Estate Planning
Advance Healthcare Directives Protect Your Wishes When You Cannot
If you become too sick to make your own healthcare decisions, who would make them for you? Would your loved ones know how to carry out your wishes if you were unable to communicate them? Would they all agree on what is best? Recent cases in the news, including that of Terry Schiavo, have brought this issue to the forefront, with good reason.
Although many of us know that we should have the proper documents in place, few of us actually do. Fear of death often keeps people from addressing their estate planning needs. Additionally, the maze of legal jargon and documents can be confusing and intimidating.
If you have not named a surrogate to make decisions in case you are unable, your doctor will ask your closest available relative or friend. This is ripe with the possibility of disagreement within a family and the carrying out of wishes that are not your own. Simple documentation and preparation on your end can help you to avoid this problem.
Wills, "regular" (financial) powers of attorney, and living trusts take care of financial and legal matters, not healthcare matters. Healthcare matters are addressed by two documents. The first is a living will, which states the lengths you would like doctors to go to in order to keep you alive. The second is a durable power of attorney for healthcare. This second document allows you to appoint someone to make your healthcare decisions for you in the event that you are incapacitated. These documents are specific to each state.
Recent law has made the process even easier for those of us in California. The California Health Care Decisions Law (effective July of 2000) created a document called an Advance Healthcare Directive (AHCD), which is a combination of a living will and a durable power of attorney for healthcare. Therefore, if you live in California, you only need to fill out this one form in order to serve both functions.
In selecting an agent you would like to carry out your wishes, make sure that you give the matter serious consideration. There are a few things you may want to keep in mind when choosing an agent. How willing is the person to accept the responsibility? How aligned are their values and beliefs in this area with your own? What is their proximity to you? If you select someone for whom acting as your agent would require repeated trips over long distances, they may have a harder time carrying out your wishes. If you think that your wishes may not be met well by others involved, you'll also want to judge the ability of your chosen agent to stand up to other family members or health professionals if needed in order to carry out your wishes.
Selecting alternate agents is a good precaution. Additionally, it is advisable that you discuss your thoughts with your chosen agent ahead of time and get their approval for being appointed as your agent. Beth Trutner, an estate planning attorney in Livermore, notes, "the appointment of an agent who shares your views and philosophies relative to life sustaining treatment is perhaps more important than the directives themselves. You want someone who will follow your directions as expressed in the document without feeling morally conflicted."
When filling out the document, be thorough, but try to be as concise as possible, as a concise document has the best odds of being followed. It is also very important to tell people where a copy is located. Give your agent (and any alternates) a copy. You can also give a copy to your doctor and ask that it be made part of your permanent medical record.
Even though these documents are state-specific, states generally will honor each other's documents. However, if you regularly divide your time between two states (e.g. summer in one state and winter in another) you should ideally have documents in place for each state. Keep in mind that state, not federal, laws apply to each. For example, what one state considers life-sustaining treatment may not be so in another state. Ms. Trutner elaborates, "Although California law considers nutrition and hydration through feeding tubes and IVs life sustaining treatment, the document should nevertheless include express instructions as to when, if ever, nutrition and/or hydration should be withheld."
Once in place, you should review and update your AHCD as needed on a regular basis. You can change or revoke an AHCD at any time you have the mental capacity to do so. A change in the document should be handled by preparing a brand new AHCD to take the place of the old one. Revoking the document can be done orally, but we recommend doing so in writing.
Obtaining an AHCD form is easy. You can pick one up at your local hospital. You can also download and print copies online (just be sure you have selected the document for the state you want). Remember, without an advance directive decisions may not be made the way you would want them, or by the person you would choose to make them.
As comprehensive financial planners, we believe that having all of your estate documents complete and up to date is an important part of a thorough plan.