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HomeMy WebLinkAbout21-2002-293 Orphans' IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY : ORPHANS' COURT DIVISION AN INCAPACITATED PERSON : 21-02-293 ORPHANS’ COURT IN RE: PETITION FOR APPOINTMENT AS HEALTH CARE AGENT OPINION AND ORDER OF COURT Bayley, J., January 24, 2008:-- Myrl I. Hockenberry and Vada B. Hockenberry are the parents of David L. Hockenberry, age 50, born May 3, 1957. On July 3, 2002, this court, based on a finding that David suffered “from profound mental retardation and as a result is so severely mentally impaired that he is unable to make, communicate or even participate in any decision relating to his estate or person, appointed Myrl Hockenberry and Vada Hockenberry as the plenary guardians of the person of David Hockenberry and plenary 1 guardians of his estate. On January 4, 2008, the Hockenberrys filed this petition to be appointed and authorized to exercise the powers of Health Care Agents for David. On December 21, 2007, David became ill with aspiration pneumonia after apparently swallowing a hairpin. He was transferred from the Ebensburg Center, where he has been a resident for forty-five years, to Memorial Hospital in Johnstown, where he was placed on a mechanical ventilator. Although averring that David is neither permanently unconscious nor terminally ill, the Hockenberrys aver, that in conjunction with David’s physician at Memorial Hospital, they believe that it is in David’s best interest to 21-02-293 ORPHANS’ COURT 2 discontinue the use of mechanical ventilation. “Because of David’s suffering, and [their] anguish,” they seek appointment as Health Care Agents for David. Counsel was appointed for David and a hearing was conducted on January 11, 2008. Since the petition was filed, the mechanical ventilation of David has been removed as part of his continuing medical care. The Hockenberrys still seek appointment as David’s Heath Care Agents. Although the circumstances that led to the filing of the petition appear to have passed, the petition of the Hockenberrys to be appointed as Health Care Agents for David is still before us. The Ebensburg Center maintains that the Hockenberrys cannot be legally appointed by this court as Health 3 Care Agents for their son. This is an issue of law. Initially, the Hockenberrys challenge the standing of the Ebensburg Center. We are satisfied that there is standing. Under the Mental Health and Mental Retardation Act of 1966, an Ebensburg Center physician is in charge of all of David Hockenberry’s medical diagnosis, care and treatment. 50 P.S. § 4417(a). Where an agency has been statutorily invested with certain functions, such an agency has implicit power to be a 1 David has suffered from mental retardation since birth. 2 The Ebensburg Center filed an answer to the petition and denies that the physician’s “view is independent of the guardian’s view, but rather represents simply a legal or policy judgment that the guardian’s view is controlling.” 3 While the Ebensburg Center acknowledges that the Hockenberrys are loving and caring parents, it maintains that because they cannot be David’s Health Care Agents, and David is neither permanently unconscious nor in an end-stage medical condition, they cannot make a decision to remove life support for him based on their being his parents and the plenary guardians of his person. -2- 21-02-293 ORPHANS’ COURT In re T.J., litigant in matters touching upon its concern. 739 A.2d 478 (Pa. 1999). The Health Care Agents and Representatives Act, 20 Pa.C.S. Section 5451 – 5471, provides in Section 5462(c)(1): Healthcare necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently except if the individual is competent and objects to unconscious, such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will . . . . (Emphasis added.) The Ebensburg Center maintains that because David Hockenberry is not competent to make medical decisions for himself, nor is he competent to execute a power of attorney or living will, a Health Care Agent cannot be designated or appointed by this court. The Center argues in its brief: For the medical circumstances present here, the General Assembly adopted, in Act 169, a per se rule, 20 Pa. C.S. §5462(c)(1), that simply removes the life or death decision from guardians, relatives, or health care representatives (who are not – unlike health care agents – chosen by the principal). According to the General Assembly, in these particular medical circumstances, life is to be chosen over death. In their petition, the Hockenberrys maintain that they “seek authority to act