act-2004-0-194•Pennsylvania Act 2004-194 — DECEDENTS, ESTATES AND FIDUCIARIES (20 PA.C.S.) - MENTAL HEALTH CARE DECLARATIONS AND POWERS OF ATTORNEY AND PRUDENT INVESTOR RULE
Pennsylvania Act 2004-194 — DECEDENTS, ESTATES AND FIDUCIARIES (20 PA.C.S.) - MENTAL HEALTH CARE DECLARATIONS AND POWERS OF ATTORNEY AND PRUDENT INVESTOR RULE
act-2004-0-1942004 Pa. Act 194Law
Act text
DECEDENTS, ESTATES AND FIDUCIARIES (20 PA.C.S.) - MENTAL HEALTH CARE
DECLARATIONS AND POWERS OF ATTORNEY AND PRUDENT INVESTOR RULE
Act of Nov. 30, 2004, P.L. 1525, No. 194 Cl. 20
Session of 2004
No. 2004-194
HB 2036
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the
Pennsylvania Consolidated Statutes, providing for mental
health care declarations and powers of attorney; further
providing for the prudent investor rule; and repealing
provisions relating to the applicability of requirements for
charitable trusts with controlling interests in certain
corporations.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 20 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 58
MENTAL HEALTH CARE
Subchapter
A. General Provisions
B. Mental Health Declarations
C. Mental Health Powers of Attorney
SUBCHAPTER A
GENERAL PROVISIONS
Sec.
5801. Applicability.
5802. Definitions.
5803. Legislative findings and intent.
5804. Compliance.
5805. Liability.
5806. Penalties.
5807. Rights and responsibilities.
5808. Combining mental health care instruments.
§ 5801. Applicability.
(a) General rule.--This chapter applies to mental health
declarations and mental health powers of attorney.
(b) Preservation of existing rights.--The provisions of this
chapter shall not be construed to impair or supersede any
existing rights or responsibilities not addressed in this
chapter.
§ 5802. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Attending physician." A physician who has primary
responsibility for the treatment and care of the declarant or
principal.
"Declarant." An individual who makes a declaration in
accordance with this chapter.
"Declaration." A writing made in accordance with this
chapter that expresses a declarant's wishes and instructions for
mental health care and mental health care directions and which
may contain other specific directions.
"Mental health care." Any care, treatment, service or
procedure to maintain, diagnose, treat or provide for mental
health, including any medication program and therapeutical
treatment.
"Mental health care agent." An individual designated by a
principal in a mental health power of attorney.
"Mental health care provider." A person who is licensed,
certified or otherwise authorized by the laws of this
Commonwealth to administer or provide mental health care in the
ordinary course of business or practice of a profession.
"Mental health power of attorney." A writing made by a
principal designating an individual to make mental health care
decisions for the principal.
"Mental health treatment professional." A licensed physician
who has successfully completed a residency program in psychiatry
or a person trained and licensed in social work, psychology or
nursing who has a graduate degree and clinical experience in
mental health.
"Principal." An individual who makes a mental health power
of attorney in accordance with this chapter.
§ 5803. Legislative findings and intent.
(a) Intent.--This chapter provides a means for competent
adults to control their mental health care either directly
through instructions written in advance or indirectly through a
mental health care agent.
(b) Presumption not created.--This chapter shall not be
construed to create any presumption regarding the intent of an
individual who has not executed a declaration or mental health
care power of attorney to consent to the use or withholding of
treatment.
(c) Findings in general.--The General Assembly finds that
all capable adults have a qualified right to control decisions
relating to their own mental health care.
§ 5804. Compliance.
(a) Duty to comply.--
(1) An attending physician and mental health care
provider shall comply with mental health declarations and
powers of attorney.
(2) If an attending physician or other mental health
care provider cannot in good conscience comply with a
declaration or mental health care decision of a mental health
care agent because the instructions are contrary to accepted
clinical practice and medical standards or because treatment
is unavailable or if the policies of a mental health care
provider preclude compliance with a declaration or mental
health care decision of a mental health care agent,
immediately upon receipt of the declaration or power of
attorney and as soon as any possibility of noncompliance
becomes apparent, the attending physician or mental health
care provider shall so inform the following:
(i) The declarant if the declarant is competent.
(ii) The substitute named in the declaration if the
declarant is incompetent.
(iii) The guardian or other legal representative of
the declarant if the declarant is incompetent and a
substitute is not named in the declaration.
(iv) The mental health care agent of the principal.
(3) The physician or mental health care provider shall
document the reasons for noncompliance.
(b) Transfer.--An attending physician or mental health care
provider under subsection (a)(2) shall make every reasonable
effort to assist in the transfer of the declarant or principal
to another physician or mental health care provider who will
comply with the declaration or mental health care decision of
the mental health care agent. While the transfer is pending, the
patient shall be treated consistent with the declaration or
mental health care decision of the mental health agent. If
reasonable efforts to transfer fail, the patient may be
discharged.
§ 5805. Liability.
(a) General rule.--A person who is a physician, another
mental health care provider or another person who acts in good
faith and consistent with this chapter may not be subject to
criminal or civil liability, discipline for unprofessional
conduct or administrative sanctions and may not be found to have
committed an act of unprofessional conduct by any professional
board or administrative body with such authority as a result of
any of the following:
(1) Complying with a direction or decision of an
individual who the person believes in good faith has
authority to act as a principal's mental health care agent so
long as the direction or decision is not clearly contrary to
the terms of the mental health power of attorney.
(2) Refusing to comply with a direction or decision of
an individual based on a good faith belief that the
individual lacks authority to act as a principal's mental
health care agent.
(3) Complying with a mental health care power of
attorney or declaration under the assumption that it was
valid when made and has not been amended or revoked.
(4) Disclosing mental health care information to another
person based upon a good faith belief that the disclosure is
authorized, permitted or required by this chapter.
(5) Refusing to comply with the direction or decision of
an individual due to conflicts with a provider's contractual,
network or payment policy restrictions.
(6) Refusing to comply with a declaration or mental
health power of attorney which violates accepted clinical
standards or medical standards of care.
(7) Making a determination that the patient lacks
capacity to make mental health decisions that causes a
declaration or a mental health power of attorney to become
effective.
(8) Failing to determine that a patient lacks capacity
to make mental health decisions for the purposes of this
chapter.
(b) Same effect as if dealing with principal.--Any attending
physician, mental health care provider and other person who acts
under subsection (a) shall be protected and released to the same
extent as if dealing directly with a competent principal.
