Should I Have an Advance Health Care Directive?

Comprehensive estate planning not only provides instructions for others to follow upon a person’s death, but also for times when a person is alive but not “available,” due to some form of medical incapacity.

That’s why one of the key elements in any effective estate plan is a document called an Advance Health Care Directive. Including a directive in your plan means that when you can’t speak for yourself (in the event of a coma, the onset of Alzheimer’s, etc.), your wishes concerning important medical decisions will be followed by those caring for you.

What goes into an Advance Directive?

Assignment of rights. You can assign various rights to another person, such as:

  • The right to change or get rid of a particular healthcare provider
  • The right to consent to or refuse medical care
  • The right to withhold or withdraw life-sustaining treatment

A selected agent to represent you. For such an important responsibility, you should obviously choose a person whom you trust. In your directive, you can be very specific in your instructions or you can leave many decisions up to your agent (such as types of treatment to be provided, organ donation, etc.). If this person agrees to act as your agent, he or she is legally bound to follow your wishes as indicated in the document.

I suggest to clients that they choose alternate agents—at least two—in case their first selection is unavailable or declines to accept this responsibility. Many clients choose a family member or spouse as their agent, but you are free to select anyone you wish, with a couple of exceptions. Your physician can’t be named as an agent, nor can a representative of a nursing facility or other medical facility where you receive treatment.

Your agent will not be legally liable for medical bills or other expenses incurred for treatment. His or her obligation is to carry out the instructions contained in your directive. Should they stray from this obligation or otherwise commit a breach of their duties, they can be sued for whatever harm occurs to you as a result of their actions or inaction. For example, if you state that you do not want life-support withdrawn and the agent proceeds to authorize its withdrawal, he or she may be sued for wrongful death damages.

Living Will. In California, a “Living Will” can be incorporated into your advance directive. If you are diagnosed as terminally ill or have become permanently unconscious, or if it’s possible you may come out of the coma but remain in a vegetative state, your agent can instruct the healthcare provider to withhold artificial life-support or withdraw it entirely (“pull the plug”).

If a living will that directs the withholding/withdrawal of life support is not included in your directive, the treating medical provider is legally required to keep you on life-support.

Financial matters are excluded. An advance health care directive is specifically intended to cover key decisions regarding your medical care. It does not grant authority to your agent to make any financial decisions. That is usually covered in another document called a Durable Power of Attorney.

Other aspects of an advance directive include the following:

  • You can make the directive effective immediately or arrange to have it take place upon your medical incapacity.
  • You can direct your agent to authorize alternative or holistic care, as well as treatment for relief from pain.
  • You can include a Do Not Resuscitate (DNR) provision.

Once it’s created, an advance health care directive is legally valid for an indefinite period of time. But because laws concerning medical care and estate planning change from time to time, it’s advisable to have an attorney review this important document periodically, generally at least once every five years.

Are you in need of legal assistance regarding your estate plan or have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from estate planning, debt collection defense, bankruptcy, family law, as well as DUIs and civil matters.