The Advance Healthcare Directive is a legal instrument in California which allows you to appoint an agent to make medical decisions on your behalf when you are no longer able to do so for yourself. Some states in the U.S. refer to this as your “medical power of attorney.”
California’s Advance Healthcare Directive breaks down into five simple steps:
1. Appoint an agent
2. Provide instructions for your medical care
3. Decide on organ and tissue donation
4. Designate a physician
5. Sign before a notary or two witnesses
I discuss each of these in turn below.
#1 – Appoint an Agent in Your Advance Healthcare Directive
The Concept of “Principal and Agent” – Give a person you trust legal power over your medical decisions
The law allows a person to entrust her legal decisions to another person to act on her behalf. This is called a “principal” giving power to an “agent.”
In your Advance Healthcare Directive, you can appoint an agent to make medical decisions on your behalf, as well as set up alternative agents in case the initial agent is unwilling or unable to serve when the time is needed.
Scope of Agent Authority – You can choose how much power you give your agent
You do not have to give your agent unlimited powers, but can specifically indicate which types of decisions your agent is allowed to make. If you so choose, you can even appoint one agent to make certain decisions, and a separate agent to make others.
The Advance Healthcare Directive will also allow you to decide when those powers are given. You can make them effective now, or you can also have them kick in at a future date ( a “springing” power), such as when your primary physician makes the determination you are unable to make your own healthcare decisions.
If you aren’t interested in spelling out every type of decision your agent should make, you can simply give the person you trust the power to make decisions “in your best interest” – whatever that may look like. This type of authority is best given to an agent who knows you very well, and whom you trust will make the best possible decisions about your healthcare in the event you are unable.
Conservator
A conservator is someone appointed by either you or the court to make legal decisions on your behalf in the event you become “incapacitated,” which means you lack the mental ability to make legal decisions for yourself.
Incapacitation most frequently occurs as your body begins to age and your mind begins to suffer from dementia, or other diseases such as Alzheimer’s. Incapacitation can also occur if you suffer an injury to the head that does not end your life but renders you unconscious.
There are two types of conservatorships – you can appoint a conservator over your person (your physical body), and you can appoint a conservator over your estate (your assets). The Advance Healthcare Directive designates an agent to serve as conservator over your person.
#2 – Provide Instructions for Your Medical Care
You can also use the Advance Healthcare Directive to provide specific instructions ahead of time for your medical care – whether or not you have appointed an agent to carry out those instructions.
You can provide instructions as to whether, and to what extent, you wish to sustain your life in the event you depend on life-supporting medical devices (feeding tubes, ventilators, etc.), pain relief, as well as provide other specific instructions for your end-of-life care.
If you so choose, you can spell out the specific reasons you would not wish to prolong your life, such as:
- you have an incurable or irreversible condition that would result in death within a very short period of time
- you become unconscious, and to a reasonable degree of certainty will not regain unconsciousness
- the likely risks and burdens of treatment would outweigh the expected benefits
Providing these instructions ahead of time will remove the burden on your family to try and come to a conclusion regarding these important medical decisions.
#3 – Make Decisions About Organ and Tissue Donation
The Advance Healthcare Directive can be used to clearly spell out if, and to what extent, your organs and tissue may be used after you have passed away. You can be as specific as you’d like when it comes to providing instructions on how to handle your body, organs, and tissue, after you are gone.
For example, you could decide to donate your entire body for scientific research if you wish. You could also choose to donate your organs and tissue for transplant only, or allow certain organs to be donated but not others.
It’s your body, so it’s your decision.
#4 – Designate a Physician
Finally, you can decide ahead of time which physician you would like to appoint to be primarily responsible for your healthcare, and can appoint alternative physicians in the event your first choice is unable to serve.
#5 – Signature
In California, the Advance Healthcare Directive needs to be signed before a notary or two independent witnesses. If you choose witnesses instead of a notary, the witnesses cannot be your agent, your medical provider, or an employee of your medical provider.
Don’t Wait Until it’s Too Late – Set Up Your Advance Healthcare Directive Today
The Advance Healthcare Directive is included in every estate plan I draft for my clients. If you already have a living trust or other testamentary instrument in place but have not yet set up this medical power of attorney, I can create the Advance Healthcare Directive for you as a piecemeal “unbundled” legal service.
Don’t wait until it’s too late – let’s get this set up so you can communicate your wishes for these very important decisions while you still have the chance. Contact me below to get started today.