(c) Good faith of mental health care agent.--A mental health
care agent who acts according to the terms of a mental health
power of attorney may not be subject to civil or criminal
liability for acting in good faith for a principal or failing in
good faith to act for a principal.
§ 5806. Penalties.
(a) Offense defined.--A person commits a felony of the third
degree by willfully:
(1) Concealing, canceling, altering, defacing,
obliterating or damaging a declaration without the consent of
the declarant.
(2) Concealing, canceling, altering, defacing,
obliterating or damaging a mental health power of attorney or
any amendment or revocation thereof without the consent of
the principal.
(3) Causing a person to execute a declaration or power
of attorney under this chapter by undue influence, fraud or
duress.
(4) Falsifying or forging a mental health power of
attorney or declaration or any amendment or revocation
thereof, the result of which is a direct change in the mental
health care provided to the principal.
(b) Removal and liability.--An agent who willfully fails to
comply with a mental health power of attorney may be removed and
sued for actual damages.
§ 5807. Rights and responsibilities.
(a) Declarants and principals.--Persons who execute a
declaration or a mental health power of attorney shall have the
following rights and responsibilities:
(1) For the purposes of this chapter, persons are
presumed capable of making mental health decisions, including
the execution of a mental health declaration or power of
attorney, unless they are adjudicated incapacitated,
involuntarily committed or found to be incapable of making
mental health decisions after examination by a psychiatrist
and one of the following: another psychiatrist, psychologist,
family physician, attending physician or mental health
treatment professional. Whenever possible, at least one of
the decision makers shall be a treating professional of the
declarant or principal.
(2) Persons shall be required to notify their mental
health care provider of the existence of any declaration or
mental health power of attorney.
(3) Persons shall execute or amend their declarations or
mental health powers of attorney every two years; however, if
a person is incapable of making mental heath care decisions
at the time this document would expire, the document shall
remain in effect and be reviewed at the time when the person
regains capacity.
(4) Persons shall give notice of amendment and
revocation to providers, agents and guardians, if any.
(b) Providers.--Mental health treatment providers shall have
the following rights and responsibilities:
(1) Inquire as to the existence of declarations or
powers of attorney for persons in their care.
(2) Inform persons who are being discharged from
treatment about the availability of mental health
declarations and powers of attorney as part of discharge
planning.
(3) Not require declarations or powers of attorney as
conditions of treatment. Mental health treatment providers
may not choose whether to accept a person for treatment based
solely on the existence or absence of a mental health
declaration or power of attorney.
§ 5808. Combining mental health instruments.
(a) General rule.--A declaration and mental health power of
attorney may be combined into one mental health document.
(b) Form.--A combined declaration and mental health power of
attorney may be in the following form or any other written form
which contains the information required under Subchapters B
(relating to mental health declarations) and C (relating to
mental health powers of attorney):
Combined Mental Health Care Declaration
and Power of Attorney Form
Part I. Introduction.
I, , having capacity to make mental health
decisions, willfully and voluntarily make this declaration
and power of attorney regarding my mental health care.
I understand that mental health care includes any care,
treatment, service or procedure to maintain, diagnose, treat
or provide for mental health, including any medication
program and therapeutic treatment. Electroconvulsive therapy
may be administered only if I have specifically consented to
it in this document. I will be the subject of laboratory
trials or research only if specifically provided for in this
document. Mental health care does not include psychosurgery
or termination of parental rights.
I understand that my incapacity will be determined by
examination by a psychiatrist and one of the following:
another psychiatrist, psychologist, family physician,
attending physician or mental health treatment professional.
Whenever possible, one of the decision makers will be one of
my treating professionals.
Part II. Mental Health Declaration.
A. When this declaration becomes effective.
This declaration becomes effective at the following
designated time:
( ) When I am deemed incapable of making mental health care
decisions.
( ) When the following condition is met:
(List condition)
B. Treatment preferences.
1. Choice of treatment facility.
( ) In the event that I require commitment to a psychiatric
treatment facility, I would prefer to be admitted to the
following facility:
(Insert name and address of facility)
( ) In the event that I require commitment to a psychiatric
treatment facility, I do not wish to be committed to the
following facility:
(Insert name and address of facility)
I understand that my physician may have to place me in a
facility that is not my preference.
2. Preferences regarding medications for psychiatric
treatment.
( ) I consent to the medications that my treating physician
recommends.
( ) I consent to the medications that my treating physician
recommends with the following exception, preference or
limitation:
(List medication and reason for exception, preference or
limitation)
The exception, preference or limitation applies to generic,
brand name and trade name equivalents. I understand that
dosage instructions are not binding on my physician.
( ) I do not consent to the use of any medications.
( ) I have designated an agent under the power of attorney
portion of this document to make decisions related to
medication.
3. Preferences regarding electroconvulsive therapy
(ECT).
( ) I consent to the administration of electroconvulsive
therapy.
( ) I do not consent to the administration of
electroconvulsive therapy.
( ) I have designated an agent under the power of attorney
portion of this document to make decisions related to
electroconvulsive therapy.
4. Preferences for experimental studies or drug trials.
( ) I consent to participation in experimental studies if my
treating physician believes that the potential benefits to me
outweigh the possible risks to me.
( ) I have designated an agent under the power of attorney
portion of this document to make decisions related to
experimental studies.
( ) I do not consent to participation in experimental
studies.
( ) I consent to participation in drug trials if my treating
physician believes that the potential benefits to me outweigh
the possible risks to me.
( ) I have designated an agent under the power of attorney
portion of this document to make decisions related to drug
trials.
( ) I do not consent to participation in any drug trials.
5. Additional instructions or information.
Examples of other instructions or information that may be
included:
Activities that help or worsen symptoms.
Type of intervention preferred in the event of a crisis.
Mental and physical health history.
Dietary requirements.
Religious preferences.
Temporary custody of children.
Family notification.
Limitations on the release or disclosure of mental health
records.
Other matters of importance.
C. Revocation.
This declaration may be revoked in whole or in part at any
time, either orally or in writing, as long as I have not been
found to be incapable of making mental health decisions.
My revocation will be effective upon communication to my
attending physician or other mental health care provider,
either by me or a witness to my revocation, of the intent to
revoke. If I choose to revoke a particular instruction
contained in this declaration in the manner specified, I
understand that the other instructions contained in this
declaration will remain effective until:
(1) I revoke this declaration in its entirety;
(2) I make a new combined mental health declaration and
power of attorney; or
(3) two years after the date this document was executed.
D. Termination.
I understand that this declaration will automatically
terminate two years from the date of execution unless I am
deemed incapable of making mental health care decisions at
the time that this declaration would expire.
