The importance of outlining your health care wishes now

Do you remember the Terri Schiavo case in Florida?

If you don’t, here’s a quick refresher. Terri Schiavo was on life support for several years. After years of unsuccessful treatment, her husband filed a petition to discontinue her feeding tube. Terri’s parents protested. They fought each other in court for 7 years over what should happen. This chaos could have been avoided with a living will.

California combines the living will document with a health care power of attorney in one document called an Advance Health Care Directive. This document allows you to identify the person(s) who should be allowed to make health care decisions for you along with listing limitations on their authority. It also captures your directions to your healthcare agent so you can clearly state what you do and do not want to happen in various circumstances.

There’s a state template you can use for your advance health care directive in California. However, if you have any special considerations or want to make sure the language will be interpreted the way you want, you should speak with a lawyer about the best way to word your wishes (and they should help you think through additional scenarios and considerations that the state template does not include). 

If you want to create an advance health care directive on your own, California provides a template you can use. You can download a fillable PDF from the Attorney General’s office.

The form is straightforward; however, it has limits and does make certain assumptions as a starting point. As a result, you need to carefully think about what you want so that you can modify the form to suit your wishes.

In addition, you need to think about whether you want different directions in different circumstances. For instance, if you are pregnant or if you have minor children at the time of incapacity you may want more treatment and attempts to preserve your life. You can outline in your instructions how you want to be treated under various circumstances, but you do have to be careful to be clear and comprehensive or you may not get the outcome you want.

If you want to make certain your directive is clear and that your wishes will be followed, it is best to work with an estate planning lawyer who can make sure everything is worded correctly. A good lawyer will also bring up questions and things to consider that are not included in the standard template so that you have the best possible directive for your specific wishes.

Custom Drafted Advance Health Care Directive

You can also draft your own advance health care directive or work with a lawyer to draft an advance health care directive. There are several advantages to this approach. First, if you want to make any changes to the statutory form at all, you must modify the template using extra instruction lines. This can lead to confusion and accidental contradictions. At a minimum that can make it difficult for your agent. Worst case, they may have to seek a court order, particularly if there are any disputes among your loved ones about what should happen. 

Second, you will have more flexibility. For example, you can define what you consider to be “life sustaining treatment” so that everyone knows what should continue and what should end at certain points. 

Third, if you work with a lawyer, they can identify areas that may be of particular concern given your situation (including things you may not have thought of) and/or identify the pros and cons of different approaches.

Advance Dementia Directive

The Alzheimer’s Association reports that 1 in 3 seniors die with Alzheimer’s or another dementia. Because these statistics are so high, it can be very important for you and for your loved ones to have specific instructions for what to do in the event you experience dementia and are no longer able to make decisions for yourself.

An advance dementia directive can include instructions on what kind of medical care or treatment you would like to receive, how you want to be fed, hygiene considerations, and similar guidance which can help ease the burden on your loved ones from having to make these decisions without guidance.

You can also customize what you want based on the stage of dementia you are experiencing. Or you can have the advance dementia directive only go into effect if you have severe dementia.

“…it can be very important for you and for your loved ones to have specific instructions for what to do in the event you experience dementia.”

If you choose to put together an advance dementia directive on your own, consider including the following:

• Instructions for oral feeding and drinking;
• Your preference for medical treatments to prolong life (e.g. live as long as possible, no use of specific procedures such as resuscitation or blood transfusions, etc);
• Whether you would prefer to die at home instead of in an institutional setting; and
• Any hygiene and/or comfort requests (such as a preference to receive pain medication even if it may shorten length of life).

These categories are just guidelines. You can choose to include other topics or limit what you cover to suit your personal preferences.

HIPAA WAIVER AND AUTHORIZATION

Due to privacy laws, your healthcare agent, trustee, and/or other family members do not have access your medical records, unless you specifically authorize it. California has specific requirements for the authorization to be effective.

Why would you want to authorize access to your medical records? There are several scenarios that could apply. For example, if you instructed your health care agent (assigned by you in the advance health care directive) to only authorize life-sustaining treatments if the benefits of treatment outweigh the risks, your agent may want to seek the opinions of different doctors during your treatment to help them make that decision.

Or there may be a point when your successor trustee needs to figure out whether they should step in to manage your trust assets. Depending on the requirements in your trust documents, they may need to talk directly with your doctor and/or review medical records.

If something happens to you, you may want your children to know what is going on. In that case, you can make sure they have access to all of your medical information instead of instead of forcing them to play telephone by sharing what Doctor A told Child 1 or Doctor B told Child 2 and having information garbled in the relay, 

Keep in mind, you must execute the waiver before you end up in a situation where you do not have the capacity to give that authorization. Otherwise, your family may be forced to seek a court order to obtain information. Make sure that the waiver and authorization meets all of the requirements in California’s code and/or work with a lawyer to ensure it is handled properly.

Do You Have More Questions?

You can set up a complimentary consultation with Rebecca Sommer to ask questions about advance health care directives or any other estate planning tools. Contact us to set up your complimentary phone call.