Pennsylvania’s Superior Court recently decided an important case concerning the validity of a health care power of attorney and living will once an individual becomes incapacitated: In re: Estate and Person of Russell R. Border Jr., an incapacitated person, 2013 PA Super 94 (April 23, 2013).
Because of the importance of the case and the need to recount facts, this will be a two-part article continuing next month.
In 2010, the Berks County Office of Aging filed a petition for appointment of a guardian on behalf of Border, a 62-year old resident of a nursing facility with chronic medical conditions and failing health. Border had a wife and two adult daughters.
In 2007, he executed a health care power of attorney naming his eldest daughter, Renee, as his agent.
The Office of Aging requested that Renee be appointed as guardian of Border’s person and nominated an attorney, Sharon Gray, as guardian of the estate. The Orphans’ Court Judge entered an order declaring Border to be an incapacitated person, appointed his daughter as guardian of the person, Gray as guardian of the estate, and revoked any other existing health care power of attorney previously executed by Border.
Two weeks later, the Office of Aging filed a motion for reconsideration based upon Renee’s decision to remove Border from the nursing facility to return him to his residence, where she intended to care for him. The Office of Aging felt that Renee was not physically able to care for her father and that he belonged in a nursing facility. The Orphans’ Court judge agreed and amended its order to appoint Gray as guardian of the estate. For two years, Gray served in the capacity of guardian of Border’s person and estate, making all decisions regarding his care and finances.
In March 2012, Border was admitted to the ICU at Reading Hospital, placed on a mechanical ventilator with other forms of life-sustaining treatment. Border’s physician contacted Gray to advise that Border’s health condition was both terminal and futile, and requested that she authorize removal of life support. Border’s family, including his wife, brother, sister and both adult daughters, all agreed with this recommendation. Gray disagreed and asserted her authority as guardian of Border’s person to prohibit the removal of life support.
In 2007, Border executed a durable power of attorney for health care and living will, where he appointed his daughter, Renee, as agent. Border elected to have life-sustaining treatments under all categories of situations listed in the living-will document. He also opted for his preferences to serve as a “general guide,” acknowledging that “in some situations, the person making the decisions for him may decide something different … if they think it is in his best interest.” Relying upon the living will and conversations between herself and Border (acknowledging, however, that those conversations took place after Border was already incapacitated), Gray refused to authorize removal of life support.
As a result of the conflict between Border’s family and Gray as guardian, the hospital filed an emergency petition, seeking the removal of Gray as guardian and suggesting that Border’s brother replace Gray. The Orphans’ Court Judge did just that, directing that the brother had specific authority to withhold and/or decline any life-sustaining medical treatment, including removing Border from a ventilator.