(Specify date)
E. Preference as to a court-appointed guardian.
I understand that I may nominate a guardian of my person for
consideration by the court if incapacity proceedings are
commenced under 20 Pa.C.S. § 5511. I understand that the
court will appoint a guardian in accordance with my most
recent nomination except for good cause or disqualification.
In the event a court decides to appoint a guardian, I desire
the following person to be appointed:
(Insert name, address, telephone number of the designated
person)
( ) The appointment of a guardian of my person will not give
the guardian the power to revoke, suspend or terminate this
declaration.
( ) Upon appointment of a guardian, I authorize the guardian
to revoke, suspend or terminate this declaration.
Part III. Mental Health Power of Attorney.
I, , having the capacity to make mental health
decisions, authorize my designated health care agent to make
certain decisions on my behalf regarding my mental health
care. If I have not expressed a choice in this document or in
the accompanying declaration, I authorize my agent to make
the decision that my agent determines is the decision I would
make if I were competent to do so.
A. Designation of agent.
I hereby designate and appoint the following person as my
agent to make mental health care decisions for me as
authorized in this document. This authorization applies only
to mental health decisions that are not addressed in the
accompanying signed declaration.
(Insert name of designated person)
Signed:
(My name, address, telephone number)
Witnesses signatures:
(Insert names, addresses, telephone numbers of witnesses)
Agent's acceptance:
I hereby accept designation as mental health care agent for
(Insert name of declarant)
Agent's signature:
(Insert name, address, telephone number of designated person)
B. Designation of alternative agent.
In the event that my first agent is unavailable or unable to
serve as my mental health care agent, I hereby designate and
appoint the following individual as my alternative mental
health care agent to make mental health care decisions for me
as authorized in this document:
(Insert name of designated person)
Signed:
(My name, address, telephone number)
Witnesses signatures:
(Insert names, addresses, telephone numbers of witnesses)
Alternative agent's acceptance:
I hereby accept designation as alternative mental health care
agent for (Insert name of declarant)
Alternative agent's signature:
(Insert name, address, telephone number of alternative agent)
C. When this power of attorney become effective.
This power of attorney will become effective at the following
designated time:
( ) When I am deemed incapable of making mental health care
decisions.
( ) When the following condition is met:
(List condition)
D. Authority granted to my mental health care agent.
I hereby grant to my agent full power and authority to make
mental health care decisions for me consistent with the
instructions and limitations set forth in this document. If I
have not expressed a choice in this power of attorney or in
the accompanying declaration, I authorize my agent to make
the decision that my agent determines is the decision I would
make if I were competent to do so.
(1) Preferences regarding medications for psychiatric
treatment.
( ) My agent is authorized to consent to the use of any
medications after consultation with my treating psychiatrist
and any other persons my agent considers appropriate.
( ) My agent is not authorized to consent to the use of any
medications.
(2) Preferences regarding electroconvulsive therapy
(ECT).
( ) My agent is authorized to consent to the administration
of electroconvulsive therapy.
( ) My agent is not authorized to consent to the
administration of electroconvulsive therapy.
(3) Preferences for experimental studies or drug trials.
( ) My agent is authorized to consent to my participation in
experimental studies if, after consultation with my treating
physician and any other individuals my agent deems
appropriate, my agent believes that the potential benefits to
me outweigh the possible risks to me.
( ) My agent is not authorized to consent to my participation
in experimental studies.
( ) My agent is authorized to consent to my participation in
drug trials if, after consultation with my treating physician
and any other individuals my agent deems appropriate, my
agent believes that the potential benefits to me outweigh the
possible risks to me.
( ) My agent is not authorized to consent to my participation
in drug trials.
E. Revocation.
This power of attorney may be revoked in whole or in part at
any time, either orally or in writing, as long as I have not
been found to be incapable of making mental health decisions.
My revocation will be effective upon communication to my
attending physician or other mental health care provider,
either by me or a witness to my revocation, of the intent to
revoke. If I choose to revoke a particular instruction
contained in this power of attorney in the manner specified,
I understand that the other instructions contained in this
power of attorney will remain effective until:
(1) I revoke this power of attorney in its entirety;
(2) I make a new combined mental health care declaration
and power of attorney; or
(3) two years from the date this document was executed.
I understand that this power of attorney will automatically
terminate two years from the date of execution unless I am
deemed incapable of making mental health care decisions at
the time that the power of attorney would expire.
I am making this combined mental health care declaration and
power of attorney on the (insert day) day of (insert month),
(insert year).
My signature:
(My name, address, telephone number)
Witnesses signatures:
(Names, addresses, telephone numbers of witnesses).
If the principal making this combined mental health care
declaration and power of attorney is unable to sign this
document, another individual may sign on behalf of and at the
direction of the principal.
Signature of person signing on my behalf:
(Name, address, telephone number)
SUBCHAPTER B
MENTAL HEALTH DECLARATIONS
Sec.
5821. Short title of subchapter.
5822. Execution.
5823. Form.
5824. Operation.
5825. Revocation.
5826. Amendment.
§ 5821. Short title of subchapter.
This subchapter shall be known and may be cited as the
Advance Directive for Mental Health Act.
§ 5822. Execution.
(a) Who may make.--An individual who is at least 18 years of
age or an emancipated minor and has not been deemed
incapacitated pursuant to section 5511 (relating to petition and
hearing; independent evaluation) or severely mentally disabled
pursuant to Article III of the act of July 9, 1976 (P.L.817,
No.143), known as the Mental Health Procedures Act, may make a
declaration governing the initiation, continuation, withholding
or withdrawal of mental health treatment.
(b) Requirements.--A declaration must be:
(1) Dated and signed by the declarant by signature or
mark or by another individual on behalf of and at the
direction of the declarant.
(2) Witnessed by two individuals, each of whom must be
at least 18 years of age.
(c) Witnesses.--
(1) An individual who signs a declaration on behalf of
and at the direction of a declarant may not witness the
declaration.
(2) A mental health care provider and its agent may not
sign a declaration on behalf of and at the direction of a
declarant if the mental health care provider or agent
provides mental health care services to the declarant.
§ 5823. Form.
A declaration may be in the following form or any other
written form that expresses the wishes of a declarant regarding
the initiation, continuation or refusal of mental health
treatment and may include other specific directions, including,
but not limited to, designation of another individual to make
mental health treatment decisions for the declarant if the
declarant is incapable of making mental health decisions:
Mental Health Declaration.
I, , having the capacity to make mental
health decisions, willfully and voluntarily make this
declaration regarding my mental health care.
