Medicine has made tremendous progress over the past century. It is now possible to keep a person “alive” on machines and feeding tubes indefinitely – even when there is absolutely no hope that that person will ever wake up or experience quality of life again. Is this what you want? Most of us prefer quality to quantity of life, and do not want to saddle our loved ones with huge medical bills or prolonged anguish. However you feel, do yourself and your loved ones a huge favor by planning ahead. That is, execute an Advanced Health Care directive and also a Durable Power of Attorney.

An Advance Health Care Directive allows you (amongst other things) to express your wishes about health care treatment, to designate a person to make these “health care” decisions for you, and to say whether you choose to be an organ donor. Health care means any care, treatment, service or procedure to maintain, diagnose, or otherwise affect a patient’s physical or mental condition. You can specify whether your agent has complete or limited authority. Your agent may agree/disagree to certain medical tests or medications; more importantly, they would make the decision (hopefully based on your previously expressed wishes) whether you would want things like a feeding tube surgically placed, a tube put down your throat to mechanically breathe for you, or whether you would want CPR done if necessary given your overall medical condition.

Notwithstanding the above, you still make your health care decisions so long as you are able to give informed consent with respect to that decision. Even if you are unable to give informed consent, your agent cannot withdraw life-sustaining medical care if you object and wish it continued. Your agent, CAN, however state that you would never have wanted a certain thing to happen if you had been competent to say so, and make decisions in a way similar to how you would make your own.

Designating a health care agent allows that person to access your confidential health care information. Unless otherwise specified, your agent has the same rights as you to request, receive, examine, copy, and consent to disclosure of any health care information.

Selecting the right person as your health care agent is most important: You need to choose someone who shares as closely as possible your views on health care. The agent needs to be someone who will carry out your wishes even though it may be painful to that person personally. Many people unfortunately choose a child without giving thought to how that person will react if decisions need to be made. Once you have chosen this person and obtained their agreement to fulfill the role, make sure you fully discuss with them what you want. It is much easier for this person if they know they personally are not making the decision but instead carrying out their loved one’s wishes. So choose a person who will be strong and rational, and would not let emotion completely cloud their judgment. Having someone who is nearby is not so important. Hospitals will call your agent. What is important is to nominate at least two alternative agents.

There are three types of Advance Health Care Directive forms available.
First is the Statutory Form. You just fill in the blanks, sign and have two witnesses (or a notary) sign, too. With the statutory form it is difficult to qualify your health care directions. You can, however, attach additional pages to more fully express your directions. Second are Commercially Pre-Printed forms. The California Medical Association provides one. A draw-back is being able to sufficiently express your desires. Third are the attorney-drafted forms. The major advantage here is the assistance provided by the attorney to properly express the client’s wishes. Whatever form you use, make sure to give a copy to your physician, and each of your agents.

Also important is a Durable Power of Attorney. If illness or something else prevents you from making your own competent financial decisions, then you need to have legally designated a certain person to make decisions for you. Often the financial agent is the same person as the health care agent. The financial agent may determine where you may live, how meals are provided, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment. Otherwise, the state will step in and assign somebody (a conservator). Wouldn’t you prefer to select your own agent?

In conclusion, create both an Advanced Health Care Directive and Power of Attorney. Talk with your loved ones, plan ahead, and remove the element of guessing from a potentially painful situation.

Dennis Fordham, Esq.
55 First Street, Suite 207 (Box J)
Lakeport, California 95453 707-263-3235
www.dennisfordhamlaw.com
dennis@dennisfordhamlaw.com

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