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Living Wills
Advance Health Care Directive replaces Living Will
The Advance Health Care Directive is now the legally recognized format for a living will in California. It replaces the Natural Death Act Declaration. The Advance Health Care Directive allows you to do more than the traditional living will, which only states your desire not to receive life-sustaining treatment if you are terminally ill or permanently unconscious. An Advance Health Care Directive allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation.
Unlike a living will, an Advance Health Care Directive also can be used to state your desires about your health care in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill. In addition, an Advance Health Care Directive allows you to appoint someone you trust to speak for you when you are incapacitated.
Advance Health Care Directive replaces Health Care POA
The Advance Health Care Directive has replaced the Durable Power of Attorney for Health Care (or "DPAHC") as the legally recognized document for appointing a health care agent in California. The Advance Health Care Directive allows you to do more than a DPAHC. An Advance Health Care Directive permits you not only to appoint an agent, but to give instructions about your own health care. You can now do either or both of these things.
All valid Durable Powers of Attorney for Health Care (DPAHC) and Natural Death Act Declarations remain valid. Thus, unless your existing DPAHC has expired, you do not have to complete a new Advance Health Care Directive. A DPAHC executed before 1992 has expired and should be replaced.
Because the new Advance Health Care Directive gives you more flexibility to state your health care desires, you may wish to complete the new form even if you previously completed a DPAHC or Natural Death Act Declaration. At a minimum, you should review your existing DPAHC or Natural Death Act Declaration to make sure it has not expired and that it still accurately reflects your wishes.
Who may I appoint as my health care agent?
You can appoint almost any adult to be your agent. You can choose a member of your family such as your spouse or an adult child, a friend, or someone else you trust. You can also appoint one or more "alternate agents" in case the person you select as your health care agent is unavailable or unwilling to make a decision. (If you appoint your spouse and later get divorced, the Advance Health Care Directive remains valid, but your first alternate agent will become your agent.)
It is important that you talk to the people you plan to appoint to make sure they understand your wishes and agree to accept this responsibility. Your health care agent will be immune from liability so long as he or she acts in good faith.
How much authority will my health care agent have?
If you become unable to make your own health care decisions, your agent will have legal authority to speak for you in health care matters. Physicians and other health care professionals will look to your agent for decisions rather than your next of kin or any other person. Your agent will be able to accept, or refuse medical treatment, have access to your medical records, and make decisions about donating your organs, authorizing an autopsy, and disposing of your body should you die.
If you do not want your agent to have certain of these powers or to make certain decisions, you can write a statement in the Advance Health Care Directive form limiting your agent's authority. In addition, the law says that your agent cannot authorize convulsive treatment (i.e., electroconvulsive therapy or ECT), psychosurgery, sterilization, abortion, or placement in a mental health treatment facility.
The person you appoint as your agent has no authority to make decisions for you until you are unable to make those decisions yourself, unless you choose to allow your agent to make those decisions for you immediately.
When you become incapacitated, your agent must make decisions that are consistent with any instructions you have written in the Advance Health Care Directive form or made known in other ways, such as by telling family members, friends or your doctor. If you have not made your wishes known, your agent must decide what is in your best interests, considering your personal values to the extent they are known.
What should I do with the Advance Health Care Directive form after I fill it out?
Make sure that the form has been properly signed, dated, and either notarized or witnessed by two qualified individuals. Keep the original in a safe place where your loved ones can find it quickly. Give copies of the completed form to the people you have appointed as your agent and alternate agent(s), to your doctor(s) and health plan, and to family members or anyone else who is likely to be called if there is a medical emergency. You should tell these people to present a copy of the form at the request of your health care providers or emergency medical personnel.
Take a copy of the form with you if you are going to be admitted to a hospital, nursing home or other health care facility. Copies of the completed form can be relied upon by your agent and doctors as though they were the original.
What if I change my mind after completing an Advance Health Care Directive?
You can revoke or change an Advance Health Care Directive at any time. To revoke the entire form, including the appointment of your agent, you must inform your treating health care provider personally or in writing. Completing a new Advance Health Care Directive will revoke all previous directives. In addition, if you revoke or change your directive, you should notify every person or facility that has a copy of your prior directive and provide them with a new one.
You should make a list of the people and institutions to whom you give a copy of the form so you will know whom to contact if you revoke the Advance Health Care Directive, update contact information, or make a new one.
If you want to protect your heirs in the case of a catastrophic illness, call us at (805) 778-0025 or (866) 480-0171 toll free outside the LA area or email us at info@venturalegal.com.
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