Healthcare Directives & Living Wills

Pennsylvania's Advance Directive for Health Care (20 Pa.C.S. Chapter 54) combines your living will and healthcare power of attorney into one document. But most people sign one without understanding what it does, or more importantly, what happens if they do not have one.

What a Healthcare Directive Actually Does

A properly drafted advance directive has two components, and they serve different functions:

• Living Will: A written statement of your wishes regarding end-of-life treatment: life-sustaining treatment, artificial nutrition and hydration, mechanical ventilation, resuscitation. This speaks for you when you cannot speak for yourself. It does not appoint anyone to make decisions.
• Healthcare Power of Attorney (Healthcare Agent): Names a specific person to make all medical decisions when you are unable to do so, not just end-of-life decisions. This includes decisions about surgery, medication, rehabilitation, discharge, and facility placement. The agent has authority the living will does not cover.

You need both components. A living will without an agent leaves the choice of decision maker to the statute's default list of health care representatives. An agent without a living will has authority but no guidance about your wishes.

If You Do Not Have a Healthcare Agent: The Default Hierarchy

When a patient cannot make medical decisions and has not named a health care agent, Pennsylvania law (20 Pa.C.S. § 5461) establishes a default hierarchy of surrogates (called health care representatives) who may consent to treatment on the patient's behalf. The same hierarchy applies if the named agent, and any alternate agent, is not reasonably available or is unwilling to act. It does not apply if a guardian has already been appointed to make the patient's health care decisions. The classes, in descending order of priority, are:

1. The spouse, unless an action for divorce is pending, together with the patient's adult children who are not the children of that spouse
2. An adult child
3. A parent
4. An adult sibling
5. An adult grandchild
6. An adult who has knowledge of the patient's preferences and values

This sounds orderly on paper. In practice, it creates three problems:

• Disagreement: Two adult children disagree about Mom's care. The statute says "majority", but when there are only two children, there is no majority. The hospital's ethics committee gets involved. Days pass. Decisions do not get made.
• The wrong person: The default hierarchy may not reflect your actual preference. Maybe your estranged spouse is technically still married to you. Maybe your adult child has different values than you. The statute does not care about your preferences. It follows the list.
• Unmarried partners: Your long-term partner has no statutory authority under the default hierarchy unless they qualify as "an adult who has knowledge of the patient's preferences and values", the lowest priority category. A parent or sibling you have not spoken to in years outranks your partner of 20 years.

POLST: Pennsylvania Orders for Life-Sustaining Treatment

A POLST form is not the same thing as an advance directive. A POLST is a medical order, a bright pink form signed by a physician (or CRNP/PA) that translates a patient's treatment preferences into specific orders that first responders and hospital staff follow immediately. An advance directive requires interpretation; a POLST is an order.

Key differences:

• An advance directive applies when you cannot make decisions. A POLST applies immediately.
• An advance directive is signed by the patient. A POLST is signed by the physician based on a conversation with the patient (or the patient's surrogate).
• EMS responders are trained to look for the pink POLST form. They may not review or follow a multi-page advance directive during an emergency.

POLST forms are typically appropriate for patients with serious illness who have made clear treatment decisions. They are not a substitute for an advance directive. They work alongside one.

Mental Health Advance Directives

Pennsylvania authorizes a separate mental health declaration and mental health power of attorney under a different chapter of Title 20 (20 Pa.C.S. Chapter 58), distinct from the general advance health care directive in Chapter 54. In that mental health document you can specify preferences for psychiatric hospitalization, medication, electroconvulsive therapy, and other treatments in the event of a mental health crisis that renders you unable to make decisions. This is particularly important for individuals with conditions like bipolar disorder, schizophrenia, or severe depression where past episodes inform what treatments are acceptable. Note that a Chapter 58 mental health declaration and power of attorney automatically terminates two years after execution unless you are incapable of making mental health decisions at that time.

HIPAA Authorization

Your healthcare directive should be accompanied by a HIPAA authorization allowing your agent to access your medical records. Without this, healthcare providers may refuse to share information with your agent, even though the agent has authority to make decisions. This is not theoretical; it happens regularly. The HIPAA authorization should be a separate document (not buried inside the directive) so it can be presented independently to records departments, insurance companies, and pharmacies.

Legal and factual content on this page was last verified: Aug. 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.