as a health care ‘Agent’ as that term is used in Act 169, in order that they may exercise, as In re Fiori David’s surrogate, the prerogatives outlined in [673 A.2d 905 (Pa. 1996)], and in Act 169.”They note that in Act 169 it expressly states that it does not “affect or In re FioriFiori supersede the holding of .” The facts in were that in 1972, Daniel Joseph Fiori, who was approximately twenty years old, suffered severe head injuries which severely limited his cognitive abilities. In 1976, while being treated at a Veterans -3- 21-02-293 ORPHANS’ COURT Administration hospital, Fiori suffered a second head injury. Following this second injury, he was diagnosed as being in a persistent vegetative state (PVS) and never regained consciousness; there was no hope of his ever recovering. Because Fiori had no ability to voluntarily contract his muscles, “his life functions were maintained by the provision of medications, fluids, and nutrition through a gastrostomy tube, a tube which is surgically inserted in the stomach.” In 1980, Rose-marie Sherman, Fiori’s mother, was appointed guardian of his person. In 1992, she requested that the Mayo Nursing Center remove his gastrostomy tube. In the absence of a court order, they refused. Sherman subsequently filed a petition in the Court of Common of Pleas of Bucks County. The trial court, after hearing testimony from two neurologists who agreed that Fiori’s condition would not improve, granted Sherman’s motion and issued an order directing the nursing home to terminate treatment. The Attorney General appealed. After the Superior Court affirmed, the Attorney General appealed to the Supreme Court. Fiori died of pneumonia prior to the granting of allowance of appeal. Notwithstanding, the Supreme Court held that: [w]e believe that where a PVS patient has not left instruction as to the maintenance of life sustaining treatment, the only practical way to prevent the destruction of the PVS patient’s right to refuse medical treatment is to allow a substitute decision maker to determine what measures the PVS patient would have desired in light of the patient’s prognosis. The Court stated that “a close family member is well-suited to the role of substitute -4- 21-02-293 ORPHANS’ COURT decision maker.” Once a substitute decision maker has been named, they must, in order to have treatment terminated, provide statements from two qualified doctors certifying that the patient is in a permanent vegetative state and a statement from the attending physician, if there is one. Fiori The authority provided a close family member in is limited to a situation in which the relative is permanently unconscious. For an incapacitated person who “has neither an end-stage medical condition nor is permanently unconscious,” Section 5462(c)(1) in Act 169 allows for the cessation of healthcare necessary to preserve life only if “the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will.” The Health Care Agents and Representatives Act sets forth in Section 5452(a): Who may make.—An individual of sound mindmay make a health care power of attorney if the individual: (1) is 18 years of age or older; (2) has graduated from high school; (3) has married; or (4) is an emancipated minor. (Emphasis added.) Subsection (b)(1) provides that a health care power of attorney must be dated and signed by the principal. Section 5455(a) provides that the principal may appoint a health care agent who, among others, is related to the principal by blood. Section 5456(a) provides: Extent of authority.— Except as expressly provided otherwise in a health care power of attorney and subject to subsection (b) and section -5- 21-02-293 ORPHANS’ COURT 5460 (relating to relation of health care agent to court-appointed guardian and other agents), a health care agent shall have the authority to make any health care decision and to exercise any right and power regarding the principal’s care, custody and health care treatment that the principal could have made and exercised. . . . Subsection (b) provides: Life-sustaining treatment decisions.