You are likely accustomed to making healthcare related decisions for yourself and you probably assume you will always be able to make those decisions. What happens, however, if you are in a position where you are unable to make your own healthcare decisions? Is there someone specific you would want to make decisions for you? You may also have strong opinions about end-of-life medical treatment that you want honored by healthcare personnel at the end of your own life. Once again though, what happens if you are unable to convey those opinions when the time comes? Let’s see how an Advance Directive can help and how it might fit into your estate plan.
What Is an Advance Directive?
An advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. Because advance directives are predominantly governed by state law, the type of advance directives that are recognized, the decisions that can be made, and the language necessary to create an advance directive can vary slightly from state to state.
Advanced Directives vs. Power of Attorney
Most states recognize a type of advance directive that is similar to a power of attorney in that it gives someone the legal authority to make decisions for you. In fact, a common estate planning mistake is assuming that a durable power of attorney acts just like an advanced directive. This causes some people to operate on the assumption that there is no need to execute an advance directive; however, that assumption is incorrect. Even a general durable power of attorney has some limits in most states and the most common limitation is the right of the Agent to make healthcare decisions for the Principal. To grant someone that type of authority you usually need to execute an advance directive.
California Advance Directives
California recognizes two basic types of advance directives, a Power of Attorney for Health Care and Instructions for Health Care. They are both part of California’s statutorily created Advance Health Care Directive (AHCD) Specifically, these advance directives allow you to do the following:
- Power of Attorney for Health Care — This part of the AHCD lets you name someone (your “Agent”) to make decisions about your health care. Unless otherwise written in your advance directive, your power of attorney for health care becomes effective when your primary doctor determines that you lack the ability to understand the nature and consequences of your health care decisions or the ability to make and communicate your, health care decisions. If you want your agent to make health care decisions for you now, even though you are still capable of making health care decisions, you can include this instruction in your power of attorney for health care designation. You can also name an alternate Agent. Unless you limit your Agent’s authority, your agent may make all health care decisions for you, including:
- Consenting or refusing consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
- Selecting or discharging health care providers and institutions.
- Approving or disapproving diagnostic tests, surgical procedures, and programs of medication.
- Directing the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
- Making anatomical gifts, authorize an autopsy, and direct disposition of remains.
- Individual Instructions – this part of the AHCD is California’s version of a “Living Will.” It allows you to give specific instructions about any aspect of your health care, such as your wishes with regard to the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief.
Please download our FREE estate planning checklist. If you have additional questions or concerns about executing an advance directive, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.