Articles

An Introduction to Advance Health Care Directives

August 20, 2009

This article appears in the August 2009 issue of the Merced County Legal Professionals Association Newsletter, authored by Alan Niebel, Berliner Cohen attorney.

If you are unable to make health care decisions on your own, who will make those critical decisions on your behalf?  Are there medical procedures you do not wish to receive? Alternatively, are there medical procedures which you wish to be made available to you?

Several years ago, the Terri Schiavo case brought this issue into the national spotlight.  Regardless of your personal opinion of the court’s ruling and as heart wrenching as the case was for the family involved, the Schiavo case had at least one positive outcome – it generated a great deal of discussion among millions of Americans regarding a very serious and very personal issue.

If you are like the majority of Americans, you have likely thought about these questions (in one form or another) and have developed a general opinion on the matter.  Unfortunately, while the majority of people have an opinion as to what type of medical treatments they would like to receive in various circumstances, it is estimated that less than 25% of them have actually taken any steps to ensure their wishes are carried out.

Unless you have a written document memorializing your wishes, there is no way to ensure your wishes will be known, let alone followed.  In California, an Advance Health Care Directive (“AHCD”) is the legal document which allows you to memorialize your health care wishes.

What Is an AHCD? 
An AHCD is a legal document which allows you to: (1) appoint a person to make health care decisions on your behalf (an “agent”) and (2) provide personalized health care instructions. 

The generic term for the AHCD is a “living will.”  You may have also heard of the California Natural Death Act Declaration (“CNDAD”) or a Durable Power of Attorney for Health Care (“DPAHC”).  The CNDAD and DPAHC have been replaced by the AHCD.  The AHCD is a broader, more comprehensive document than either the CNDAD or the DPAHC.

Any California resident, who is at least eighteen years old, of sound mind, and acting of his or her own volition can execute an AHCD. 
The document may be effective immediately or it may become effective upon the happening of a certain event in the future (i.e., if you lose capacity).  The choice is up to you.

Who Can Be My agent?
Any adult may be nominated as your agent.  While you may name two or more “co-agents”, it is not advisable to do so.  The agent is often called on to act in very stressful situations and the likelihood of conflict rises exponentially when there is more than one agent involved. 
That being said, you may nominate one or more alternates to act in the event the primary agent is unable or unwilling to do so.  If possible, it is advisable to name at least one alternate agent.
 
Before you nominate an agent, be sure to discuss the position as well as your specific health care wishes with the person to ensure that he or she is willing to act on your behalf.  The position comes with a significant amount of responsibility and the person you intend to nominate as your agent may or may not be willing to act on your behalf.

With this in mind, you also want to be sure that the person you nominate is someone who lives in close proximity to you (i.e., you do not necessarily want to nominate your cousin who resides out of state to be your agent) and is someone who is strong enough to carry out your wishes.

Health Care Instructions
You may provide your agent with total discretion to make decisions on your behalf.  Alternatively, you may provide specific instructions as to the types of health care treatments you wish (or do not wish) to receive.

The instructions you provide should not be taken lightly.  The AHCD is a powerful document which has significant consequences.  Be sure to consider your choices carefully as well as the variety of situations in which they might apply.

General Thoughts
The AHCD is an extremely flexible document and provides you with a great deal of control over your health care choices.  You are free to revoke or amend your AHCD as long as you have the capacity to do so. 

Generic AHCD forms are publicly available (see Prob. C §4701).  However, an individualized AHCD may be obtained from your estate planning attorney, personal physician or other private sources.  It is advisable to discuss the AHCD with your personal physician and your estate planning attorney before executing it.  As with any legal document, do not execute the AHCD unless you understand what you are signing. 

Once executed, you should provide copies of the AHCD to your primary and alternate agents and discuss the document with your family members to ensure they are aware of your wishes.

Limitations
This article presents only a brief introduction to the AHCD as it relates to your individual health care decisions.  Other health care-related documents such as Do Not Resuscitate Orders and Physician Orders for Life Sustaining Treatment exist, but are well beyond the scope of this article. 

You must also be aware of the fact that the AHCD represents just one part of a comprehensive estate plan.  The powers granted under your AHCD are specifically limited to your health care concerns.  It does not address the multitude of personal and financial issues which also arise when an individual loses capacity.  Only a qualified estate planning attorney can provide you with a comprehensive estate plan.

Although this area of law is constantly evolving, planning for the needs of individuals continues to be the central focus of the law.  When incorporated into a comprehensive estate plan, the AHCD can provide a tremendous benefit not only to you, but to your family as well.

Summary
The AHCD is an excellent document for memorializing your health care wishes and appointing an agent to carry out those health care wishes in the event you are unable to do so.  While no one ever wants to be in the situation where an AHCD is needed, I can assure you that if the situation arises where you lose capacity, you (and your family) will be benefit if you have an AHCD in place.  This is truly a situation where a little bit of planning goes a long way.

####

Allan Niebel’s practice focuses on estate planning, probate and trust administration, asset transfers, tax and real property issues.  He comes to Berliner Cohen from a San Francisco law firm where he assisted clients in a broad range of estate planning and tax-related services.  He also served as a judicial extern to The Honorable Marshall Whitley, Superior Court of California Probate Court, and as a law clerk in the Tax Division of the United States Attorney’s Office in San Francisco.

©2009 Berliner Cohen.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.  Attorneys in the Berliner Cohen Estate Planning Group will be pleased to provide further information regarding the matters discussed in this article.