Chris Jones

In 2000, the California legislature passed the Health Care Decisions Law which allows an individual to create an Advance Health Care Directive. This document is a type of power of attorney in which a person grants authority to another individual to act on their behalf in making health care decisions.

advantages:

As with all estate planning documents, the law has a default set of rules for those individuals who do not create a directive.  For an adult who lacks the capacity to make decisions for themselves, for example, if they are unconscious or unable to communicate, the rules require that the courts become involved through conservatorship proceedings: a costly and time-consuming process.  The advantages of health care directives are many: they are private, low-cost, allow an individual to maintain control over personal decisions by nominating their own choice of agent and do not require court supervision.

how it works:

The person creating the Directive signs a written form which, among other things, appoints an individual to act as their agent.  Unless the form provides otherwise, this appointment applies only to health care decisions when the person who created it lacks the capacity to make decisions for himself.  Until that point, the individual who creates the form continues to make their own decisions about their personal care.

The individual who is appointed may not be an employee of a health care provider or care facility actually giving benefits to the person creating the form. As stated below, the agent can have authority over a number of items without the need to involve the courts.  By presenting the form to health care providers, the agents may act immediately and without interference.

what it can do:

Besides appointing an individual to make health care decisions, an Advance Directive can also provide the following:

Nomination of Conservator: In the event that an individual is in need of a conservator of their person, the Advance Directive typically appoints the same agent to act as conservator of their person, making decisions relating to their personal care, such as where they live, their meals, hiring aides and arranging social and recreational activities.

Post Death Arrangements: The health care agent is the one who has authority to order an autopsy, make anatomical gifts, and arrangements for disposition of remains, including funeral services.

Advance Directive: Besides appointing an agent, the principal has the opportunity to state their wishes regarding the withholding or withdrawal of treatment to keep a person alive as well as the provision of pain relief. This could include either providing for or withdrawing of artificial nutrition and hydration and all other forms of health care, including cardio-pulmonary resuscitation.

WHAT IT is not:

An Advance Health Care Directive does not supercede emergency health care. It is not a “Do Not Resuscitate” Order. That form may be obtained through your doctor’s office and requires the signature of your doctor for it to be effective. An Advance Directive also does not authorize assisted suicide.

Conflicts arise within families regarding the withholding of life support, or the costs of on-going health care and treatment. By creating an Advance Health Care Directive, an individual provides a clear chain of command for making such decisions, nominates the individual(s) that they trust most to do the right thing and avoids the conflicts that naturally arise. Do yourself and your loved ones a favor, both prepare and sign an Advance Directive and have conversations with your agent(s) about your preferences, wishes and goals.

- The Estate Planning Team
  Rogers Sheffield & Campbell, LLP

 

This article is not intended to provide legal advice. For legal advice on any of the information in this post, please use the form to the right or contact us by phone at 805-963-9721.

 

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