Many people avoid thinking about planning for incapacity. However, the unexpected can happen at any time — and it’s important to be prepared. No matter what age you are, and regardless of your health condition, it’s crucial to have an advance healthcare directive in place to ensure your wishes will be carried out if you cannot speak for yourself. This document is a key component of any estate plan and should not be overlooked.
An advance healthcare directive is a document that communicates your medical and health care preferences to your doctor and family members if you become incapacitated. It is used to convey your wishes concerning your medical treatment and allows you to select a person to make healthcare decisions on your behalf. In California, an advance healthcare directive consists of two parts: 1) an appointment of an agent for healthcare and 2) individual health care instructions. Each part is legally binding, whether used by itself or together.
An advance healthcare directive typically includes provisions for the following medical decisions:
You can also use this document to specify whether you wish to have an autopsy performed, and if you have specific funeral or burial wishes. Critically, you should not confuse an advance healthcare directive with a “Do Not Resuscitate” DNR directive. A DNR directive is very limited in scope and is a separate document. Such provisions are not included in an advance healthcare directive.
It’s important to choose an agent who will be listed in your advance healthcare directive very carefully. Asking an individual to exercise the authority you will give them to make medical decisions on your behalf is a serious matter. It’s vital to ensure they will be able to handle the responsibility should such circumstances arise.
Since making health care decisions on another’s behalf can be stressful and emotional, your closest relatives might not always be the best choice to serve as your agent. You might consider designating an older relative or sibling rather than your child, who might feel overwhelmed by the prospect of having to make such decisions. Significantly, you will need to select someone who will be able to handle tough situations and discuss serious issues with medical professionals if you are unable to do so yourself. It’s a good idea to discuss the wishes you outlined in the document with your agent so they have a full understanding of them, in the event they would need to carry them out.
Like any other legal document, there are certain requirements that must be satisfied in order for an advance healthcare directive to be valid. In California, any person who is 18 years of age or older and mentally competent may execute an advance healthcare directive. Additionally, two witnesses over 18 or a notary must sign the document.
If you choose to have the document witnessed, rather than notarized, it’s critical to be aware that there are certain restrictions. Neither of your two witnesses may be your healthcare agent, medical provider, employee of your healthcare provider, the operator or employee of a community care facility, or the operator or employee of a residential care facility for the elderly. In addition, one of your two witnesses must not be a relation by blood, adoption, or marriage — and they cannot be entitled to any part of your estate by law or the terms of your will.
Once you have carefully considered the provisions in your advance healthcare directive and selected a health care agent, keep the original with your files. Give a copy to your health care agent, and any alternative agent you designated. You might also provide a copy to your doctor, hospital, insurance plan, and a trusted family member or friend.
Be sure to keep your health care directive up to date. Review the document from time to time to make sure it reflects your current wishes. You should also review it whenever a major life change occurs — such as a marriage or divorce — to be sure the person you designated as your health care agent is still the individual you wish to take on that role. For instance, while many people name their spouse as their agent, you likely want to make a change if you part ways.
An advance healthcare directive will remain in effect until you revoke it. You can revoke or change the document at any time, as long as you are still of sound mind when it is executed. The best way to revoke the document is to do so in writing — and be sure to destroy any other copies that have been distributed.
An advance healthcare directive is an essential document that everyone should have in their estate plan. A knowledgeable trusts, estates, and probate attorney can discuss your options and help ensure you have a valid advance healthcare directive in place should the event of incapacity arise. The California trusts, estates, and probate attorneys at White and Bright, LLP have extensive experience helping individuals and their families with a wide variety of estate planning matters. Contact us or call (760) 747-3200 to schedule a consultation.