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"Accidents
Can Happen At Any Time...
That's Why They Are Called Accidents..." |
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-Scott H. Linden |
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In California, your healthcare
documents may be called by one of several different names: advance
directive, medical directive, directive to physicians, declaration
regarding health care, designation of health care surrogate or
patient advocate designation. A healthcare declaration may also be
called a "living will," but it bears no relation to the
conventional will or living trust used to leave property at death
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If you're like most people, you aren't eager to
spend time thinking about what would happen if you became unable
to direct your own medical care because of illness, an accident or
advanced age. But if you don't do at least a little bit of
planning -- writing down your wishes about the kinds of treatment
you do or don't want to receive and naming someone you trust to
oversee your care -- these important matters could wind up in the
hands of family members, doctors and sometimes even judges, who
may know very little about what you would prefer.
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A Durable Power of Healthcare Will also Make Clear Your
Intent as to
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Receiving Pain Relieving
Medication,
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Being Kept Alive by Artificial
Means including Machinery,
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Having an Autopsy Performed to
Determine Cause of Death,
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Donation of Organs and Any
Limitations Thereto,
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What to Do With Your Remains,
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And More.
We Can also Assist in the Creation of a Prehospital Do Not
Resuscitate (DNR) Instructions. This will tell the
Emergency Medical Service (EMS) Personnel that You Do Not Want Life
Resuscitation in the event of cardiopulmonary arrest, a stoppage of
the heart.
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REQUIREMENTS:
You must be at least 18 years old to make a
valid document directing your healthcare. You must also be of
sound mind -- that is, able to understand what the document means,
what it contains and how it works.
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TIMING:
Your healthcare documents take effect if your
doctor determines that you lack the ability, or capacity, to make
your own healthcare decisions. Lacking capacity usually means
that:
- you can't understand the nature and
consequences of the healthcare choices that are available to
you, and
- you are unable to communicate your own
wishes for care, either orally, in writing or through
gestures.
Practically speaking, this means that if you
are so ill or injured that you cannot express your healthcare
wishes in any way, your documents will spring immediately into
effect. If, however, there is some question about your ability to
understand your treatment choices and communicate clearly, your
doctor (with the input of your healthcare agent or close
relatives) will decide whether it is time for your healthcare
documents to become operative.
It's
a wise decision
to make legal documents setting out your wishes for healthcare in
case you are ever unable to speak for yourself.
In California, it is possible to give your
healthcare agent the authority to manage your medical care
immediately. If your state allows this option, you may prefer to
make immediately effective documents for any of several reasons,
including:
- Taking quick action.
Your agent will be able to make decisions for you as soon as
the agent feels that you need help, without first having a
doctor confirm that you are incapacitated. This may be
particularly important if you are not under the care of a
doctor with whom you have an established, trusting
relationship.
- Keeping control in the hands of
your agent. You may feel that your agent, not a
doctor, is the best person to decide that you can no longer
direct your own medical care.
- Asking your agent to step in
early. If you make your documents effective right
away, your agent can start making decisions for you whenever
you decide that's what you want, even if you still have the
capacity to make your own choices. If illness, exhaustion or
any other circumstances have left you feeling that you'd like
someone you trust to deal with your doctors and make treatment
choices for you, making an immediately effective document
gives you that flexibility.
Making your document effective immediately
will not give your agent the authority to override what you want
in terms of treatment; you will always be able to dictate your own
medical care if you have the ability to do so. And even when you
are no longer capable of making your own decisions, your
healthcare agent must always act in your best interests and
diligently try to follow any healthcare wishes you've expressed in
your healthcare declaration or otherwise.
When Your Healthcare Directives End
Your written wishes for healthcare remain
effective as long as you are alive, unless you specifically revoke
your documents or a court steps in. Court involvement is very
rare. Here are a few more specifics about when your healthcare
documents are no longer effective:
- You revoke your document.
You can change or revoke your advance directive at any time,
as long as you are of sound mind.
- A court invalidates your
document. Most judges recognize that a court is
normally not the right place to make healthcare decisions.
However, if your healthcare is the subject of a dispute and
someone questions the validity of your healthcare directives,
the matter may end up before a judge.
If someone doubts that you had the mental capacity to prepare
a legally valid healthcare document, that person can ask a
court to invalidate your document. Such lawsuits are rare, but
they do sometimes occur. The burden of proving that you were
not of sound mind when you made your advance directive falls
on the person who challenges the validity of your document.
(In other words, the law presumes that you had the mental
capacity to make your healthcare documents.)
It is also possible that a court could invalidate your
document if it wasn't properly completed -- for example, if
you did not meet your state's requirements for having the
document notarized or witnessed. If this happens, however, it
is still likely that any wishes for healthcare you set out in
the document will be followed -- as long as they are clearly
expressed and you were of sound mind when you wrote them down.
In the famous case Cruzan v. Director, Missouri Dept. of
Health, 497 U.S. 261 (1990), the U.S. Supreme Court said
that any strong evidence of someone's wishes for care should
be honored. So your directions won't be ignored simply because
of a technical error.
- A court revokes your agent's
authority. If, after your healthcare documents take
effect, someone believes that your healthcare agent is not
acting according to your wishes or in your best interests, the
concerned person can go to court and ask for an investigation
of your agent's behavior. If a court finds that your agent is
acting improperly and revokes his or her authority, the job
will go first to an alternate agent you named in your advance
directive. If there is no available alternate -- or if the
court invalidates your entire document for one of the reasons
discussed just above -- a conservator will be appointed to
make healthcare decisions for you.
- You get a divorce.
Getting divorced has no effect on your written directions for
healthcare (your healthcare declaration). But if you named
your spouse as your healthcare agent, his or her authority is
automatically revoked in a number of states. If you named an
alternate agent in your advance directive, that person will
take over. If you get a divorce before your healthcare
directives take effect, it's wise to eliminate confusion by
starting over. Even if you named an alternate agent in your
directives, make a new document and name someone else as your
agent.
- After your death.
Generally, your healthcare documents are no longer necessary
when you die. In California, however, your healthcare
directives remain effective after your death for some very
limited purposes. Your agent may be permitted to supervise the
disposition of your body, including authorizing an autopsy or
organ donation, unless you specifically withheld these powers
when you made your healthcare documents.
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ESTATE PLANNING