Californians of all ages and medical circumstances are concerned about their right to make their own health care decisions. This is particularly true when questions of whether to use or maintain life-sustaining procedures arise. Because the human body can be maintained when major body systems break down, when the brain is severely damaged, and even when consciousness is irretrievably lost, these decisions do and will continue to arise.
The California Health Care Decisions Act affirms the right of each individual to give instructions about his/her health care.
1. California Health Care Decisions Act and Prior Documents
The California Health Care Decisions Act (HCDA) took effect on July 1, 2000. Documents used prior to this law to indicate individuals' desires with regard to health care include the following:
a. Living Will
Many people are familiar with the term "living wills" and have used them to express health care desires, typically the wish to avoid being medically sustained with "extraordinary" or "heroic" measures.
b. Declaration and Directive to Physician
The California Natural Death Act, which was repealed by the HCDA, prescribed the "Declaration" in which you could express the desire that life-sustaining procedures not be used if death is almost certain to occur soon, or in the event of permanent unconsciousness. This document, its predecessor, the "Directive To Physicians," and other expressions of wishes regarding health care such as living wills, are valid as "individual health care instructions." However, they are limited and potentially confusing.
c. Durable Power of Attorney for Health Care
Available since January, 1984, the Durable Power of Attorney for health care is the predecessor to the Advance Health Care Directive.
2. California Health Care Decisions Act
This law integrated previous legislation and documents into a comprehensive statute allowing for Advance Health Care Directives.
a. Appointing an Agent
The document enables you to appoint someone else - your spouse, your son or daughter, a friend (called the "agent") - to make health care decisions for you if and when you cannot do so for yourself. It allows the important informed consent process to be carried out with your designated agent making decisions as you would most likely want them made.
The person you name in your document should know whether or not you want such treatment and either grant or refuse permission on your behalf. Significantly, a physician who respects the decision of this person - your agent - cannot be held liable for doing so.
b. Health Care Instructions
In addition to appointing an agent, you may also give health care instructions. You may explain how you want to be treated if, for example, you are permanently incapacitated and/or imminently facing death and are unable to make your own decisions about suggested life-sustaining treatment.
3. Discussion with Your Physician
Most important, your physician must know of your wishes about the use of life-prolonging treatments and procedures in the event that you are terminally ill or irrevocably unconscious. You must be assured that your physician will respect your decisions, or those of your health care "agent". If not, you should consider a change to another physician.
4. Should "Form" Documents Be Used?
There is a statutory form for the Advance Health Care Directive. For crucial decisions likely to be needed when one is permanently incapacitated, it (and other forms) fail to provide the specificity that would be necessary.
Nothing is more important than the power to make life or death decisions. Such power should be given only after obtaining good advice, with full understanding, and with explicit instructions that reflect the signer's wishes.
The form has many blanks to fill in. Great care must be taken to avoid ambiguity and inconsistency.
The form may not accommodate your special needs. In most cases, it is recommended that you have an attorney who is knowledgeable about the important medical and legal issues involved in preparing your Advance Health Care Directive.
A properly drafted Advance Health Care Directive satisfies the need for "surrogate" decision-making should incapacity strike. Thus, it can also avoid the possible need for a court-ordered conservatorship of the person. Instead, each individual is able to choose the person who will act on his/her behalf.
The Advance Health Care Directive, if properly drafted, is one of the least expensive forms of insurance each of us can buy. Even more important than documents which specify how we want our property disposed of upon death, the Advance Health Care Directive can ensure for each of us personal dignity and bodily integrity by detailing how decisions are to be made about our health care while we are still alive. Anyone who is age eighteen (18) or over should sign such a document.
Note: This article provides information, it does not constitute legal advice.
Gilfix & La Poll Associates LLP attorneys practice elder law and estate planning and are available to answer any questions about Trusts, Durable Powers of Attorney for asset management, Advance Health Care Directives, and any other appropriate planning options.