One of the most important aspects of your estate plan may be the decisions you make about your health care. There may come a time when you are no longer able to make such decisions and by planning for that possibility, you can ensure that your desires will be carried out to the very end-of-life.
There are three tools at your disposal:
- Advance Health Care Directive (AHCD). This document serves two purposes. It permits an individual to appoint a health care agent (someone to make health care decisions in their place), if they become incapacitated and are unable to do so. The AHCD also permits an individual to provide instructions for treatment in particular situations, such as an accident that results in a permanent vegetative state. The AHCD replaces the living will in California. In addition, it may impact the validity of prior documents used to predetermine healthcare decisions, such as a Durable Power of Attorney for Healthcare. It is important to examine all prior health care-related documents and determine whether they should be replaced by an AHCD.
- A Do-Not-Resuscitate Order (DNR). An order written by a doctor that states cardiopulmonary resuscitation (CPR) should not be performed on a patient if breathing or the heart stops. A DNR may be selected in the AHCD. It may also be executed separately as a pre-hospital order, as indicated by a bracelet or medallion or a Vial of Life sticker on your home refrigerator. Without a DNR, medical personal will perform CPR in all emergency situations.
- Physician’s Orders for Life-Sustaining Treatment (POLST). This document provides instructions for treatment during a specific medical emergency. It is most appropriate for individuals with a serious illness or those who are approaching the end of their life.
When considering these options, the following questions become important:
- Why do I need an AHCD? While AHCD’s are not mandatory in California, they are an important component of estate planning. No one can anticipate a serious injury, life-threatening illness, or mental incapacity. It is something you simply have no control over. However, you can control the medical decisions made under those conditions by completing an AHCD. Think of it as a way to ensure you receive the care you desire when you are unable to speak for yourself.
- Is a California AHCD valid everywhere? Not necessarily. If you reside in more than one state, or move to another state, it is important to compare the AHCD forms in all states and if necessary, execute separate documents. In addition, California residents who execute an AHCD outside of the state may be required to complete the California form to they meet the state’s legal requirements.
- How does a DNR order work? If your breathing ceases or your heart has stopped, emergency medical staff will perform CPR unless:
- You are wearing a MedicAlert bracelet or medallion that indicates you and a physician have signed a pre-hospital DNR form.
- A legally valid DNR form has been placed in a Vial of Life bottle in your home refrigerator and the Vial of Life sticker has been affixed to the outside of that appliance, or,
- You have selected the DNR instruction on your AHCD
- Do I need a POLST? Not everyone needs a POLST, but under certain circumstances, it is warranted. Most often, a POLST is executed when an individual is diagnosed with a serious, chronic or terminal illness. However, a discussion between a physician and a patient must occur before the form can be executed.
- What if I don’t want to name a health care agent in my AHCD? Can I still provide instructions regarding my care? Yes, but it is in your best interests to appoint an agent or agents if at all possible. While an AHCD provides instructions for some of the more common medical conditions and possible treatments, there is a risk that unanticipated illnesses or conditions may arise. Failure to name an agent would leave that decision to medical personnel, possibly strangers without the knowledge or understanding of the factors that would influence your decisions regarding healthcare. It makes more sense to appoint someone you trust and grant them legal right to consent, refuse to consent, or withdraw consent for medical treatment. Decisions regarding your care should be based on what you want, not what is expedient or cost-advantageous for the medical institution responsible for your treatment.
- Can I set limits on my health care agent’s authority? In addition, their authority activates only after you have become physically or mentally incapacitated—as determined by a physician. If you regain the ability to make your own decisions, the agent’s authority is revoked.
- For how long is my AHCD valid? A legally notarized or executed AHCD is valid until it is revoked.
- Can an AHCD be changed? An AHCD can be modified at any time. In fact, it is good practice to review it regularly and if necessary, make adjustments for changing relationships and/or physical/mental conditions. However, all changes must be properly executed or notarized.
While your last Will and Testament specifies your desires after death, an AHCD provides instruction as to your desires while still alive. Both are essential documents in your estate plan. For more information on health care preplanning, please contact your estate planning attorney.