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History and Explanation of Pennsylvania Law

In 1992, Pennsylvania became one of the last states to enact a statute (law) making Living Wills valid here. In the statute, the type of document commonly referred to as a "Living Will" is called a "Declaration." The portions of Pennsylvania law dealing with these documents can be found in Chapter 54 of the Probate, Estates and Fiduciaries Code (sometimes called the "PEF Code").

The PEF Code states, "An individual of sound mind who is 18 years of age or older or who has graduated from high school or has married may execute at any time a declaration governing the initiation, continuation, withholding or withdrawal of life-sustaining treatment. The declaration must be signed by the declarant, or by another on behalf of and at the direction of the declarant, and must be witnessed by two individuals each of whom is 18 years of age or older." 20 Pa. C. S. Section 5404(a).

The PEF Code sets forth a proposed form of declaration and states that the declaration "may but need not be in the" form contained in the PEF Code (which is set forth below - Form). 20 P. C. S. Section 5404(b). Items that might be considered for inclusion in the document but which are not contained in the statutory form include how multiple surrogates are to act - separately or jointly; whether a surrogate can override instructions in the document under any circumstances; and privacy concerns under HIPPA. We suggest that you consult with an attorney about the provisions that are appropriate for your own situation.

In order to fully understand the law and the proposed form, it is important to be aware of four terms that are defined in the PEF Code: (1) Incompetent, (2) Life-sustaining Treatment, (3) Permanently Unconscious and (4) Terminal Condition. These definitions can be found in the PEF Code at 20 Pa. C. S. Section 5403 and are set forth below.

Incompetent. The lack of sufficient capacity for a person to make or communicate decisions concerning himself.

Life-sustaining Treatment. Any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. Life-sustaining treatment shall include nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means if the declaration of the qualified patient so specifically provides.

Permanently Unconscious. A medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma.

Terminal Condition. An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of the continued application of life- sustaining treatment.

Warning: This document is for informational purposes only - it is not legal advice. You should consult with an attorney in the state where you reside to determine whether you should sign a Living Will, what it should contain and its effects on your particular situation, before acting on the information contained here.