Published February 24, 2022
What Is an Advance Health Care Directive?
Also called a “power of attorney for healthcare”, an Advance Health Care Directive is a document, signed by you in the presence of witnesses or a notary public, that lists your wishes for healthcare and names an individual to act on your behalf should you become incapacitated.
Life is unpredictable. If you experience a medical emergency or are unable to communicate your wishes for healthcare to your healthcare provider, your family members may have to petition a court in conservatorship proceedings in order to help you. Conservatorship is an expensive, time-consuming, and court-controlled process. Appropriate estate planning, including executing aproperty drafted Advance Health Care Directive, could help avoid conservatorship.
Consider the well-publicized and tragic case of Terry Schiavo. Then 26-year-old Ms. Schiavo fell unconscious in her Florida apartment and never regained consciousness. She was hospitalized and given artificial nutrition and hydration. Since Ms. Schiavo did not have an Advance Health Care Directive, her husband petitioned a court to be appointed as Florida’s equivalent of her conservator. Additionally, since Ms. Schiavo had never written down her wishes for healthcare, a long, expensive, and acrimonious court battle took place between the parents and husband of Ms. Schiavo. At the center of the court fight was what kind of medical treatment Ms. Schiavo would have wanted under the circumstances. All of these legal battles could likely have been avoided if Ms. Schiavo had executed an Advance Health Care Directive.
Naming an Agent for Health Care
In your Advance Health Care Directive you name at least one individual to be your “agent” to make health care decisions for you if you are unable to make and communicate those decisions yourself. Often married couples will name their spouse as their primary agent, or sometimes an adult child. You can also name alternate agents in case your primary agent is unable or unwilling to act at the time needed. The agent’s authority can be made effective immediately upon your signing of the document or at a future time (e.g., at your incapacity).
Your Wishes for Health Care
You can also give direction as to your wishes for health care in the Advance Health Care Directive. For those who wish to prolong their life regardless of their condition, language such as the following is used: “I wish to have my life prolonged to the greatestpossible extent without regard for my physical or mental condition, chance of recovery, likelihood of suffering, or expense.”
Alternatively, those who do not wish to have their life prolonged if they have an incurable illness often choose the following language:
“If I have an incurable or irreversible physical or mental condition, even if I am not in a persistent vegetative state or some other form of permanent unconsciousness, I want care and treatment that will enable me to take part in activities of daily living, to eat and drink, and to communicate meaningfully with others. I want to live my life with dignity and for my loved ones to have pleasant memories of my final days. Thus, I wish to be allowed to die without prolonging my death with medical treatment that will not benefit me.”
The California Probate Code provides for a statutory Advance Health Care Directive that can be found here. Some hospitals, HMOs, and doctors’ offices also provide Advance Health Care Directives for their patients.
Allred Law provides customized Advance Health Care Directives for clients as standalone documents or as part of a bundled estate plan package. Contact us to find out more.
Disclaimer: This article is intended to provide general information about Advance Health Care Directives under California law and should not be relied upon as a substitute for legal advice about your particular situation from a qualified attorney. Reading this article does not create an attorney-client relationship. Unless and until a formal attorney-client contract/legal services agreement is signed by both you and Allred Law we do not represent you as your attorney.