Living Wills Are Alive and Well in Pennsylvania
By: Amos Goodall
With the Schiavo case, many people worry that their living wills may be invalid in Pennsylvania.
This is not true. Properly prepared and signed living wills are valid statements of a person’s intent.
Unfortunately in the Schiavo case, Ms. Schiavo had not explicitly and unambiguously set forth her wishes before her crisis. This caused several tragedies. A preventable one was the controversy between the two sides of her family, both sides believing they were acting in good faith and neither side willing to believe that the other side was. At a time when the whole family should have been drawing together to support each other in carrying out her wishes, they were bitterly disputing what her wishes were.
In American, a person has always had power to refuse medical treatment, arising from the common law right of self determination. While there are some exceptions in Pennsylvania, the general rule is that a competent person may always say what cannot be done. The issues arise when someone cannot express an intention. The three publicized cases, Terry Schiavo, Nancy Cruzan and Karen Ann Quinlan, involved young women unexpectedly struck down in their primes. Each women spent years in a persistent vegetative state while their families and the courts struggled with appropriate relief.
While opinions may differ as to what people should decide, living wills allow a person to make the decision for himself or herself when he or she is comfortable, can consult with a physician and family and have any and all questions answered, and can describe exactly how things handled. A detailed workbook, modified from an American Bar Association publication to reflect Pennsylvania law is available on the author’s website, www.centrelaw.com, as an exercise to express a person’s intent.
A living will, called by statute an "Advance Directive for Health Care", is a formal written summary of that decision.
According to the statute, a living will must be signed by the person who is making it, if capable of doing so, and witnessed by two other persons. The signer must be "of sound mind" and either at least eighteen years old, a high school graduate, or married. If a person cannot physically sign, there is a procedure available. Living wills allow a person to declare that beginning, continuing or ending life sustaining treatment must cease under certain circumstances. Most often, a living will takes effect when the signer is in a state of permanent unconsciousness or a terminal condition. Permanent unconsciousness is a medical condition involving total and irreversible loss of consciousness and capacity for interaction with the environment, for example, a persistent vegetative state or an irreversible coma. A terminal condition is an incurable and irreversible medical condition in an advanced state, caused by injury, disease or physical illness, which will result in death regardless of what is done.
In each case, an attending physician who believes that a patient is in one of these states must obtain a second physician’s opinion before carrying out the living will instructions, and the statute allows a person to name a surrogate.
In Pennsylvania, it is not necessary that a person execute a living will in order to give effect to end of life discussions. In a 1996 Pennsylvania Supreme Court decision, the mother of a patient in a persistent vegetative state sought to terminate life support treatment. The patient, a young man who suffered successive head injuries had never spoken to his family about his wishes at a time when he was healthy. However, his mother testified she believed he would have wished to have a feeding tube removed. This combined with medical evidence that his condition was permanent to lead the court to conclude that the mother’s wishes as a substitute decision maker should be given effect. The court noted that there were a number of state interests to be considered in making this decision, including the protection of third parties, prevention of suicide, protection of the ethical integrity of the medical community and the preservation of life. However, in the decision, the court noted that an individual’s common law right to self determination would prevail over these other considerations under the exact facts of the case, noting that every case was different.
The legislature has created a form of Living Will. This is available from many sources. There are many other forms, including those recommended by a number of major religious organizations. A living will in the statutory form is not needed to exercise the common law right, but is will go a long way to preventing controversies such as the Schiavo case. http://www.centrelaw.com.