I understand that mental health care includes any care,
treatment, service or procedure to maintain, diagnose, treat
or provide for mental health, including any medication
program and therapeutic treatment. Electroconvulsive therapy
may be administered only if I have specifically consented to
it in this document. I will be the subject of laboratory
trials or research only if specifically provided for in this
document. Mental health care does not include psychosurgery
or termination of parental rights.
I understand that my incapacity will be determined by
examination by a psychiatrist and one of the following:
another psychiatrist, psychologist, family physician,
attending physician or mental health treatment professional.
Whenever possible, one of the decision makers will be one of
my treating professionals.
A. When this declaration becomes effective.
This declaration becomes effective at the following
designated time:
( ) When I am deemed incapable of making mental health care
decisions.
( ) When the following condition is met:
(List condition)
B. Treatment preferences.
1. Choice of treatment facility.
( ) In the event that I require commitment to a psychiatric
treatment facility, I would prefer to be admitted to the
following facility:
(Insert name and address of facility)
( ) In the event that I require commitment to a psychiatric
treatment facility, I do not wish to be committed to the
following facility:
(Insert name and address of facility)
I understand that my physician may have to place me in a
facility that is not my preference.
2. Preferences regarding medications for psychiatric
treatment.
( ) I consent to the medications that my treating physician
recommends with the following exception, preference or
limitation:
(List medication and reason for exception, preference or
limitation)
This exception, preference or limitation applies to generic,
brand name and trade name equivalents. I understand that
dosage instructions are not binding on my physician.
( ) I do not consent to the use of any medications.
3. Preferences regarding electroconvulsive therapy
(ECT).
( ) I consent to the administration of electroconvulsive
therapy.
( ) I do not consent to the administration of
electroconvulsive therapy.
4. Preferences for experimental studies or drug trials.
( ) I consent to participation in experimental studies if my
treating physician believes that the potential benefits to me
outweigh the possible risks to me.
( ) I do not consent to participation in experimental
studies.
( ) I consent to participation in drug trials if my treating
physician believes that the potential benefits to me outweigh
the possible risks to me.
( ) I do not consent to participation in any drug trials.
5. Additional instructions or information.
Examples of other instructions or information that may be
included:
Activities that help or worsen symptoms.
Type of intervention preferred in the event of a crisis.
Mental and physical health history.
Dietary requirements.
Religious preferences.
Temporary custody of children.
Family notification.
Limitations on the release or disclosure of mental health
records.
Other matters of importance.
C. Revocation.
This declaration may be revoked in whole or in part at any
time, either orally or in writing, as long as I have not been
found to be incapable of making mental health decisions.
My revocation will be effective upon communication to my
attending physician or other mental health care provider,
either by me or a witness to my revocation, of the intent to
revoke. If I choose to revoke a particular instruction
contained in this declaration in the manner specified, I
understand that the other instructions contained in this
declaration will remain effective until:
(1) I revoke this declaration in its entirety;
(2) I make a new mental health care declaration; or
(3) two years after the date this document was executed.
D. Termination.
I understand that this declaration will automatically
terminate two years from the date of execution unless I am
deemed incapable of making mental health care decisions at
the time that the declaration would expire.
E. Preference as to a court-appointed guardian.
I understand that I may nominate a guardian of my person for
consideration by the court if incapacity proceedings are
commenced pursuant to 20 Pa.C.S. § 5511. I understand that
the court will appoint a guardian in accordance with my most
recent nomination except for good cause or disqualification.
In the event a court decides to appoint a guardian, I desire
the following person to be appointed:
(Insert name, address and telephone number
of designated person)
( ) The appointment of a guardian of my person will not give
the guardian the power to revoke, suspend or terminate this
declaration.
( ) Upon appointment of a guardian, I authorize the guardian
to revoke, suspend or terminate this declaration.
I am making this declaration on the (insert day)
day of (insert month), (insert year).
My signature: (My name, address, telephone number)
Witnesses' signatures: (Names, addresses, telephone numbers
of witnesses)
If the principal making this declaration is unable to sign
it, another individual may sign on behalf of and at the
direction of the principal.
Signature of person signing on my behalf:
(Name, address and telephone number)
§ 5824. Operation.
(a) When operative.--A declaration becomes operative when:
(1) A copy is provided to the attending physician.
(2) The conditions stated in the declaration are met.
(b) Compliance.--When a declaration becomes operative, the
attending physician and other mental health care providers shall
act in accordance with its provisions or comply with the
transfer provisions of section 5804 (relating to compliance).
(c) Invalidity of specific direction.--If a specific
direction in the declaration is held to be invalid, the
invalidity shall not be construed to negate other directions in
the declaration that can be effected without the invalid
direction.
(d) Mental health record.--A physician or other mental
health care provider to whom a copy of a declaration is
furnished shall make it a part of the mental health record of
the declarant for at least two years from the date of execution
and, if unwilling to comply with the declaration, promptly so
advise those listed in section 5804(a)(2).
(e) Duration.--A declaration shall be valid until revoked by
the declarant or until two years from the date of execution. If
a declaration for mental health treatment has been invoked and
is in effect at the specified expiration date after its
execution, the declaration shall remain effective until the
principal is no longer incapable.
(f) Absence of declaration.--If an individual does not make
a declaration, a presumption does not arise regarding the intent
of the individual to consent to or to refuse a mental health
treatment.
§ 5825. Revocation.
(a) When declaration may be revoked.--A declaration may be
revoked by the declarant at any time, either orally or in
writing, in whole or in part, unless the individual has been
found to be incapable of making mental health decisions or the
individual has been involuntarily committed.
(b) Capacity to revoke.--Subsection (a) notwithstanding,
during a period of involuntary commitment pursuant to Article
III of the act of July 9, 1976 (P.L.817, No.143), known as the
Mental Health Procedures Act, a declarant may revoke the
declaration only if found to be capable of making mental health
decisions after examination by a psychiatrist and one of the
following: another psychiatrist, a psychologist, a family
physician, an attending physician or a mental treatment
professional. Whenever possible, at least one of the decision
makers shall be a treating professional of the declarant or
principal.
(c) Effect of revocation.--A revocation of a declaration
shall be effective upon communication to the attending physician
or other mental health care provider by the declarant or a
witness to the revocation of the intent to revoke.
(d) Mental health record.--An attending physician or other
mental health care provider shall make revocation, a finding of
capacity or a declaration part of the mental health record of
the declarant.
§ 5826. Amendment.
(a) Capacity to amend.--While having the capacity to make
mental health decisions, a declarant may amend a declaration by
a writing executed in accordance with the provisions of section
5822 (relating to execution).
