What is an Advance Health Care Directive? How is it different from a Living Will or a Power of Attorney for Health Care?
A Living Will is a legal document that states the types of medical treatments you would or would not like to receive to keep you alive, and can include other medical decision preferences or guidance, such as for pain management or organ donation.
A Power of Attorney for Health Care is a legal document in which you name a person to make medical decisions for you in the event you are unable to do so. Some states have slight variations in the name of this form.
In California, an Advance Health Care Directive is defined in California Probate Code Section 4605 as a combination of a Power of Attorney for Health Care and/or a Living Will. These can be split up into two separate documents, or, as is more often the case, combined into a single document.
The California Legislature has greatly simplified the Advance Health Care Directives by creating a statutory form (a form set forth in California Probate Code Section 4701). This form is designed to be very user-friendly and contains directions to walk you through the form when you fill it out.
Most medical providers will provide these forms free of charge if you ask about them, and if you follow the prompts and input the information/responses correctly, it will be effective the same as an Advance Health Care Directive prepared by an attorney. Please note, if you have any questions or concerns about what the terms in these forms mean or how to fill out the form, you should consult with a licensed estate planning attorney for further advice and/or information.
Pursuant to California Probate Code Section 4676, if you have a living will, power of attorney for health care, or some sort of advance health care directive that was executed in a state other than California and in compliance with the laws of the state where it was executed, then that document will be valid and enforceable in California.
A. What authority can be granted with an Advance Health Care Directive?
The authority granted by an advance health care directive is usually general authority to make medical decisions, though you may wish to limit the authority to make certain decisions.
An important aspect of an advance health care directive is the decision about life-sustaining treatment. Most people do not want to be kept alive indefinitely, but this is an option in an advance health care directive.
You may also set forth your wishes as to the disposition of your remains.
B. Who should my Agent be?
Your agent should be someone that you trust, and preferably someone within the same county as you. It is often difficult for a distant agent to properly assist you in your affairs. If this person is unable to check on your in a care or medical facility, the agent may not realize that you are receiving poor treatment and you may not be in a position to convey that to the agent.
Many people will appoint their spouse or children as an agent, however, if there is a possibility of conflict, it is best to appoint a more neutral person to this role. If you do not have any person available for this role, there are people licensed by the State of California to assist people in your situation and they are called Professional Fiduciaries.
C. Is there a low-cost option for an advance health care directive?
Yes, there is a form referred to as a Statutory Advance Health Care Directive which is printed in Probate Code Section 4701. Many online resources have replicated this document which is available at minimal cost and is fairly straightforward in its form. Additionally, many medical providers will provide you with a free advance health care directive form so that they can have it in their file.
While this may not be the best decision in your particular scenario, the Statutory Advance Health Care Directive, if properly executed, will be effective like any other advance health care directive.
D. What is the difference between a Principal and an Agent?
A principal is the person creating the power of attorney--it is the person who is appointing an agent to act on his or her behalf.
An agent is the person acting on behalf of the principal--it is the person who is appointed to act on behalf of the principal.
E. When is an Advance Health Care Directive Effective?
An advance health care directive may be effective immediately, or effective upon the occurrence of some future event. Typically, if it is effective upon the occurrence of some future event, the event is your becoming incapacitated.
The advance health care directive is effective until your death. Upon your death, however, the agent under the advance health care directive may still have authority to dispose of your remains, to order an autopsy, or to otherwise obtain medical records to fulfill his or her duties as your agent.
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If you are concerned about what type of power of attorney you may need, you should consult with one of our experienced estate planning attorneys to better understand what would be an appropriate fit for your situation.
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