Living Wills and Health Care Durable Powers of Attorney
What is an advance directive?
An “advance directive” is a document in which you provide instructions or express your wishes about the medical care you want to receive if you become incapable of making treatment decisions.
The two most common types of advance directives are
- the living will and
- the durable power of attorney (DPOA) for health care.
In California, these two documents are combined and referred to as an advance health care directive.
What is a living will?
A living will (also known as a directive to physicians or health care declaration) is a document in which you set forth the types of medical care and treatment you want to receive or don’t want to receive when you can no longer speak for yourself because you are
- terminally ill
- near death
- permanently unconscious
What is the Advanced Health Care Directive (AHCD)?
In the video, Vinny explains what an advanced health care directive is and stresses the importance of giving this decision careful thought both alone and with family. He also touched on California’s durable power of attorney, which involves the choice of granting someone the authority to make medical decisions in accordance with a living will.
Who can make an Advanced Health Care Directive (AHCD)?
Any competent adult can make an AHCD.
When does an AHCD take effect?
An AHCD will occur when you are unconscious or no longer mentally competent to make your own treatment decisions.
Incompetency means you don’t have the ability to understand the consequences of a treatment decision, including the risks, benefits, and alternatives.
Thus, you could be conscious and able to communicate yet not be competent to make a health care decision.
What are the requirements for a valid AHCD?
The specific requirements vary from state to state. Some states provide a form that may or may not be mandatory.
Typically you must sign your AHCD, and your signature must be notarized or witnessed, usually by two competent adults.
Certain persons may be disqualified from serving as witnesses, such as relatives, beneficiaries of your estate, and your health care providers.
Some states allow you to make an oral AHCD before witnesses, but the better practice is to put your wishes in writing.
What types of treatment can I request or refuse in my AHCD?
In your AHCD, you may request that your health care providers administer life-sustaining treatment, withhold life-sustaining treatment, or withdraw life-sustaining treatment after a period of time. You have a federal constitutional right to refuse medical treatment, even if that refusal is likely to lead to death.
You may want different instructions for different situations, for example, the last stages of a terminal illness versus a state of unconsciousness from which you are not expected to recover.
The types of treatment you’ll want to consider include:
1. Cardiopulmonary resuscitation. If your heart stops beating, do you want health care professionals to administer CPR, drugs, and electrical shock with a defibrillator to attempt to restart it?
2. Intubation and ventilation. If you are unable to breathe on your own, do you want to have a tube inserted in your windpipe that is connected to a machine that will help you breathe?
3. Feeding and hydration. If you are unable to eat or drink, do you want to be fed and hydrated with an IV or feeding tube?
4. Dialysis. If your kidneys fail, do you want to be connected to a machine to remove toxins from your body
5. Antibiotics/antivirals. If you have an infection, do you want it treated with medications or allow it to go untreated even if that may hasten death?
6. Surgery. If surgery becomes necessary to prolong your life, do you want to undergo it or let nature take its course?
7. Palliative care. Instead of aggressive life-prolonging care, would you prefer to receive only medications and other treatment for the purpose of keeping you pain-free and comfortable?
Discussing these decisions with your doctor before making your AHCD is a good idea. Your doctor can explain the risks, benefits, and consequences of these treatments so you can make a more informed decision. Your doctor should tell you if he or she has reservations about following your instructions, in which case you can seek another doctor.
Once I have made my AhCD, what should I do with it?
Your health care providers can follow the instructions in your AHCD only if they know what your instructions are. To ensure your wishes are known, you should give a copy of your AHCD to your doctors and your hospital or care facility when you are admitted.
If you have a durable power of attorney for health care, you’ll want to provide your agent with a copy of your AHCD.
In addition, consider giving a copy to family members who are close by and likely to be in a position to see that your wishes are carried out. And you’ll want to take a copy with you when you travel.
You may also want to put a card in your wallet stating the name of your health care agent (if you have one) and where your AHCD (and health care power of attorney) can be found.
Can I cancel or change my AHCD? How?
Yes, you can revoke or change your AHCD at any time. You should review your AHCD periodically to make sure it still expresses your wishes. Especially appropriate times to review your AHCD are before you enter the hospital for treatment, when you are diagnosed with a serious illness and if your marital status changes.
State laws typically provide that you can revoke your AHCD by destroying the original, signing and dating a written revocation, or executing a new AHCD that is inconsistent with the old one.
The safest practice is to destroy the original and execute a written revocation or a new AHCD stating your current desires. Then you should be sure to give the new document to everyone to whom you gave a copy of your old AHCD, i.e., your doctors, hospital or care facility, health care agent, and family members.
You can also revoke your AHCD by telling your care providers that you no longer want them to follow it.
Will my doctor honor my AHCD?
Your doctor is not required to honor your AHCD. Your doctor may refuse to follow your instructions if he or she has moral, religious, or ethical objections or believes it would not be consistent with sound medical practice. Your AHCD merely gives your doctor immunity from liability for following your directions.
There are some things you can do to increase the chances that your doctor will honor your AHCD.
- First, discuss your wishes with your doctor and seek assurances that he or she will follow them.
- Second, make sure your doctor has a copy.
- Third, make sure your family members are aware of your wishes and give them a copy of your AHCD.
- Finally, execute a durable power of attorney for health care naming an agent to make decisions for you. Make sure your agent knows your wishes and is prepared to advocate for you.
What is a health care durable power of attorney (DPOA)?
A health care durable power of attorney is a document in which you name a person to make health care decisions for you when you are not able to make your own decisions. Depending on where you live, the person may be called your health care agent, surrogate, proxy, or representative.
