No one likes to think of their own mortality – or the possibility that one day, they may not be able to make decisions for themselves. Yet the rate of disability in the United States is incredibly high, with an estimated 1 in 4 Americans currently living with a physical, cognitive, and/or mental health disability. Even if you are currently in perfect health, there is still a strong possibility of becoming disabled at some point in the future, whether through an accident, illness, or simply the aging process.
For this reason, it is always a good idea to put together a plan in the event that you become incapacitated. One of the most important documents to have in place is an Advance Health Care Directive (ACHD). This document gives a designated agent the authority to make medical decisions on your behalf if you are unable to do so. It also allows you to make decisions about the type of health care that you want if you are incapacitated.
At Daryl Reese Law, we offer a variety of estate planning services for Californians. Our legal team works collaboratively with clients to determine their needs, and to help them come up with an estate plan that ensures that their wishes are followed. To learn more about how we can help you with a comprehensive estate plan – including an advance health care directive – reach out to our law office to schedule a consultation.
What Is an Advance Health Care Directive?
An Advance Health Care Directive is a legal document that offers a way for individuals to ensure that their wishes are followed with regards to medical treatment in the event that they become incapacitated. With an AHCD, you can name a trusted person to make healthcare decisions on your behalf if you are unable to make those decisions for yourself. This same document can specify what type of treatments and end of life care you want.
There are four parts to an AHCD. The first section allows you to name another person as an agent to make healthcare decisions on your behalf if you are unable to do so or if you want them to make decisions for you even if you are capable of doing so. In this section, you can also name an alternative agent.
Unless you specifically limit the agent’s authority, they may make all healthcare decisions for you. This may include consenting or refusing to any treatment, selecting or discharging health care providers, approving or denying tests, procedures, and medications, and making end of life decisions on your behalf.
The second part of an AHCD allows you to provide specific instructions about your healthcare, regardless of whether or not you appoint an agent. This may include things such as if you want artificial hydration and/or nutrition, pain relief, and if you want to be kept alive in the event that doctors determine that you are in a permanent vegatative state.
The third part of an AHCD allows you to make end of life decisions, including whether you want to donate your organs or other tissues following your death. Finally, the fourth part of the form allows you to designate a primary care physician. These two parts are optional.
In California, Advance Health Care Directives are authorized by the Health Care Decisions Act. There are statutory forms available from a number of sources. To be valid, the AHCD must be witnessed, and in certain circumstances, notarized. You can also register the completed form with the state, although doing so is voluntary.
Why Should I Have a California AHCD?
If you’re in good health, you may not see the point of having an Advance Health Care Directive. After all, if you aren’t sick and are relatively young, you should be able to make your own healthcare decisions – right?
Unfortunately, any of us can become incapacitated at any time. Having an AHCD can protect you if the worst case scenario happens and you are hurt or become sick. There are a number of reasons why it makes sense to get an AHCD in place, regardless of your current health status or age. First, and perhaps most importantly, an AHCD ensures that your wishes are followed if you can’t make decisions for yourself. This includes making decisions in advance about the type of care that you want and choosing who you would want to make treatment decisions for you.
Designating a health care agent is particularly important, as it allows you to pick someone you trust to make decisions on your behalf. This can empower your loved ones to make difficult decisions. It can also minimize conflict during an emotional time.Having an AHCD can also help your family and friends avoid costly legal battles. If you don’t have an Advance Health Care Directive in place and cannot give consent to a medical procedure, then your relatives will have to go to court to get permission to do so. This can cost money and take time – which is the last thing that anyone wants or needs when facing a medical crisis.
There are very few drawbacks to having an Advance Health Care Directive. They are relatively low cost (or even free) to obtain, and can protect both you and your loved ones if something unexpected happens. Ultimately, there aren’t any good reasons to NOT have an AHCD – and plenty of good reasons to have one.
Steps in Drafting an AHCD
If you want to set up an AHCD, there are a few things that you should do before getting started. First, and perhaps most importantly, you should familiarize yourself with the terms that are used in the document. This includes:
- Healthcare agent: the person who is responsible for making healthcare decisions should you lose the ability to make these decisions for yourself.
- Conservator: a person who may be appointed by a court to oversee your affairs and make treatment decisions if you are determined by the court to be unable to do so yourself.
- Capacity: your ability to understand, make and communicate your healthcare decisions.
- Competency: a legal status imposed by a court that is sometimes used interchangeably with capacity (although the two terms are distinct).
- Duration: in California there is no automatic time limit on an Advance Directive unless you specify a date for your document to expire.
- Revocability: you have the right under the law to say all or any part of your Advance Directive is no longer binding.
- Liability: health care providers can be sued if they are found to have failed to follow an Advance Health Care Directive, unless they followed the AHCD in good faith (immunity).
- Life-sustaining treatment: treatments that replace or support an essential bodily function.
- Palliative care: a comprehensive approach to treating serious illness that focuses on the physical, spiritual, psychological and existential needs of the patient to achieve the best quality of life possible by reducing pain and other symptoms.
- Artificial nutrition and hydration: a supplement or replacement of ordinary eating and drinking through a mixture of nutrients and fluids through a tube placed in a vein, the stomach, or upper intestines.
- Withholding or withdrawing treatment: forgoing or discontinuing life-sustaining measures.
- Persistent vegetative state: the term used to describe a human being whose ability to function has been severely reduced, who is being kept alive on machines
- Anatomical gift: the donation of all or part of your body for medical or scientific purposes after you have died.
