ADVANCE HEALTH CARE DIRECTIVES
What is an Advance Health Care Directive?
State law says that you have the right to decide what health care treatment you want or don’t want. For example, if you don’t want blood transfusions or chemotherapy or radiation treatment, you have a right to refuse it even though your doctor may recommend it. So long as you are conscious and able to communicate with your care providers, they must first obtain your “informed consent” before proceeding with any treatment or procedure that is proposed.
But what if you are unconscious, comatose, or otherwise unable to understand what is being proposed or you cannot communicate your wishes? What if the doctors want to use treatments or procedures that you know you don’t want? How can you be sure your wishes will be respected?
The answer: Have a properly executed Advance Health Care Directive stating your wishes and appointing an agent to carry out your wishes. Only about 10% of the general population have advance directives, but every adult ought to have one.
Each state has its own law governing advance directives. In other states, such documents are variously referred to as medical directives, health care proxies, health care powers of attorney, health care declarations, or living wills. The document officially recognized by California state law since July 1, 2000, is the Advance Health Care Directive (AHCD), as set forth in Probate Code §4701.
Current California law also recognizes the old Durable Power of Attorney for Health Care Decisions (DPAHC) and the Natural Death Act Declaration (NDAD), which were the approved state forms prior to the AHCD.
[Note: Prior to 1992, all DPAHCs had a built-in 7-year expiration date. If you have an old DPAHC form from before 1992, it has expired and needs to be re-done.]
Both the AHCD and DPAHC allow you to designate an agent and alternate agents to make health care decisions for you in the event you cannot make those decisions yourself. Your agent must act according to the instructions you give in the AHCD or DPAHC. In either document, you can address all of the following issues:
Where can I get the California Advance Health Care Directive form?
What about having a “Living Will”?
“Living Will” is a generic term that is sometimes used by the media to refer to any type of advance directive, but more accurately it is simply a formal statement that you don’t want artificial life support if there’s no hope of recovery. The “living will” is not a valid legal document in California, although it is a valid document in many other states. While a generic “living will” may be a valid indication of your wishes, it may not be enforceable and it does not appoint an agent to act for you.
What authority will my agent have?
The agent appointed in your AHCD will have legal authority to make health care decisions for you if you can no longer make those decisions yourself. The agent is the person the doctors and hospital staff will defer to for your health care decisions. Your agent will be able to authorize or withhold medical treatment, sign a DNR (“Do Not Resuscitate”) form, have access to your medical records, make decisions about pain relief medication, organ donations, authorize an autopsy, and arrange for the disposition of your remains after death.
What kinds of statements can I make in my advance directive?
The form itself gives a number of options, including those already mentioned, but it also allows you to draft your own statements in as much detail as you want.
Remember to address the issue of maximum pain relief in the event of a terminal illness if that is of concern to you. There may not be a pre-printed statement in the AHCD form, so you might have to add such a statement. For example:
Maximum Pain Relief: In the event I am terminally ill, I desire that I be given maximum pain relief medication and be made as comfortable as possible, even if this leads to addiction or hastens the moment of my death.
With regard to organ donations, your AHCD agent has the authority to authorize such donations unless you say otherwise in the document. Donations can include:
There are no set age limits for organ donors, although there are guidelines, depending on the organ (or tissue) to be donated. The deciding factor is the donor’s physical condition, not the donor’s age. Religious convictions should be considered in making organ/tissue donation decisions.
You can also donate your entire body to science, but you need to make proper arrangements ahead of time. Currently four campuses of the University of California have “willed body” or “donated body” programs:
You can state in your AHCD whether or not an autopsy may be permitted.
With regard to disposition of remains, you can specify burial or cremation, or leave it to your agent to decide. Note that the AHCD agent has the legal authority to direct the disposition of your remains, even if other family members have different ideas. If you want to leave instructions regarding a funeral or memorial service, you can include those instructions as part of your AHCD. Prepaid cremation or burial arrangements should be specified in the AHCD.
What about “Do Not Resuscitate” (DNR) forms?
A pre-hospital DNR form is a standard pre-printed form that notifies emergency medical personnel not to use any resuscitative or other heroic measures to restore breathing and/or heartbeat if these functions have ceased. The DNR form can be signed by either the patient or the patient’s surrogate, and the patient’s physician must also sign the form. A copy should be kept in plain sight at the patient’s home (on the refrigerator door is the best place). DNR forms are typically used only for very elderly or acutely ill persons.
If a patient has already been admitted to a hospital, a hospital DNR form can be signed either by the patient or by the patient’s agent and this will go in the patient’s file if the attending physician also signs it. THIS IS A SEPARATE FORM, and it is only good during the duration of the patient’s immediate stay at the hospital.
Whom should I name as my agent?
The American Bar Association has developed a wonderfully helpful “Consumer Tool Kit” for dealing with your Advance Health Care Directive, and “Tool #1” deals with how to select the most appropriate health care agent. You can find this on the internet at https://www.americanbar.org/groups/law_aging/resources/health_care_decision_making/consumer_s_toolkit_for_health_care_advance_planning.html.
How can I best prepare my agent to act for me?
What is the “Five Wishes” thing?
“Five Wishes” is a discussion tool/advance directive form that poses 5 questions to help structure your end-of-life decisions. It contains some very helpful and thought-provoking guidelines for making such decisions. Here are the 5 questions:
The Five Wishes form can be purchased from Aging With Dignity for $5.00, and it meets California’s legal requirements for an advance health care directive. Call (888) 5-WISHES (594-7437), or go to www.agingwithdignity.org. They also have a guide called “Next Steps” on coping with serious illness and a 25-minute video (VHS or DVD format) available to explain the form and how to fill it out.
What to do if family members disagree with your end-of-life care wishes:
To ensure that your wishes are followed, be certain that the person you appoint to be your agent understands your wishes and will abide by them. Your agent has the legal right to make health care decisions for you, even if close family members disagree, if you cannot make those decisions yourself. However, if close family members express strong disagreement, your agent and your healthcare professional may find it extremely difficult and/or unpleasant to carry out the decisions you would want.
If you foresee that your agent may encounter serious resistance, the following steps can help forestall interference from others:
A Word about Psychiatric Advance Directives
If you are worried that someone might seek to have you involuntarily committed for psychiatric treatment at some future time, you can prepare a legal document in advance to express your choices about treatment. The document is called an advance directive for mental health decision-making, or a psychiatric advance directive (“PAD”). So far, California does not have an approved form for this.
For more information on the PAD, the internet has some excellent resources available: