The Advance Health Care Directive
A complete estate plan consists of three core documents: (1) a Revocable Living Trust (or a Will in certain limited circumstances); (2) a Durable Power of Attorney; and (3) an Advance Health Care Directive. In this article I will focus on the third document.
An Advance Health Care Directive is a written document in which one person (the principal) designates another person (the agent) to make medical decisions on the principal’s behalf when the principal is unable to make medical decisions for him or herself. The principal may also predetermine which decisions should be made in certain medical situations. The Advance Health Care Directive thus serves two distinct purposes: (1) appointing an agent, and (2) expressing your desires concerning the medical treatment you would prefer under given medical circumstances.
Under California law, as long as you are able to give informed consent concerning your health care decisions, you may of course make your own decisions. The problem arises when you lack the capacity to understand the nature and consequences of a particular decision or are unable to communicate your decision. If you lack capacity to make decisions for yourself, decision-making authority is given in the following order of priority: (1) an agent you verbally designated during a hospitalization; (2) an agent you designated in an Advance Health Care Directive; (3) a court-appointed conservator; or (4) a close family member. In most circumstances, the decision-making authority rests with a close family member because advance planning has not been done and the circumstances do not warrant court involvement. In this case, the treating physician has discretion in determining who will speak for you. The doctor will consider (1) the relationship involved (for adults, spouses are generally given first priority; for minors or unmarried adults, parents are generally given first priority), (2) who is most familiar with your values and medical desires, (3) who would be most affected by the course of treatment selected, and (4) who has expressed a concern or interest in your welfare. The situation may get complicated where a doctor is not comfortable relying on the instructions of a spouse or relative for various reasons. You might recall a court case highlighted in the media a few years ago which involved a fight between a woman’s husband and her parents regarding whether life support would be terminated.
Through estate planning you can avoid any uncertainty regarding what your wishes are and who will make health care decisions for you in a medical emergency. You should take the time now to select someone who understands your desires and who you trust to exercise discretion in a manner that would be satisfactory to you. © 2012 by Marlene S. Cooper. All rights reserved.