Mar 3

Advanced Health Care Directives

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California Advance Health Care Directive

What is it? The Advance Health Care Directive can be used to appoint a family member or friend to make health care decisions for you if you are physically or mentally unable to make those decisions yourself.  Similar documents are also called Durable Powers of Attorney for Health Care.  This document is more comprehensive than a living will or a directive to physicians. 

How does it work? The directive appoints an agent (and backup agents) who will carry out your wishes for health care. The directive also describes how much, or how little, medical care you want. For example, the directive might include details about use of pain-relieving drugs, when treatment should be halted, and whether nutrition and hydration should be provided to the patient.  The agent’s authority to take action is triggered only by a determination that the patient lacks mental capacity. Lack of capacity is determined by the patient’s primary physician and by the agent.

What is HIPAA?  It is the federal Health Insurance Portability and Accountability Act of 1996.  Although this law mainly affects the health insurance industry, it also has provisions concerning privacy rights for individuals. Among these provisions are regulations requiring written authorization from a patient before a health care provider can release certain health information.  All health care documents should include this authorization.  If you already have a health care document, you should have it updated to include an authorization that conforms to HIPAA regulations.

How does HIPAA affect other estate planning documents?  Many living trusts include a provision that allows the successor trustee to become the acting trustee if two physicians certify in writing that the original trustee is not mentally competent.  Trusts of this type should be amended to include language authorizing the successor trustee to obtain medical information about the original trustee.  Springing powers of attorney, which become effective only on the mental incapacity of the person who signed the power of attorney, should likewise be amended to include a HIPAA authorization.

What else should be done to help the successor trustee or agent obtain medical information?  The trustor should also contact all of his or her medical providers, including physicians, hospitals, clinics, etc., and sign authorizations that allow medical information to be given to successor trustees and agents.

What effect does the directive have on a person’s financial affairs? None. It is for health care purposes only.

What type of medical treatment can be requested in the directive? Usually the directive provides only general guidelines to an agent regarding the type of medical care that will be provided. However, the directive can also be very specific about “pulling the plug” and stopping life support, the type of medications and drugs that will be provided, and many other decisions. The directive can also specify whether food and water should be given to the patient, and whether pain relief should be provided.

Are Durable Powers of Attorney for Health Care still valid? Yes, and they do not need to be amended unless you would like to list new agents, or you want to change other details regarding the type of health care that will be provided. The intent of the new Health Care Decisions Law is not to invalidate these documents, but to clarify the law and expand the use of the directives.

What is not allowed under the new Advance Health Care Directive? Mercy killing, assisted suicides, and euthanasia are prohibited under California law.

What is a Living Will?  Living wills are informal documents that are used to inform medical personnel that the signer of the living will wants to die a natural death and does not want medical treatment in certain circumstances.  The term “living will” is sometimes used as a generic name for other types of health care documents, such as an advance health care directive.

The advantages of a living will are that it is simple to prepare, does not require a lawyer’s assistance, and does not follow any particular format.

However, the disadvantages are numerous: Lack of notarization or witnessing can cause questions about the document’s validity, the mental capacity of the signer, or whether the document has been signed under coercion or undue influence. Also, a living will does not have any statutory authority.

Instead of a living will, you should consider an advance health care directive. This document is notarized or witnessed, and its use and general format has been approved by the state.