(b) Determination of capacity.--During the period of
involuntary treatment pursuant to Article III of the act of July
9, 1976 (P.L.817, No.143), known as the Mental Health Procedures
Act, a declarant may amend the declaration if the individual is
found to be capable of making mental health decisions after
examination by a psychiatrist and one of the following: another
psychiatrist, a psychologist, family physician, attending
physician or mental health treatment professional. Whenever
possible, at least one of the decision makers shall be a
treating professional of the declarant or principal.
SUBCHAPTER C
MENTAL HEALTH POWERS OF ATTORNEY
Sec.
5831. Short title of subchapter.
5832. Execution.
5833. Form.
5834. Operation.
5835. Appointment of mental health care agents.
5836. Authority of mental health care agent.
5837. Removal of agent.
5838. Effect of divorce.
5839. Revocation.
5840. Amendment.
5841. Relation of mental health care agent to court-appointed
guardian and other agents.
5842. Duties of attending physician and mental health care
provider.
5843. Construction.
5844. Conflicting
provisions.
5845. Validity.
§ 5831. Short title of subchapter.
This subchapter shall be known and may be cited as the Mental
Health Care Agents Act.
§ 5832. Execution.
(a) Who may make.--An individual who is at least 18 years of
age or an emancipated minor and who has not been deemed
incapacitated pursuant to section 5511 (relating to petition and
hearing; independent evaluation) or found to be severely
mentally disabled pursuant to Article III of the act of July 9,
1976 (P.L.817, No.143), known as the Mental Health Procedures
Act, may make a mental health power of attorney governing the
initiation, continuation, withholding or withdrawal of mental
health treatment.
(b) Requirements.--A mental health power of attorney must
be:
(1) Dated and signed by the principal by signature or
mark or by another individual on behalf of and at the
direction of the principal.
(2) Witnessed by two individuals, each of whom must be
at least 18 years of age.
(c) Witnesses.--
(1) An individual who signs a mental health power of
attorney on behalf of and at the direction of a principal may
not witness the mental health power of attorney.
(2) A mental health care provider and its agent may not
sign a mental health power of attorney on behalf of and at
the direction of a principal if the mental health care
provider or agent provides mental health care services to the
principal.
§ 5833. Form.
(a) Requirements.--A mental health power of attorney must do
the following:
(1) Identify the principal and appoint the mental health
care agent.
(2) Declare that the principal authorizes the mental
health care agent to make mental health care decisions on
behalf of the principal.
(b) Optional provisions.--A mental health power of attorney
may:
(1) Describe any limitations that the principal imposes
upon the authority of the mental health care agent.
(2) Indicate the intent of the principal regarding the
initiation, continuation or refusal of mental health
treatment.
(3) Nominate a guardian of the person of the principal
as provided in Subchapter C of Chapter 55 (relating to
appointment of guardian; bonds; removal and discharge).
(4) Contain other provisions as the principal may
specify regarding the implementation of mental health care
decisions and related actions by the mental health care
agent.
(c) Written form.--A mental health power of attorney may be
in the following form or any other written form identifying the
principal, appointing a mental health care agent and declaring
that the principal authorizes the mental health care agent to
make mental health care decisions on behalf of the principal:
Mental Health Power of Attorney
I, , having the capacity to make mental
health decisions, authorize my designated health care agent
to make certain decisions on my behalf regarding my mental
health care. If I have not expressed a choice in this
document, I authorize my agent to make the decision that my
agent determines is the decision I would make if I were
competent to do so.
I understand that mental health care includes any care,
treatment, service or procedure to maintain, diagnose, treat
or provide for mental health, including any medication
program and therapeutic treatment. Electroconvulsive therapy
may be administered only if I have specifically consented to
it in this document. I will be the subject of laboratory
trials or research only if specifically provided for in this
document. Mental health care does not include psychosurgery
or termination of parental rights.
I understand that my incapacity will be determined by
examination by a psychiatrist and one of the following:
another psychiatrist, psychologist, family physician,
attending physician or mental health treatment professional.
Whenever possible, one of the decision makers shall be one of
my treating professionals.
A. Designation of agent.
I hereby designate and appoint the following person as my
agent to make mental health care decisions for me as
authorized in this document:
(Insert name of designated person)
Signed:
(My name, address, telephone number)
(Witnesses' signatures)
(Names, addresses, telephone numbers of witnesses)
Agent's acceptance:
I hereby accept designation as mental health care agent for
(Insert name of declarant)
Agent's signature:
(Insert name, address, telephone number of designated person)
B. Designation of alternative agent.
In the event that my first agent is unavailable or unable to
serve as my mental health care agent, I hereby designate and
appoint the following individual as my alternative mental
health care agent to make mental health care decisions for me
as authorized in this document:
(Insert name of designated person)
Signed:
(Witnesses' signatures)
(Names, addresses, telephone numbers of witnesses)
Alternative agent's acceptance:
I hereby accept designation as alternative mental health care
agent for
(Insert name of declarant)
Alternative agent's signature: .
(Insert name, address, telephone number)
C. When this power of attorney becomes effective.
This power of attorney will become effective at the following
designated time:
( ) When I am deemed incapable of making mental health care
decisions.
( ) When the following condition is met:
(List condition)
D. Authority granted to my mental health care agent.
I hereby grant to my agent full power and authority to make
mental health care decisions for me consistent with the
instructions and limitations set forth in this power of
attorney. If I have not expressed a choice in this power of
attorney, I authorize my agent to make the decision that my
agent determines is the decision I would make if I were
competent to do so.
E. Treatment preferences.
1. Choice of treatment facility.
( ) In the event that I require commitment to a psychiatric
treatment facility, I would prefer to be admitted to the
following facility:
(Insert name and address of facility)
( ) In the event that I require commitment to a psychiatric
treatment facility, I do not wish to be committed to the
following facility:
(Insert name and address of facility)
I understand that my physician may have to place me in a
facility that is not my preference.
2. Preferences regarding medications for psychiatric
treatment.
( ) I consent to the medications that my agent agrees to
after consultation with my treating physician and any other
persons my agent considers appropriate.
( ) I consent to the medications that my agent agrees to,
with the following exception or limitation:
(List exception or limitation)
This exception or limitation applies to generic, brand name
and trade name equivalents.
( ) My agent is not authorized to consent to the use of any
medications.
3. Preferences regarding electroconvulsive therapy
(ECT).
( ) My agent is authorized to consent to the administration
of electroconvulsive therapy.
( ) My agent is not authorized to consent to the
administration of electroconvulsive therapy.
