Health care decisions include whether to approve or to disapprove diagnostic tests, surgical procedures, and medication, and other forms of health care. Patients make their own health care decisions if they both can understand the nature and consequences of a health care decision – including understanding the significant benefits, risks and alternatives — and can communicate a decision. However, if a patient loses their “capacity” to make health care decisions then decisions are made by the patient’s agent, conservator or a designated surrogate, as relevant.
A person with capacity can appoint an agent to make health care decisions. An Advance Health Care Directive (“AHCD”) is used to appoint an agent, to designate a primary physician (optional), and to give specific health care instructions. There are various different AHCD forms, such as, the California Medical Association (“CMA”) AHCD, the Hospice AHCD, and the California Statutory AHCD. The CMA and Hospice AHCD invite the owner of the AHCD to consider their personal values and what activities and abilities allow for life to be enjoyable. Providing such personal insights to one’s agent better enables the agent to evaluate the benefits, risks and alternatives to proposed health care treatment, including surgeries and artificial life support.
Agents are required to make health care decisions, “in accordance with the principal’s individual health care instructions, if any, and other wishes to the extent known to the agent.” Otherwise, lacking patient instructions and wishes, such decisions are to be made in the “principal’s best interest”, taking into consideration the “principal’s personal values to the extent known to the agent”. Therefore, a candid and thorough conservation between a person and their possible agents improves the likelihood of a favorable outcome. People should select agents whom they expect to comply with their wishes.
As an immediate safeguard, a patient with capacity may designate a temporary health care surrogate to make health As an immediate safeguard, a patient with capacity may designate a temporary health care surrogate to make health care decisions while the patient is in hospital, ill or being treated. To designate a surrogate, a patient must either do so in writing or personally inform their primary physician (or the person acting as such) of the designation; the designation then becomes part of the patient’s medical chart. A surrogate’s designation ends once the patient is discharged from hospital, recovers from illness or completes their medical treatment, as relevant. However, a surrogate designation may not exceed 60 days.
What happens if someone has an Agent under an AHCD and also has either a designated surrogate or a court appointed conservator? The surrogate has first priority to make decisions during the period of the surrogate’s temporary authority. Thereafter, the authority of the agent resumes unless the AHCD was revoked.
With that exception, the authority of an agent under an AHCD has priority over the authority of any other person, including a conservator or a spouse. The primary care provider should receive a copy of the AHCD, and a Health Insurance Portability & Accountability Act (HIPAA) release regarding confidential medical information, to keep them on file so that such documents are available if and when needed.
A patient can revoke the authority of their agent or their surrogate for health care decisions so long as the patient has capacity. Such revocation can either be in writing signed by the patient or by the patient personally telling their primary physician.
People may wish to reconsider their health care instructions and wishes if and when significant changes in their health, life circumstances and wishes occur. Such reconsiderations should involve additional conversations with agents and perhaps a new AHCD with revised instructions.
The foregoing is not legal advice. If needing legal guidance regarding health care decision planning consult an estate planning attorney.
Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.