRMENT OF THE CHARITABLE PURPOSE OF THE TRUST. 13 (3.1) IF A FIDUCIARY PROVIDES THE NOTICE UNDER PARAGRAPH 14 (1)(I), THE FOLLOWING APPLY: 15 (I) EXCEPT AS SET FORTH IN SUBPARAGRAPH (II), UPON 16 EXPIRATION OF THE NOTICE PERIOD UNDER PARAGRAPH (1)(I), 17 THE FIDUCIARY MAY: 18 (A) VOTE TO PERMIT CONSUMMATION OF A TRANSACTION 19 DESCRIBED IN PARAGRAPH (1); OR 20 (B) OTHERWISE ACT TO CONSUMMATE THE TRANSACTION 21 DESCRIBED IN PARAGRAPH (1). 22 (II) THE FIDUCIARY HAS NO AUTHORITY UNDER 23 SUBPARAGRAPH (I) IF THE ATTORNEY GENERAL HAS, WITHIN 30 24 DAYS OF RECEIVING THE NOTICE UNDER PARAGRAPH (1)(I), 25 COMMENCED A JUDICIAL PROCEEDING UNDER PARAGRAPH (2). 26 (III) IF THE FIDUCIARY IS ENJOINED IN A JUDICIAL 27 PROCEEDING UNDER SUBPARAGRAPH (II), THE FIDUCIARY SHALL 28 NOT HAVE AUTHORITY UNDER SUBPARAGRAPH (I)(A) OR (B) 29 UNLESS THE INJUNCTION IS DISSOLVED BY: 30 (A) STIPULATION OF THE FIDUCIARY AND THE 20030H2036B4779 - 45 -
1 ATTORNEY GENERAL; OR 2 (B) AN ORDER OF A COURT OF COMPETENT 3 JURISDICTION WHICH IS NOT SUBJECT TO FURTHER JUDICIAL 4 REVIEW AS OF RIGHT. 5 (4) IN THE EVENT COURT APPROVAL TO CONSUMMATE A 6 TRANSACTION DESCRIBED IN PARAGRAPH (1) IS OBTAINED PURSUANT 7 TO THIS SUBSECTION, THE COURT SHALL ENSURE THAT THE 8 PROVISIONS OF 15 PA.C.S. CH. 25 SUBCHS. I (RELATING TO 9 SEVERANCE COMPENSATION FOR EMPLOYEES TERMINATED FOLLOWING 10 CERTAIN CONTROL-SHARE ACQUISITIONS) AND J (RELATING TO 11 BUSINESS COMBINATION TRANSACTIONS - LABOR CONTRACTS) APPLY TO 12 THE [EXECUTION OF A CHANGE IN THE TRUST'S CONTROL EFFECTUATED 13 BY THE FIDUCIARY OF A CHARITABLE TRUST WITH BENEFICIARIES AT 14 A PRINCIPAL LOCATION WITHIN THIS COMMONWEALTH HOLDING A 15 CONTROLLING INTEREST IN A PUBLICLY TRADED] BUSINESS 16 CORPORATION [RECEIVED AS AN ASSET FROM THE SETTLOR.] 17 DESCRIBED IN PARAGRAPH (1) UPON THE CONSUMMATION OF THE 18 TRANSACTION. 19 (5) A FIDUCIARY OF A CHARITABLE TRUST WITH A MAJORITY OF 20 ITS BENEFICIARIES AT A PRINCIPAL LOCATION WITHIN THIS 21 COMMONWEALTH [HOLDING A CONTROLLING INTEREST IN] HAVING 22 VOTING CONTROL OF A PUBLICLY TRADED BUSINESS CORPORATION 23 RECEIVED AS AN ASSET FROM THE SETTLOR SHALL NOT BE SUBJECT TO 24 LIABILITY FOR THE COMMERCIALLY REASONABLE SALE OF CERTAIN 25 SHARES OF THE CORPORATION NOT NECESSARY TO MAINTAIN VOTING 26 CONTROL AND FOR WHICH NO CONTROL PREMIUM IS REALIZED IF THE 27 FIDUCIARY REASONABLY DETERMINED THAT SUCH SALE WAS AUTHORIZED 28 IN A MANNER CONSISTENT WITH THE REQUIREMENTS OF THIS SECTION 29 AND OTHER APPLICABLE PROVISIONS OF THIS TITLE. 30 (6) THE REQUIREMENTS OF THIS SUBSECTION SHALL NOT APPLY 20030H2036B4779 - 46 -
1 TO A NONCHARITABLE TRUST, INCLUDING A NONCHARITABLE TRUST 2 WITH A CHARITABLE REMAINDER AND A CHARITABLE TRUST WHICH 3 REVERTS TO NONCHARITABLE PURPOSES. 4 (7) AS USED IN THIS SUBSECTION, THE TERM "VOTING 5 CONTROL" MEANS A MAJORITY OF THE VOTING POWER OF THE 6 OUTSTANDING SHARES OF STOCK ENTITLED TO VOTE ON THE ELECTION 7 OF DIRECTORS. 8 SECTION 3. SECTION 4 OF THE ACT OF NOVEMBER 6, 2002 9 (P.L.1101, NO.133), ENTITLED "AN ACT AMENDING TITLE 20 10 (DECEDENTS, ESTATES AND FIDUCIARIES) OF THE PENNSYLVANIA 11 CONSOLIDATED STATUTES, FURTHER PROVIDING FOR THE PRUDENT 12 INVESTOR RULE; CODIFYING EXISTING LAW SETTING FORTH THE 13 APPLICABILITY OF PROVISIONS RELATING TO DIVERSIFICATION; AND 14 MAKING A REPEAL," IS REPEALED. 15 Section 2 4. The provisions of this act are severable. If <-- 16 any provision of this act or its application to any person or 17 circumstance is held invalid, the invalidity shall not affect 18 other provisions or applications of this act which can be given 19 effect without the invalid provision or application. 20 Section 3. This act shall take effect in 60 days. <-- 21 SECTION 5. THIS ACT SHALL TAKE EFFECT AS FOLLOWS: <-- 22 (1) THE FOLLOWING PROVISIONS SHALL TAKE EFFECT 23 IMMEDIATELY: 24 (I) THE AMENDMENT OF 20 PA.C.S. § 7203(D). 25 (II) SECTION 3 OF THIS ACT. 26 (III) THIS SECTION. 27 (2) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT IN 60 28 DAYS. H22L20DMS/20030H2036B4779 - 47 -