4. Preferences for experimental studies or drug trials.
( ) My agent is authorized to consent to my participation in
experimental studies if, after consultation with my treating
physician and any other individuals my agent deems
appropriate, my agent believes that the potential benefits to
me outweigh the possible risks to me.
( ) My agent is not authorized to consent to my
participation in experimental studies.
( ) My agent is authorized to consent to my participation in
drug trials if, after consultation with my treating physician
and any other individuals my agent deems appropriate, my
agent believes that the potential benefits to me outweigh the
possible risks to me.
( ) My agent is not authorized to consent to my
participation in drug trials.
5. Additional information and instructions.
Examples of other information that may be included:
Activities that help or worsen symptoms.
Type of intervention preferred in the event of a crisis.
Mental and physical health history.
Dietary requirements.
Religious preferences.
Temporary custody of children.
Family notification.
Limitations on release or disclosure of mental health
records.
Other matters of importance.
F. Revocation.
This power of attorney may be revoked in whole or in part at
any time, either orally or in writing, as long as I have not
been found to be incapable of making mental health decisions.
My revocation will be effective upon communication to my
attending physician or other mental health care provider,
either by me or a witness to my revocation, of the intent to
revoke. If I choose to revoke a particular instruction
contained in this power of attorney in the manner specified,
I understand that the other instructions contained in this
power of attorney will remain effective until:
(1) I revoke this power of attorney in its entirety;
(2) I make a new mental health power of attorney; or
(3) two years after the date this document was executed.
G. Termination.
I understand that this power of attorney will automatically
terminate two years from the date of execution unless I am
deemed incapable of making mental health care decisions at
the time the power of attorney would expire.
H. Preference as to a court-appointed guardian.
I understand that I may nominate a guardian of my person for
consideration by the court if incapacity proceedings are
commenced pursuant to 20 Pa.C.S. § 5511. I understand that
the court will appoint a guardian in accordance with my most
recent nomination except for good cause or disqualification.
In the event a court decides to appoint a guardian, I desire
the following person to be appointed:
(Insert name, address, telephone number of designated person)
( ) The appointment of a guardian of my person will not give
the guardian the power to revoke, suspend or terminate this
power of attorney.
( ) Upon appointment of a guardian, I authorize the guardian
to revoke, suspend or terminate this power of attorney.
I am making this power of attorney on the (insert day) of
(insert month), (insert year).
My signature:
(My name, address, telephone number)
Witnesses' signatures:
(Names, addresses, telephone numbers of witnesses)
If the principal making this power of attorney is unable to
sign it, another individual may sign on behalf of and at the
direction of the principal.
Signature of person signing on my behalf:
(Name, address telephone number)
§ 5834. Operation.
(a) When operative.--A mental health power of attorney shall
become operative when:
(1) A copy is provided to the attending physician.
(2) The conditions stated in the power of attorney are
met.
(b) Invalidity of specific direction.--If a specific
direction in a mental health power of attorney is held to be
invalid, the invalidity does not negate other directions in the
mental health power of attorney that can be effected without the
invalid direction.
(c) Duration.--A mental health power of attorney shall be
valid until revoked by the principal or until two years after
the date of execution. If a mental health power of attorney for
mental health treatment has been invoked and is in effect at the
specified date of expiration after its execution, the mental
health power of attorney shall remain effective until the
principal is no longer incapable.
(d) Court approval unnecessary.--A mental health care
decision made by a mental health care agent for a principal
shall be effective without court approval.
§ 5835. Appointment of mental health care agents.
(a) Successor mental health care agents.--A principal may
appoint one or more successor agents who shall serve in the
order named in the mental health power of attorney unless the
principal expressly directs to the contrary.
(b) Who may not be appointed mental health care agent.--
Unless related to the principal by blood, marriage or adoption,
a principal may not appoint any of the following to be the
mental health care agent:
(1) The principal's attending physician or other mental
health care provider or an employee of the attending
physician or other mental health care provider.
(2) An owner, operator or employee of a residential
facility in which the principal receives care.
§ 5836. Authority of mental health care agent.
(a) Extent of authority.--Except as expressly provided
otherwise in a mental health power of attorney and subject to
subsections (b) and (c), a mental health care agent may make any
mental health care decision and exercise any right and power
regarding the principal's care, custody and mental health care
treatment that the principal could have made and exercised.
(b) Powers not granted.--A mental health power of attorney
may not convey the power to relinquish parental rights or
consent to psychosurgery.
(c) Powers and duties only specifically granted.--Unless
specifically included in a mental health power of attorney, the
agent shall not have the power to consent to electroconvulsive
therapy or to experimental procedures or research.
(d) Mental health care decisions.--After consultation with
mental health care providers and after consideration of the
prognosis and acceptable alternatives regarding diagnosis,
treatments and side effects, a mental health care agent shall
make mental health care decisions in accordance with the mental
health care agent's understanding and interpretation of the
instructions given by the principal at a time when the principal
had the capacity to make and communicate mental health care
decisions. Instructions include a declaration made by the
principal and any clear written or verbal directions that cover
the situation presented. In the absence of instructions, the
mental health care agent shall make mental health care decisions
conforming with the mental health care agent's assessment of the
principal's preferences.
(e) Mental health care information.--
(1) Unless specifically provided otherwise in a mental
health power of attorney, a mental health care agent shall
have the same rights and limitations as the principal to
request, examine, copy and consent or refuse to consent to
the disclosure of mental health care information.
(2) Disclosure of mental health care information to a
mental health care agent shall not be construed to constitute
a waiver of any evidentiary privilege or right to assert
confidentiality.
(3) A mental health care provider that discloses mental
health care information to a mental health care agent in good
faith shall not be liable for the disclosure.
(4) A mental health care agent may not disclose mental
health care information regarding the principal except as is
reasonably necessary to perform the agent's obligations to
the principal or as otherwise required by law.
(f) Liability of agent.--A mental health care agent shall
not be personally liable for the costs of care and treatment of
the principal.
§ 5837. Removal of agent.
(a) Grounds for removal.--A mental health care agent may be
removed by the court for any of the following reasons:
(1) Death or incapacity.
(2) Noncompliance with a mental health power of
attorney.
(3) Physical assault or threats of harm.
(4) Coercion.
(5) Voluntary withdrawal by the agent.
(6) Divorce.
(b) Notice of voluntary withdrawal.--
(1) A mental health care agent who voluntarily withdraws
shall inform the principal.
(2) If the mental health power of attorney is in effect,
the agent shall notify providers of mental health treatment.
