Advance Health Care Directives in California

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Now That Medical Professionals are Better Equipped to Save and Extend the Lives of Seriously Ill or Injured Individuals,

Issues Regarding Prolonged Suffering or Delays in the Dying Process Have Become More Prominent

ADVANCE HEALTH CARE DIRECTIVES

IN CALIFORNIA

Scott P. Schomer Los Angeles Estate Planning and Elder Law Attorney

http://www.schomerlawgroup.com/

Advance Directives in California www.schomerlawgroup.com 2

Advances in medical care and medical technology today has increased the

likelihood of survival for the seriously ill or severely injured. Now that medical

professionals are better equipped to save and extend the lives of seriously ill or

injured individuals, issues regarding prolonged suffering or delays in the dying

process have become more prominent.

Everyone has the right to consent to, or refuse, any or all medical treatment. If

you are too sick or injured to express your consent or refusal, what happens

then? This can be a reasonable concern and it can easily be handled an advance

directive.

WHAT IS AN ADVANCE DIRECTIVE?

An "advance health care directive" is a legal document that lets your physician,

family and friends know your health care

preferences, including the types of special

treatment you may want or may not want at

the end of life. It can also indicate your

desire for diagnostic testing, surgical

procedures, cardiopulmonary resuscitation

(CPR) and organ donation.

An advance health care directive allows you to make these decisions now, and

thereby ensure the quality of life that is important to you. It also keeps your

family from needing to "guess" your wishes or having to make critical medical


care decisions for you, when they will no doubt be under great stress or in

emotional turmoil.

WHAT RIGHTS DO I HAVE TO DECIDE MY OWN MEDICAL

CARE?

In 2000, California passed the California Health Care Decisions Law, which

consolidated all previous advance directives into the new Health Care Directive

(AHCD). Advance health care directives give you legal control over your own

health care treatment in the event you are unable to make decisions for yourself.

WHAT IS THE ADVANCE HEALTH CARE DIRECTIVE (AHCD)?

The AHCD allows you to either appoint a health care agent or prepare specific

instructions for health care, or both. With an AHCD, you will be prepared in the

event you become incapacitated.


If you appoint a health care agent, that person will have the legal authority to

make health care decisions on your behalf. You can also create written

instructions for your future healthcare, in case you can no longer speak for

yourself. Of course, you could create an AHCD that does both – appoints a

health care agent, and provide that agent with written instructions regarding

your health care choices. You can also designate which medical doctor you wish

to act as your primary physician.

CHOOSING A HEALTH CARE AGENT

When considering who to appoint as your health care agent, you should choose

a person whom you trust, such as a family member, spouse, or close friend. That

person should be familiar with your personal values and beliefs. It is also a good

idea to choose some who lives near you, if possible, in the event they need to be

involved in your treatment plan for an extended period of time. Be sure that you

discuss your wishes regarding your health care with your chosen agent, after

making sure that person is willing to act in that capacity.

RESTRICTIONS ON WHO CAN BE A HEALTH CARE AGENT

California law excludes certain people from acting as your health care agent.

Your agent cannot be your supervising health care provider or the operator of a

residential care facility in which you reside. Nor can your agent be an employee


in that residential care facility unless he or she

is a relative or spouse. It is also a good idea

to select at least one alternate person to act

as your agent. That way, if your first choice is

unable or unwilling to take on the role, you

will already have an alternative choice.

WHAT KINDS OF DECISIONS CAN MY HEALTH CARE AGENT MAKE ON

MY BEHALF?

California’s AHCD allows you to give your health care agent as broad or as

limited powers as you choose. Those powers can include the right to choose

health care providers and institutions, the right to refuse or consent to

treatment, the right to access your medical records, and the right to withdraw or

withhold life-sustaining treatment. You also have the option to allow, or restrict,

your agent to make certain decisions after your death, such as organ donation,

authorization to perform an autopsy and how to dispose of your remains.

WHEN DOES AN AGENT’S AUTHORITY BEGIN?

Generally, your health care agent can begin making decisions on your behalf only

when you are no longer able to do so. However, you can stipulate in the AHCD

that your health care agent has immediate authority to make decisions.


IS AN AGENT RESPONSIBLE FOR MEDICAL BILLS?

A health care agent is not responsible for any of your medical bills, simply

because he or she is named in your AHCD. The only exception is if that person

happens to already be legally responsible for your debts. Also, the AHCD does

not give your health care agent the authority to make financial decisions for you.

That authority would need to come from another legal document, such as a

Durable Power of Attorney for Assets Management.

HOW IS THE ADVANCE HEALTH CARE DIRECTIVE EXECUTED?

In order to execute an AHCD, you must be at least 18 years of age and mentally

competent. You need two qualified adult witnesses or a notary public to sign the


AHCD, acknowledging that you are competent and acting under your own

volition. Your witnesses cannot be your health care agent, or the alternate, your

supervising health care provider, or an employee or operator of a health care

facility. One witness must not be a family member and must not be entitled to

any part of your estate.

CAN AN AHCD BE MODIFIED OR REVOKED?

You may change or revoke your AHCD at any time. To specifically revoke a

health care agent, you will inform your supervising health care provider. If you

wish to modify or revoke your health care instructions, you may do so at any

time and in any manner that communicates your intent.

Executing a new AHCD automatically revokes your previous AHCD. However, to

avoid confusion, you should notify everyone who has a copy of your AHCD of

any modifications or revocations. An AHCD will remain valid unless you either

revoke it, execute a new one, or specify a date when the AHCD expires.


About the Author

Scott P. Schomer is a graduate of Boston University School of Law and

is a frequent lecturer on estate planning and elder law issues, having

appeared on local and national television discussing the importance of

estate planning. Scott has an extensive litigation background and has

over the years obtained in excess of twenty five million dollars in

judgments and verdicts for his clients. Scott is a member of the Probate

Volunteer Panel and has been appointed by the Los Angeles Superior

Court to represent numerous parties in contested proceedings in the

probate court. Scott has also served as Judge Pro Tempore of the Los

Angeles Municipal Court and also been appointed by the court as an

expert in probate matters. Because of his extensive experience, Scott brings a unique

perspective to helping protect his clients.

SCHOMER LAW GROUP

Schomer Law Group is a professional law corporation that specializes in elder law, probate,

wills, trusts and conservatorships. We counsel clients on the unique legal issues relating to

advancing age. Whenever possible, we prefer to help clients plan for the future, avoid probate,

minimize taxes and solidify their legacy. We also help clients plan for possible incapacity and

long-term care. We help our clients deal with issues of aging with independence and dignity. In

addition to estate planning, our firm has considerable experience helping victims of elder

abuse. Our firm has aggressively pursued remedies and recovered assets belonging to our

elderly clients where unscrupulous individuals have taken advantage of the elderly because of

diminished capacity or other impairments.

8740 South Sepulveda Blvd, Ste 107 Los Angeles, CA 90045 Phone: (310) 337-7696 Website: www.schomerlawgroup.com

http://www.schomerlawgroup.com/