Who can make a health care DPOA?
Any mentally competent adult can make a health care DPOA.
What are the requirements for a health care DPOA?
Every state has its own requirements. Some states provide a form, which may or may not be mandatory.
Typically a health care DPOA must be in writing signed by you and notarized or witnessed by two competent adults.
Certain persons may be disqualified as witnesses, such as:
- beneficiaries of your estate
- the person named in the health care DPOA as your agent
- your health care providers
Whom should I name as my health care agent?
First, you should name a person with whom you can comfortably discuss your wishes for medical care and end-of-life treatment. This should be a person who is willing and able to listen to you and capable of understanding your wishes. Having a frank discussion with your agent (and with your doctor) is probably the most important thing you can do to ensure your wishes will be followed.
Second, you want to name a person whom you trust to carry out your instructions.
Third, you should name a person who is nearby, if possible, and will be readily available to discuss your needs with your health care providers.
Fourth, you want to choose someone who is assertive. You want someone who can articulate your wishes to healthcare providers and firmly insist they be carried out in the face of possible resistance from healthcare providers and family members.
People usually choose a spouse or an adult child or sibling. However, your agent need not be a relative.
A trusted close friend can be an excellent choice.
If you have named an individual as your agent for financial decisions in a durable power of attorney, you may want him or her to also serve as your health care agent.
Can I name my doctor as my health care agent?
No. State law generally precludes you from naming your doctors or any other health care providers or employees of your health care providers or of the hospital or other facility at which you receive care.
Should I name more than one agent?
You should consider naming an alternate agent who will serve if the first person you designate is unable to serve as your agent.
Naming two agents to serve together is generally not a good idea. It creates the possibility of disagreements that may confuse health care providers, cause delays, and need to be resolved in court.
What types of decisions can my health care agent make?
You can decide what decisions you want your health care agent to make. You can give your health care agent broad authority to make virtually all health care decisions for you if you are unable to make them for yourself. Or you can limit the agent’s power. Some people limit their agent’s power to the instructions on their CDs.
With broad powers, your health care agent will be able to:
- Access your medical records.
- Decide in which medical facilities you will receive care.
- Choose your health care providers.
- Visit you when you are in a hospital or medical facility
- Consent to or refuse most types of medical and mental health treatment.
State law may provide that certain treatments cannot be authorized by your health care agent. These typically include abortion and some extreme mental health treatments. Your agent also cannot authorize treatment or withdrawal of treatment in conflict with your AHCD.
Furthermore, your agent must make your health care decisions according to the agent’s knowledge of your wishes, which is why it’s so important for you to have a candid discussion with him or her. If the agent does not know your wishes, the agent must base the health care decisions on your best interests.
So long as you have full confidence in your agent, consider giving him or her broad powers to make decisions for you, as it can be difficult to foresee what anyone’s medical needs may be in the future. Giving your agent full authority may reduce the chances of having the issue end up in court.
If I execute a health care DPOA, will I be giving up the right to make my own decisions? In other words, does my health care DPOA go into effect as soon as I sign it?
No, you do not give up your right to make your own health care decisions when you execute a health care DPOA.
Your agent cannot make health care decisions for you until your doctor certifies that you are incompetent.
Incompetent means that you lack the ability to understand the consequences of a treatment decision, including its risks, benefits, and possible alternatives.
Who will make medical decisions for me if I don’t have a health care DPOA?
If you do not have a health care DPOA, family members will determine who makes medical decisions for you if you are not able to make them for yourself. As a general rule, the authority goes in order to your spouse, adult children, parents, and then to your nearest living relative.
If you want a non-relative to make your health care decisions, you will need a health care DPOA. Furthermore, a health care DPOA can serve as a tie-breaker if your family members do not agree with your treatment.
Can I cancel or change my health care DPOA? How?
Yes, you can revoke or amend your health care DPOA at any time. State law typically provides that you can revoke your health care DPOA by destroying the original, signing and dating a written revocation, or executing a new health care DPOA that is materially different from the preceding one.
The safest practice is to destroy the original and execute a written revocation or a new DPOA expressing your current desires. Then you should be sure to give the new document to your current agent and alternate, your doctor, and the hospital or care facility.
You can also revoke your health care DPOA by stating your intention to revoke it. A divorce would revoke your health care DPOA if you named your former spouse as your agent.
Once I have made my health care DPOA, what should I do with it?
Keep the original along with your AHCD in a safe place where you and your family members can easily locate it.
Give a copy to your agent and your alternate agent as your agent may need to present it to health care providers to prove his or her authority.
Provide a copy to your doctor and your hospital or care facility when you are admitted. Take a copy with you when you travel.
You may also want to put a card in your wallet stating the name of your health care agent and where your original health care DPOA and AHCD can be found.
When should I create an AHCD? Aren’t these documents only for elderly or terminally ill persons?
CDs are not just for the sick or elderly. Every adult should consider putting these documents in place. A catastrophic accident or medical crisis rendering a person permanently unconscious could occur at any time.
What is Authorization to Protected Health Information and do I need one?
In addition to an advanced healthcare directive, Vinny explains the value of obtaining authorization to access protected health information in estate planning documents in the video. He notes that in the event that you get sick or lose your capacity, the document enables your loved ones or other authorized individuals to speak with your doctors about medical issues.
Talk to a Qualified AHCD Attorney
Many people execute AHCDs as part of a comprehensive estate plan prepared by their estate planning attorney. Attorney Vincent Casiano can help you prepare an AHCD to ensure that your wishes are followed. Schedule a consultation with him today!