(c) Challenges.--Third parties may challenge the authority
of a mental health agent in the orphan's court division of the
court of common pleas.
(d) Effect of removal.--If a mental health power of attorney
provides for a substitute agent, then the substitute agent shall
assume responsibility when the agent is removed. If the power of
attorney does not provide for a substitute, then a mental health
care provider shall follow any instructions in the power of
attorney.
§ 5838. Effect of divorce.
If the spouse of a principal is designated as the principal's
mental health care agent and thereafter either spouse files an
action in divorce, the designation of the spouse as mental
health care agent shall be revoked as of the time the action is
filed unless it clearly appears from the mental health power of
attorney that the designation was intended to continue to be
effective notwithstanding the filing of an action in divorce by
either spouse.
§ 5839. Revocation.
(a) When a mental health power of attorney may be revoked.--
A mental health power of attorney may be revoked by the
principal at any time, either orally or in writing in whole or
in part, unless the principal has been found to be incapable of
making mental health treatment decisions or the principal has
been involuntarily committed.
(b) Capacity to revoke.--Notwithstanding subsection (a),
during a period of involuntary commitment pursuant to Article
III of the act of July 9, 1976 (P.L.817, No.143), known as the
Mental Health Procedures Act, a principal may revoke the mental
health power of attorney only if found to be capable of making
mental health decisions after examination by a psychiatrist and
one of the following: another psychiatrist, a psychologist, a
family physician, an attending physician or a mental health
treatment professional. Whenever possible, at least one of the
decision makers shall be a treating professional of the
declarant or principal.
(c) Effect of revocation.--A revocation shall be effective
upon communication to the attending physician or other mental
health care provider by the principal or a witness to the
revocation of the intent to revoke.
(d) Mental health record.--The attending physician or other
mental health care provider shall make the revocation or a
finding of capacity part of the mental health record of the
declarant.
(e) Reliance on mental health power of attorney.--A
physician or other mental health care provider may rely on the
effectiveness of a mental health power of attorney unless
notified of its revocation.
(f) Subsequent action by agent.--A mental health care agent
who has notice of the revocation of a mental health power of
attorney may not make or attempt to make mental health care
decisions for the principal.
§ 5840. Amendment.
While having the capacity to make mental health decisions, a
principal may amend a mental health power of attorney by a
writing executed in accordance with the provisions of section
5832 (relating to execution).
§ 5841. Relation of mental health care agent to court-
appointed guardian and other agents.
(a) Procedure.--
(1) Upon receipt of notice of a guardianship
proceeding, a provider shall notify the court and the agent
at the guardianship proceeding of the existence of a mental
health advance directive.
(2) Upon receipt of a notice of guardianship proceeding,
the agent shall inform the court of the contents of the
mental health advance directive.
(b) Accountability of mental health care agent.--
(1) If a principal who has executed a mental health
power of attorney is later adjudicated an incapacitated
person, the mental health power of attorney shall remain in
effect.
(2) The court shall give preference to allowing the
agent to continue making mental health care decisions as
provided in the mental health advance directive unless the
principal specified that the guardian has the power to
terminate, revoke or suspend the mental health power of
attorney in the advance directive.
(3) If, after thorough examination, the court grants the
powers contained in the mental health advance directive to
the guardian, the guardian shall be bound by the same
obligations as the agent would have been.
(c) Nomination of guardian of person.--In a mental health
power of attorney, a principal may nominate the guardian of the
person for the principal for consideration by the court if
incapacity proceedings for the principal's person are thereafter
commenced. If the court determines that the appointment of a
guardian is necessary, the court shall appoint in accordance
with the principal's most recent nomination except for good
cause or disqualification.
§ 5842. Duties of attending physician and mental health care
provider.
(a) Compliance with decisions of mental health care agent.--
Subject to any limitation specified in a mental health power of
attorney, an attending physician or mental health care provider
shall comply with a mental health care decision made by a mental
health care agent to the same extent as if the decision had been
made by the principal.
(b) Mental health record.--
(1) An attending physician or mental health care
provider who is given a mental health power of attorney shall
arrange for the mental health power of attorney or a copy to
be placed in the mental health record of the principal.
(2) An attending physician or mental health care
provider to whom an amendment or revocation of a mental
health power of attorney is communicated shall promptly enter
the information in the mental health record of the principal
and maintain a copy if one is furnished.
(c) Record of determination.--An attending physician who
determines that a principal is unable to make or has regained
the capacity to make mental health treatment decisions or makes
a determination that affects the authority of a mental health
care agent shall enter the determination in the mental health
record of the principal and, if possible, promptly inform the
principal and any mental health care agent of the determination.
§ 5843. Construction.
(a) General rule.--Nothing in this subchapter shall be
construed to:
(1) Affect the requirements of other laws of this
Commonwealth regarding consent to observation, diagnosis,
treatment or hospitalization for a mental illness.
(2) Authorize a mental health care agent to consent to
any mental health care prohibited by the laws of this
Commonwealth.
(3) Affect the laws of this Commonwealth regarding any
of the following:
(i) The standard of care of a mental health care
provider required in the administration of mental health
care or the clinical decision-making authority of the
mental health care provider.
(ii) When consent is required for mental health
care.
(iii) Informed consent for mental health care.
(4) Affect the ability to admit a person to a mental
health facility under the voluntary and involuntary
commitment provisions of the act of July 9, 1976 (P.L.817,
No.143), known as the Mental Health Procedures Act.
(b) Disclosure.--
(1) The disclosure requirements of section 5836(e)
(relating to authority of mental health care agent) shall
supersede any provision in any other State statute or
regulation that requires a principal to consent to disclosure
or which otherwise conflicts with section 5836(e), including,
but not limited to, the following:
(i) The act of April 14, 1972 (P.L.221, No.63),
known as the Pennsylvania Drug and Alcohol Abuse Control
Act.
(ii) Section 111 of the act of July 9, 1976
(P.L.817, No.143), known as the Mental Health Procedures
Act.
(iii) The act of October 5, 1978 (P.L.1109, No.261),
known as the Osteopathic Medical Practice Act.
(iv) Section 41 of the act of December 20, 1985
(P.L.457, No.112), known as the Medical Practice Act of
1985.
(v) The act of November 29, 1990 (P.L.585, No.148),
known as the Confidentiality of HIV-Related Information
Act.
(2) The disclosure requirements under section 5836(e)
shall not apply to the extent that the disclosure would be
prohibited by Federal law and implementing regulations.
(c) Notice and acknowledgment requirements.--The notice and
acknowledgment requirements of section 5601(c) and (d) (relating
to general provisions) shall not apply to a power of attorney
that provides exclusively for mental health care decision
making.
