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Marlene Cooper Law

Life and Death Issues

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 to make medical decisions for you if you are unable to speak for yourself, and (2) expressing your desires concerning the medical treatment you would prefer under given medical circumstances. The Advance Health Care Directive does not address the handling of financial or property matters — only issues related to one’s health care.

Under California law as it now stands, if a person has not executed an Advance Health Directive, a treating physician will defer to the wishes of the closest family members concerning whether or not to prolong life. Court action may be warranted if the family members do not agree or if the doctor is not comfortable relying on the instructions of a spouse or relative for various reasons. It is now being proposed that the law be changed regarding persons who have not executed an Advance Health Care Directive. Under proposed legislation, the person will be kept alive so long as it is medically possible without regard to the degree of pain experienced, depletion of financial resources, prolonging the anguish of loved ones or an imbalance between the risks and burdens of a proposed treatment versus the expected benefits. As a matter of course, medical providers are now asking patients if they have executed an Advance Health Care Directive in advance of any hospitalizations because of the difficulty of addressing life and death situations.

Many people are more concerned with “quality of life” and “dying with dignity” rather than length of days at any cost. In recent years the national news was dominated by the case involving a woman named Terry Schaivo. Ms. Schaivo had an incurable illness which left her unable to meaningfully interact with others or her environment. Her husband and parents fought each other all the way to the Supreme Court over whether life support would be terminated for the woman. The “life support” at issue was a tube through which the woman received nutrition and hydration (food and water). A substantial controversy developed as to whether such a tube should be considered life support. After all, what is more natural than food and water?

Through the Advance Health Care Directive, one can address the issue of what methods are permissible to prolong life, as well what to do given medical conditions such as coma and Alzheimer’s disease. It can also address issues such as organ donation, autopsy and cremation. 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. © 2012 by Marlene S. Cooper. All rights reserved.

Marlene Cooper Law