— A life-sustaining treatment decision made by a health care agent is subject to this section and sections 5429 (relating to pregnancy), 5454 (relating to when health care power of attorney operative) and 5462(a) (relating to duties of attending physician and health care provider). Subsection (c) set forth a health care agent’s authority regarding life-sustaining treatment decisions and health care decisions regarding end of life of a patient with an end-stage medical condition. The Ebensburg Center argues in its brief: The relief the guardians specifically seek – to transform guardianship into health care agent – imputes to this Court a power the legislature has withheld from it, i.e., the power to create health care agency (see “health care agent,” 20 Pa.C.S. §5422) when none has previously existed. Under Act 169, guardians can “revoke or amend” an existing health care agency if the principal becomes incompetent, 20 Pa. C.S. §5460(a), but they cannot create one where none ever existed, 4 which is the case here. 4 Section 5460(a), provides: (a) Accountability of health care agent.— If a principal who has executed a health care power of attorney is later adjudicated an incapacitated person and a guardian of the person to make health care decisions is appointed by a court, the health care agent is accountable to the guardian as well as to the principal. The guardian shall have the same power to revoke or amend the appointment of a health care agent that the principal would have if the principal were not incapacitated but may not revoke or amend other instructions in an advance health directive absent judicial authorization. (b) Nomination of guardian of person. —In a health care power -6- 21-02-293 ORPHANS’ COURT The Probate, Estates and Fiduciaries Code sets forth at 20 Pa.C.S. § 5521(a): Duty of guardian of the person.— It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent. Where appropriate, the guardian shall assure and participate in the development of a plan of supportive services to meet the person’s needs which explains how services will be obtained. The guardian shall also encourage the incapacitated person to participate to the maximum extent of his abilities in all decisions which affect him, to act on his own behalf whenever he is able to do so and to develop or regain, to the maximum extent possible, his capacity to manage his personal affairs. Section 5521(f) provides: Powers and duties not granted to guardian.—The court may not grant to a guardian powers controlled by other statute , including, but not limited to the power: (1) To admit the incapacitated person to an inpatient psychiatric facility or State center for the mentally retarded. (2) To consent, on behalf of the incapacitated person, to the relinquishment of the person’s parental rights. (Emphasis added.) The power to appoint a Health Care Agent who may make life-sustaining treatment decisions is controlled by the Health Care Agents and Representatives Act. Therefore, the Hockenberrys do not have such power either by virtue of their being David’s parents or by their appointment as guardians of his person. Under the Health Care Agents and Representatives Act, only an individual who is “of sound mind” may of attorney, a principal may nominate a guardian of the person for the principal for consideration by a court if incapacity proceedings for the principal’s person are thereafter commenced. If a court determines that the appointment of a guardian is necessary, the court shall appoint a guardian in accordance with the principal’s most recent nomination except for good cause or disqualification. -7- 21-02-293 ORPHANS’ COURT appoint a Health Care Agent. David Hockenberry has never been able to or will he be able to appoint a Health Care Agent. This court has no authority to make such an appointment. Therefore, the following order is entered. ORDER OF COURT AND NOW, this day of January, 2008, the petition of Myrl I. Hockenberry and Vada B. Hockenberry to be appointed as Health Care Agents for IS DENIED. David L. Hockenberry, By the Court, Edgar B. Bayley, J. Christopher S. Lucas, Esquire 220 Cumberland Parkway, Suite 4 Mechanicsburg, PA 17055 For Petitioners Howard Ulan, Esquire Office of General Counsel Department of Public Welfare Third Floor West Health and Welfare Building Harrisburg, PA 17120 For Ebensburg Center Jane E. Adams, Esquire Court-appointed for David Hockenberry :sal -8- IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY : ORPHANS' COURT DIVISION AN INCAPACITATED PERSON : 21-02-293 ORPHANS’ COURT IN RE: PETITION FOR APPOINTMENT AS HEALTH CARE AGENT ORDER OF COURT AND NOW, this day of January, 2008, the petition of Myrl I. Hockenberry and Vada B. Hockenberry to be appointed as Health Care Agents for IS DENIED. David L. Hockenberry, By the Court, Edgar B. Bayley, J. Christopher S. Lucas, Esquire 220 Cumberland Parkway, Suite 4 Mechanicsburg, PA 17055 For Petitioners Howard Ulan, Esquire Office of General Counsel Department of Public Welfare Third Floor West Health and Welfare Building Harrisburg, PA 17120 For Ebensburg Center Jane E. Adams, Esquire Court-appointed for David Hockenberry :sal