Once you have a better understanding of these and other terms commonly used in Advance Health Care Directives, the next step is to make decisions about what you want for yourself. This includes choosing a healthcare agent and deciding on what treatments you want.
Depending on your situation, you may want to discuss your plans with a loved one before making your AHCD. You should also talk to the person that you want to serve as your agent to make sure that they are comfortable with the role. Finally, you should draft your AHCD – ideally with the help of an estate planning attorney – and inform key people of your preferences.
What Steps Do I Have to Take to Ensure that My AHCD Is Valid?
In California, there are several requirements that must be met in order to have a valid Advance Health Care Directive. As an initial matter, you must have legal capacity to make these designations and decisions for yourself. If you wait until you are incapacitated, then your AHCD will not be valid.
Once you have completed the form or had an attorney draft an AHCD for you, you will need to sign it. Next, the AHCD must either be signed by two qualified witnesses (neither of whom can be the agent or a healthcare provider) OR notarized. You do not need to have the document notarized if you have two impartial witnesses. If you currently reside in a skilled nursing facility, then a patient advocate or ombudsman must also serve as a witness.
Finally, you can register your AHCD with the state. Doing so costs $10, and is completely optional. Registration has the benefit of allowing healthcare providers and other authorized individuals to obtain your AHCD in the event of an emergency or if they cannot otherwise get a copy.
Who Should Get a Copy of My Advance Health Care Directive?
Ideally, your Advance Health Care Directive should be provided to the person you designated as your agent, as well as any alternative agents. Your treating physician and other healthcare providers should also receive a copy of the AHCD. In addition, you can give a copy of the directive to other loved ones, such as your romantic partner, adult children, parents, or siblings.
If you register your AHCD with the state, then there is a special process by which authorized individuals may be able to obtain a copy. This might be a good idea if you have any concerns about your healthcare providers or a facility not having your AHCD during an emergency.
When Is the Best Time to Draft an AHCD?
The best time to have an AHCD is right now. It does not matter if you are in good health or even if you are 22 and freshly graduated from college. If you have capacity to do so, you should make an Advance Health Care Directive.
Having an AHCD ensures that your wishes will be followed in the event that you get sick or are hurt in an accident. If you wait, then it may be too late to get one – and your loved ones will be forced to take more expensive, time-consuming steps to make medical decisions on your behalf. An AHCD is an essential part of any estate plan, and is something that everyone should have.
What Is the Difference Between an AHCD and a DNR?
A Do Not Resuscitate (DNR) order is another legal document that people may use when making end-of-life decisions. While many people confuse the two, there are significant differences between an AHCD and a DNR.
The first difference is when each document is created. An AHCD is created and signed in advance of any illness or injury. By contrast, a DNR is written when a person is terminally ill.
Second, an AHCD is written by an individual and/or their estate planning lawyer. A DNR is written by a physician at the request of a patient and/or their family. A DNR is not valid unless signed by a licensed doctor.
Third, the purpose of each document is different. An AHCD is designed to allow an individual to designate an agent and make healthcare decisions before they are incapacitated. A DNR is written when a person is gravely ill, and it instructs healthcare providers to not attempt cardiopulmonary resuscitation (CPR) in the event of cardiac or respiratory arrest. In other words, its goal is to not prolong life and to allow a person to die peacefully when they have reached the end stage of their life.
While everyone should have an AHCD, a DNR is typically only required in limited situations. DNR orders are most often issued for elderly or very ill patients who are unlikely to survive long-term even if CPR is performed during an emergency.
Do I Need a Lawyer to Draft an Advance Health Care Directive?
You are not required to use an attorney when drafting an Advance Health Care Directive. There are numerous statutory forms available online that can be downloaded and completed. However, there are a number of good reasons to work with a lawyer rather than attempting to do it yourself.
While statutory forms are a good start for many people, they are not intended to address all situations. A lawyer can listen to your story to understand your goals, and help you craft an individualized AHCD that truly meets your needs. They can also help you understand each part of the form, including the medical and legal terms, and how your choices may affect your care. They can also suggest solutions for complicated family dynamics.
At the same time, an estate planning attorney will help you develop a strategy for your future that addresses more than your healthcare decisions. This includes many things that you may not have considered, such as how your bills will be paid or who will manage your assets if you are incapacitated. They can also help you with a comprehensive estate plan that is designed to protect your interests, minimize taxes, and achieve other goals, such as reducing conflict among your heirs or providing for a child with special needs. An estate plan may include a number of interrelated documents, including:
- An Advance Health Care Directive
- A Financial Power of Attorney
- A Durable Power of Attorney
- A Revocable Living Trust
- One or more Trusts
- Guardianship designations
- Last Will and Testament
An estate planning attorney can take all aspects of your life and financial situation into consideration. While a one-size-fits-all statutory form might be more cost-effective in the short-term, it can often be more expensive over time. As such, it is always a good idea to consult with a lawyer before making any decisions about an AHCD or other estate planning document.
How Our Law Firm Can Help
An Advance Health Care Directive is a critical document for every Californian to have. By investing a bit of time and money in an AHCD now, you can avoid conflict and expensive legal battles in the future. It is also a good way to make sure that your wishes are followed when you are unable to make decisions for yourself.
Based in Santa Rosa, Daryl Reese Law represents individuals and families throughout California. We take a thorough approach to estate planning, working with our clients to help them achieve their goals. To learn more or to schedule a consultation with a California estate planning lawyer, give us a call at (707) 858-5000 or fill out our online contact form.