health

HEALTH CARE DECISIONS

Today, regardless of age or medical circumstances, people are becoming more informed about their rights concerning medical care and are concerned that their wishes and belife will be honored. Initially, this question often arises in cases involving life and death and whether or not to use or maintain life-sustaining procedures. But, there are increasing instances where health care does not always mean life or death. As many of my clients are finding, it is not life and death, but the quality of life that is important to them. What follows is a brief review of the types of documents involved in making health care decisions. Of course, this is not an exhaustive review, but it is hoped that it may answer some of your questions or be thought provoking.

A "Living Will"

Common outside California, a "Living Will" is a document wherein a person expresses his or her desire that "extraordinary" medical procedures not be used to sustain life. Because a Living Will does not flow from state or federal legislation it does not have the force of law in the State of California. A Living Will does express a person's wishes and it may be helpful in conjunction with a properly executed Durable Power of Attorney for Health Care.

Discuss Your Wishes With Your Physician

Your doctor should be aware of and understand your wishes about the use of life-prolonging treatments and procedures in the event that you are unable to communicate your wishes. You must be assured that your doctor will respect your decisions and those of your health care "agent" and carry out your wishes. If not, you should consider changing to a physician who will.

Natural Death Act Declaration

In 1992, California law expanded the scope of the California Natural Death Act (a statement to your doctor about your desires regarding life sustaining procedures). Unlike the prior "Directive to Physicians," which expired after five years, the new Declaration continues in effect until and unless revoked. Currently, any physician unwilling to comply with the Declaration must refer the declarant to a physician who is willing to comply. The new Declaration also explicitly directs withdrawal of artificially administered nutrition and hydration. While this document does not allow for full expression of your wishes in instances not involving terminal illness, if no one is available to act as your surrogate decision-maker, this document may provide some protection and indication of your wishes.

Durable Power of Attorney for Health Care

Effective in California since 1984, the Durable Power of Attorney for Health Care (DPAHC) is a must for everyone 18 years of age or older. This is a flexible document designed to convey your wishes about your health care whether you are suffering from a life-threateningly condition, are chronically ill, or are otherwise facing serious medical treatment.
The DPAHC enables you (known as the principal) to appoint one or more persons, known as your Attorney In Fact or Agent, to make health care decisions for you in the event you cannot. It provides a means for the important informed consent process to be carried out by your designated agent making those decisions as you would most likely make them.
The DPAHC also provides a means for you to explain how you want to be treated in case: you are permanently incapacitated and/or are imminently facing death and are unable to make your own decisions about suggested life-sustaining treatment or are simply unable to communicate and a decision must be made where you are to be cared for, or your wishes in the use of pain medication.
The DPAHC should also include a provision nominating a conservator of your person. (See information about conservatorships elsewhere on this site.) Because there are times when the appointment of a conservator may be necessary, your selection of a conservatorship is an integral part of this document.

Form" Durable Powers of Attorney for Health Care

California law provides for a statutory form of a DPAHC. However, this form often fails to adequately address all of the crucial decisions likely to be needed when a person is permanently incapacitated. This form and other forms typically fail to provide the needed specificity. For example:

Life or Death Decisions

Such power should be given only after receiving good advice, with a full understanding, and then giving explicit instructions reflecting the signer's wishes.

Fill In The Blanks

These forms have many blanks to complete with no explanations or information about the range of alternatives available. Care must be taken to avoid ambiguity and inconsistency.

Personal Wishes

The form documents may not address your special needs or wishes. In most cases, your doctor will not assist you in completing a form. It is recommended that you have an attorney knowledgeable about the important medical and legal issues involved prepare your DPAHC.

Appointment of Conservator

This provision is often absent from the form documents. While it is hoped that the Power of Attorney will replace the need for a conservator, there are certain instances where such appointment is mandated or where the appointment will protect you. In those cases, the court will look to carry out your appointment rather than appoint someone you may not wish to have appointed. If the form document fails to provide for your wishes, the court could appoint a relative or a stranger who you do not wish to serve in this capacity.

Summary

A carefully drafted Durable Power of Attorney for Health Care will assist the "surrogate" decision-making should incapacity strike. The DPAHC may also avoid the need for a Conservatorship of the person. Each individual has the right to choose who will act on his or her behalf.

A properly drafted DPAHC is one of the least expensive forms of insurance a person can buy. Often more important than documents specifying how property is to be disposed of upon death, the DPAHC can ensure for each person personal dignity and bodily integrity by providing evidence on how decisions are to be made about our health care while we are still alive. Anyone who is age eighteen (18) or over should sign such a document.

Please call me at 456-5547 if you have questions or need to speak with me about your current documents or to create documents reflecting your wishes.

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