HEALTHCARE DIRECTIVES

If you are an adult in California, an Advance Healthcare Directive is an important part of a complete estate plan. It allows you to choose who can make healthcare decisions for you if you cannot make or communicate those decisions yourself—and allows you to put your healthcare wishes in writing.

You are not required to have an Advance Healthcare Directive simply because you live in California.

But without advance planning, the person making decisions during a medical crisis may not necessarily have clear written instructions about what you want.

An Advance Healthcare Directive allows you to make those choices while you are able to make them.

California’s statutory Advance Healthcare Directive specifically gives you the right to provide instructions about your healthcare and to name another person to make healthcare decisions for you.

An Advance Healthcare Directive—often abbreviated AHCD—is a legal document that allows you to do two important things:

1. Choose a Healthcare Agent

You can designate a trusted person to make healthcare decisions for you if you become unable to make those decisions yourself.

You can also designate an alternate agent if your first choice is unwilling, unable or unavailable to serve.

2. State Your Healthcare Wishes

You can provide instructions concerning the medical care you would or would not want.

California’s statutory form specifically allows instructions concerning matters such as life-sustaining treatment and pain relief. It also provides options concerning organ donation and designation of a primary physician.

You can appoint an agent, provide written healthcare instructions, or do both.

Because an Advance Healthcare Directive is intended for circumstances you cannot necessarily predict.

You could temporarily or permanently lose the ability to communicate because of:

An accident
Serious illness
Stroke
Surgery or complications from surgery
Brain injury
Dementia or Alzheimer’s disease
Loss of consciousness
Other medical conditions

Advance healthcare planning is not limited to older adults or people who are terminally ill.

California Courts specifically includes an Advance Healthcare Directive among the estate-planning documents that can help people prepare for unexpected periods when they are too sick to communicate with their doctors.

The best time to decide who should speak for you is generally Because an Advance Healthcare Directive is intended for circumstances you cannot necessarily predict.

You could temporarily or permanently lose the ability to communicate because of:

• An accident
• Serious illness
• Stroke
• Surgery or complications from surgery
• Brain injury
• Dementia or Alzheimer’s disease
• Loss of consciousness
• Other medical conditions

Advance healthcare planning is not limited to older adults or people who are terminally ill.

California Courts specifically includes an Advance Healthcare Directive among the estate-planning documents that can help people prepare for unexpected periods when they are too sick to communicate with their doctors.

The best time to decide who should speak for you is generally before anyone needs to speak for you.

The authority you give your agent depends upon your directive and any limitations you include.

Under California’s statutory form, an agent who has not been given narrower authority can potentially make a broad range of healthcare decisions.

These can include decisions concerning:

• Medical treatment
• Surgery
• Diagnostic testing
• Medication
• Healthcare providers
• Hospitals and other healthcare institutions
• Life-sustaining treatment
• Artificial nutrition and hydration
• Cardiopulmonary resuscitation
• Other healthcare decisions

California law generally permits an authorized healthcare agent to make healthcare decisions to the same extent the patient could if the patient had capacity, subject to the directive and applicable law.

That is substantial authority.

It is why choosing the right person is so important.

Choose someone you trust to carry out your wishes, even if the decisions become difficult.

A good healthcare agent should generally be:

• Someone you trust completely
• Willing to serve
• Available when needed
• Able to communicate effectively with physicians
• Capable of making difficult decisions under pressure
• Familiar with your values and wishes
• Willing to follow your wishes rather than substitute their own

You should also consider naming an alternate agent.

California’s statutory form expressly allows you to designate alternate agents if your first choice cannot serve.

And don’t merely put someone’s name on the document.

Talk to them.

Make sure the person understands what you want and is willing to accept the responsibility.

Being married does not eliminate the value of an Advance Healthcare Directive.

Even when your spouse would be involved in your care, a written directive provides clarity about whom you selected as your agent and what you want that person to do.

It can also address what happens if your spouse:

Is unavailable
Is also injured or ill
Dies before you
Is no longer the person you want making decisions
Disagrees with other family members about your wishes

Naming an agent and alternate agents removes much of the uncertainty.

Instead of leaving family members wondering: “What would they have wanted?” you have an opportunity to tell them.

The same principle applies.

You may have several adult children who love you and want what is best for you.

But what happens if they disagree? One child may favor continuing aggressive treatment. Another may believe you would want comfort care. Another may live across the country.

An Advance Healthcare Directive allows you to identify the person you want to have decision-making authority and to provide instructions that can guide that person.

The objective isn’t to exclude your family. It is to reduce uncertainty for them.

California’s statutory directive allows you to express your wishes concerning healthcare even if you do not appoint an agent.

For example, you can address your preferences concerning:

Life-Sustaining Treatment
Under what circumstances would you want treatment intended to prolong your life?

Pain Relief
What are your wishes concerning treatment to alleviate pain?

Artificial Nutrition and Hydration
What authority should your agent have concerning these measures?

Other Medical Treatment
You can provide additional instructions concerning your healthcare.

Organ and Tissue Donation
California’s form provides an opportunity to express your intentions concerning anatomical gifts.