(d) Legal remedies.--An interested party may file a petition
seeking a determination that following the directions in the
declaration or the mental health power of attorney may cause
potential irreparable harm or death. In that event, the court
may invalidate some or all of the provisions and issue orders
appropriate to the circumstances authorizing treatment. The
courts shall issue an order within 72 hours from the filing of
the petition.
§ 5844. Conflicting provisions.
If a provision of a mental health power of attorney conflicts
with:
(1) The provision of another mental health power of
attorney or with a provision of a declaration, the provision
of the instrument latest in date of execution shall prevail
to the extent of the conflict.
(2) A power of attorney, the provision in the mental
health power of attorney shall prevail to the extent of the
conflict regardless of the date of execution.
§ 5845. Validity.
This subchapter shall not be construed to limit the validity
of a health care power of attorney executed prior to the
effective date of this subchapter. A mental health power of
attorney executed in another state or jurisdiction and in
conformity with the laws of that state or jurisdiction shall be
considered valid in this Commonwealth, except to the extent that
the mental health power of attorney executed in another state or
jurisdiction would allow a mental health care agent to make a
mental health care decision inconsistent with the laws of this
Commonwealth.
Section 2. Section 7203(d) of Title 20 is amended to read:
§ 7203. Prudent investor rule.
* * *
(d) Requirements for charitable trusts [holding a
controlling interest in] having voting control of certain
publicly traded business corporations.--
(1) Notwithstanding any other legal requirement or
process which may include court review of the activities of a
charitable trust, a fiduciary for a charitable trust with a
majority of its beneficiaries at a principal location within
this Commonwealth [holding a controlling interest in] having
voting control of a publicly traded business corporation
received as an asset from the settlor shall not consummate
any [investment or management decision executing a change in
the trust's] transaction, or vote to permit consummation of
or otherwise act to consummate any transaction, which would
result in the trust no longer having voting control of that
corporation, by sale, merger, consolidation or otherwise,
without:
(i) serving notice upon the Attorney General at
least 60 days prior to [executing] the [change in
control] consummation of the transaction; and
(ii) directing that at least 30 days' prior notice
of the [execution of the change in control] consummation
of the transaction be provided by the publicly traded
business corporation controlled by the trust to employees
of [the publicly traded business] that corporation [held
by the trust] who are located in this Commonwealth.
(2) In addition to any other power or duty provided by
law, the Attorney General also has the power to [obtain] seek
judicial review pursuant to this subsection from the court
having jurisdiction over the trust if the Attorney General
concludes that the [fiduciary should be prevented from
executing such a change in control.] consummation of a
transaction described in paragraph (1) is unnecessary for the
future economic viability of the corporation and would
constitute a failure to comply with the provisions of
subsection (c) or an impairment of the charitable purpose of
the trust.
(3) In [obtaining judicial approval] a judicial
proceeding commenced by the Attorney General under this
subsection, the [fiduciary] Attorney General must prove by
[clear and convincing] a preponderance of the evidence that
[executing the change in the trust's] consummation of a
transaction which would result in the charitable trust no
longer having voting control of the corporation [is necessary
to maintain the economic viability of the corporation and
prevent a significant diminution of trust assets or to avoid]
is unnecessary for the future economic viability of the
corporation and must be prevented in order to avoid
noncompliance with the provisions of subsection (c) or an
impairment of the charitable purpose of the trust.
(3.1) If a fiduciary provides the notice under paragraph
(1)(i), the following apply:
(i) Except as set forth in subparagraph (ii), upon
expiration of the notice period under paragraph (1)(i),
the fiduciary may:
(A) vote to permit consummation of a transaction
described in paragraph (1); or
(B) otherwise act to consummate the transaction
described in paragraph (1).
(ii) The fiduciary has no authority under
subparagraph (i) if the Attorney General has, within 30
days of receiving the notice under paragraph (1)(i),
commenced a judicial proceeding under paragraph (2).
(iii) If the fiduciary is enjoined in a judicial
proceeding under subparagraph (ii), the fiduciary shall
not have authority under subparagraph (i)(A) or (B)
unless the injunction is dissolved by:
(A) stipulation of the fiduciary and the
Attorney General; or
(B) an order of a court of competent
jurisdiction which is not subject to further judicial
review as of right.
(4) In the event court approval to consummate a
transaction described in paragraph (1) is obtained pursuant
to this subsection, the court shall ensure that the
provisions of 15 Pa.C.S. Ch. 25 Subchs. I (relating to
severance compensation for employees terminated following
certain control-share acquisitions) and J (relating to
business combination transactions - labor contracts) apply to
the [execution of a change in the trust's control effectuated
by the fiduciary of a charitable trust with beneficiaries at
a principal location within this Commonwealth holding a
controlling interest in a publicly traded] business
corporation [received as an asset from the settlor.]
described in paragraph (1) upon the consummation of the
transaction.
(5) A fiduciary of a charitable trust with a majority of
its beneficiaries at a principal location within this
Commonwealth [holding a controlling interest in] having
voting control of a publicly traded business corporation
received as an asset from the settlor shall not be subject to
liability for the commercially reasonable sale of certain
shares of the corporation not necessary to maintain voting
control and for which no control premium is realized if the
fiduciary reasonably determined that such sale was authorized
in a manner consistent with the requirements of this section
and other applicable provisions of this title.
(6) The requirements of this subsection shall not apply
to a noncharitable trust, including a noncharitable trust
with a charitable remainder and a charitable trust which
reverts to noncharitable purposes.
(7) As used in this subsection, the term "voting
control" means a majority of the voting power of the
outstanding shares of stock entitled to vote on the election
of directors.
Section 3. Section 4 of the act of November 6, 2002
(P.L.1101, No.133), entitled "An act amending Title 20
(Decedents, Estates and Fiduciaries) of the Pennsylvania
Consolidated Statutes, further providing for the prudent
investor rule; codifying existing law setting forth the
applicability of provisions relating to diversification; and
making a repeal," is repealed.
Section 4. The provisions of this act are severable. If any
provision of this act or its application to any person or
circumstance is held invalid, the invalidity shall not affect
other provisions or applications of this act which can be given
effect without the invalid provision or application.
Section 5. This act shall take effect as follows:
(1) The following provisions shall take effect
immediately:
(i) the amendment of 20 Pa.C.S. § 7203(d).
(ii) Section 3 of this act.
(iii) This section.
(2) The remainder of this act shall take effect in 60
days.
APPROVED--The 30th day of November, A. D. 2004.
EDWARD G. RENDELL
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