Default Health-Care Surrogate Priority in Pennsylvania

At a glance

Requirements one by one

When the default route opens

Under 20 Pa.C.S. § 5461(a), the attending physician must determine incompetence. The individual must lack a health care power of attorney or have no reasonably available, willing agent or alternate, and no guardian appointed to make health care decisions. A designated representative under § 5461(d)(1) comes before the statutory default classes. If an agent's principal later receives a guardian, § 5460(a) directs the court to determine how much of the agent's authority remains.

Care or setting covered

Section 5461(a) authorizes health care decisions for an eligible individual without naming a facility-only route. Subsection (b) expressly reaches treatment, care, goods, or services a caretaker is obliged to provide to a care-dependent person with an end-stage condition or permanent unconsciousness under the cited criminal-code provision.

Family and partner order

Section 5461(d)(1)(i) puts a spouse with no pending divorce action and the individual's adult children who are not that spouse's children in the first class. The following classes are an adult child, parent, adult sibling, adult grandchild, and finally a knowledgeable adult. The individual may set a different priority order in a signed writing under § 5461(d)(2).

Decision within one class

When multiple people in one class assume authority and disagree, § 5461(g)(1) lets the provider rely on a majority of those who communicated views. If that class is evenly split, § 5461(g)(2) prevents a lower class from taking over and says no decision is made until the disagreement is resolved; accepted medical treatment may continue.

Who is available and eligible

Section 5461(d)(3) allows a willing higher-priority person to assume authority even after another person began acting. Under § 5461(e), the individual can disqualify someone and a court can disqualify for cause. Subsection (f) bars an unrelated attending physician, provider, or owner, operator, or employee of the treating provider from serving.

Decisions limited or excluded

Section 5461(c) borrows the health care agent's decision process in § 5456, including the patient's instructions, preferences, and values. Under § 5462(c)(1), life-preserving care must generally be given to a person who is neither end-stage nor permanently unconscious despite a representative's objection, subject to the stated exceptions. Under § 5429(a), contrary life-sustaining decisions for certain pregnant patients require the specified physician-and-obstetrician certifications. Under § 5463(a), separate mental-health consent requirements remain in force.

No representative or disputed authority

Section 5461(g) supplies the tie rule, while subsection (e) allows court disqualification for cause. Section 5463(c)(4) preserves Pennsylvania's separate emergency-consent law; this representative statute does not create a general replacement clinician class.

What trips people up

The first default class in § 5461(d)(1)(i) is unusual: adult children who are not children of the spouse share it with the spouse. A pending divorce action removes the spouse from that class. A later willing person of higher rank can assume authority under § 5461(d)(3).

Common questions

Must a representative get court approval for each decision? Section 5461(j) says a representative's decision is effective without court approval. A provider may request a declaration under penalty of perjury establishing authority under § 5461(k).

Can the patient reverse a decision? Section 5461(i) allows a person of sound mind to countermand any representative decision. It also permits a patient, regardless of capacity, to countermand withholding or withdrawal of life-sustaining treatment by personally informing the attending physician.

Statutes and sources

• 20 Pa.C.S. §§ 5429, 5456, 5460–5463. Verbatim official excerpts, the current chapter URL, and access dates appear in the source fields above.