A health care power of attorney and living will remain in effect even after a guardianship is established, but the probate court can remove the guardian if she isn't acting in the ward's best interest, according to a Pennsylvania court. In re: Estate of Border (Pa. Super. Ct., No. 537 MDA 2012, April 23, 2012).
Russell Border created a durable power of attorney for health care and a living will that appointed his daughter as his health care agent. The living will specified that Mr. Border wanted life-sustaining treatments under all the categories listed, although the document stated that his elections should serve as a “general guide” and could be altered if that were in his best interest. Mr. Border became incapacitated and attorney Sharon Gray was appointed as his guardian. Eventually, Mr. Border was hospitalized for a serious illness. The hospital recommended that Ms. Gray authorize the removal of Mr. Border's life support, and his family agreed. Ms. Gray refused, citing the living will.
The hospital filed a petition to remove Ms. Gray as guardian. The probate court appointed Mr. Border's brother as guardian and granted the brother the power to withhold life-sustaining medical treatment. Life support was removed and Mr. Border died the same day. Ms. Gray appealed the decision.
The Pennsylvania Superior Court affirms, holding that the probate court had the authority to remove Ms. Gray as guardian and authorize the removal of life support. The court rules that the health care power of attorney and living will remained valid even after Mr. Border became incapacitated, but the guardian does have the authority to revoke the health care power of attorney. The court goes on to rule that even though the health care power of attorney and living will were still in effect, the probate court had the power to remove Ms. Gray as guardian because she wasn't acting in Mr. Border's best interest.
For the full text of this decision, go to: https://www.pacourts.us/assets/opinions/Superior/out/a34021_12.pdf?cb=1
For a summary and analysis of the case by Pennsylvania ElderLawAnswers member Jeffrey A. Marshall, click here.
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