Primary Physician
You can designate the physician you want to have primary responsibility for your healthcare.

California’s statutory form provides sections addressing each of these subjects.

That’s normal. You cannot anticipate every medical situation that might arise years from now.

An Advance Healthcare Directive does not require you to write instructions for every conceivable medical procedure.

One of its most valuable functions is allowing you to select a trusted human being who can make decisions when circumstances cannot be predicted in advance.

You can also talk with your agent about broader values.

For example:

• What does an acceptable quality of life mean to me?
• How important is remaining independent?
• How do I feel about prolonged life support if recovery is extremely unlikely?
• What matters most to me if medicine cannot cure my condition?

Those conversations can help your agent make decisions consistent with your wishes when the exact circumstances were impossible to foresee.

The terminology can be confusing.

People sometimes use “living will” to describe written instructions concerning future medical treatment.

California’s Advance Healthcare Directive is broader.

It can combine:

Your written healthcare instructions
and
Your appointment of a healthcare agent.

California’s statutory form describes Part 1 as a power of attorney for healthcare and Part 2 as the section for individual healthcare instructions.

So rather than relying on the informal term “living will,” it is generally clearer in California estate planning to discuss an Advance Healthcare Directive.

No. They address different areas of your life.

Durable Power of Attorney

Generally concerns financial and legal matters. Depending on the authority granted, your agent may be able to handle matters involving accounts, property, taxes and other financial affairs.

Advance Healthcare Directive

Concerns healthcare and medical decisions. It identifies the person you want making healthcare decisions and can state your healthcare wishes.

California Courts identifies both documents as important but distinct components of advance planning.

A comprehensive estate plan will often contain both.

No.

A Living Trust primarily concerns the ownership, management and eventual distribution of assets held by the trust.

An Advance Healthcare Directive concerns you and your healthcare.

Think of the documents as addressing different questions:

Living Trust – Who manages my trust assets if I cannot, and what happens to those assets when I die?

Durable Power of Attorney – Who can handle specified financial and legal matters for me?

Advance Healthcare Directive – Who speaks for me about healthcare if I cannot speak for myself?

Will – How should matters governed by my will be handled after my death?

Together, these documents can form a coordinated estate plan.

The consequences depend on the circumstances.

California law has mechanisms for healthcare decision-making when a patient lacks capacity and has not appointed an available agent. But relying on those default mechanisms is different from personally choosing your decision maker and documenting your wishes in advance.

In some circumstances, court involvement can also become necessary. California courts note that a court petition may be available when an incapacitated relative needs medical treatment and no Advance Healthcare Directive resolves the issue; longer-term circumstances can potentially involve conservatorship proceedings.

Advance planning can reduce uncertainty about:

• Who should make the decision?
• What treatment would you want?
• What treatment would you refuse?
• Who did you trust to speak for you?

Yes.

Creating an Advance Healthcare Directive does not mean that decisions you make today are permanently frozen. California law provides mechanisms for revoking an agent designation or other portions of an Advance Healthcare Directive while you have capacity, and you can replace your directive as your circumstances or wishes change.

You should consider reviewing the document after significant changes such as:

• Marriage
• Divorce
• Death of your healthcare agent
• Serious medical diagnosis
• Changes in your relationship with your agent
• Changes in your healthcare wishes
• Moving
• Significant passage of time

The document should reflect who you trust and what you want today.

Execution requirements matter.

California’s statutory Advance Healthcare Directive provides for the document to be signed and dated and then either: signed by two qualified witnesses or acknowledged before a notary public.

Special requirements can apply in certain circumstances, including for residents of skilled nursing facilities.

This is one reason estate-planning documents should be prepared and executed carefully rather than simply downloaded, signed and forgotten.

A perfectly prepared Advance Healthcare Directive does little good if nobody can find it during an emergency.

California’s statutory form recommends providing copies to your:

• Healthcare agent
• Physician
• Other healthcare providers
• Healthcare institutions where appropriate

California Courts similarly recommends giving a copy to your healthcare provider.

Your agent should know that the directive exists and where a copy can be obtained.

You should also discuss your wishes with your agent rather than expecting the document to replace the conversation.

Do I Need an Advance Healthcare Directive in California?

There is no requirement that every California adult have one.

But consider one simple question: If you couldn’t communicate with your doctors tomorrow, who would you want speaking for you?

Then ask: Would that person know what you wanted?

An Advance Healthcare Directive lets you answer both questions before a medical emergency occurs.

For most people creating a comprehensive California estate plan, it is an important document to consider alongside a Living Trust, will and durable power of attorney.

Estate Planning Is About Your Life, Not Just Your Estate

People often associate estate planning with death.

But some of the most important estate-planning documents may become necessary while you are very much alive.

A complete plan should consider:

• Who manages my financial affairs if I cannot?
• Who manages assets held in my trust?
• Who makes healthcare decisions for me?
• What medical care do I want?
• What happens to my property when I die?

Planning for those questions today can make an extraordinarily difficult situation easier for the people you care about tomorrow.