Durable Power of Attorney for Health Care/Advance Directives

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An Advanced Health Care Directive (also known as Power of Attorney for Health Care) allows you to appoint a healthcare agent to make healthcare decisions for you (the principal). Your agent only makes decisions for you if you have lost capacity, unless you state otherwise in the document.

Taking care of business – Planning for incapacity

Incapacity means the inability to make rational decisions regarding one’s financial affairs and personal care. Incapacity can befall anyone who suffers from a mentally debilitating illness or enters into a coma, but it largely affects seniors coping with dementia. If not planned for in advance, incapacity will create a myriad of problems for the incapacitated individual and their loved ones.

For example, if a person who has lost capacity never appointed anyone to make health decisions on his or her behalf, then the person’s medical wishes may not be known to doctors and family members. As such, the best way to deal with incapacity is to plan for it while one is still of sound mind.

Identifying what is important to you

The first steps in planning for incapacity is to think about the issues that may arise. What kind of treatments would I want or not want to be given?  Would I want to be put on life-sustaining medical equipment?  Who do I trust to make decisions for me and would be a backup for that person?  This is the information you will put in your Advanced Health Care Directive.

What happens if I don’t have a Health Care/Advance Directive?

If the person is no longer mentally competent, and did not plan for incapacity and doesn’t have a valid Advanced Health Care Directive then a caregiver may need to petition for a Petition for Conservatorship in court and seek a court order to be able to handle that individual’s personal care.

What “rights” will you be giving the agent?

If a person is still mentally competent, he or she can create an Advance Health Care Directive (AHCD). An AHCD enables a competent person to indicate what type of medical treatment he or she prefers and who should speak on his or her behalf. You can give an agent limited or broad powers in an AHCD, from the right to access medical records to the power to make anatomical gifts. You may also specify healthcare instructions you want to be followed. As long as you have capacity, you can update your AHCD by creating a new one or you can revoke it.To make an AHCD valid, you must sign AHCD form that can be found at hospitals and senior legal service or senior information and referral programs. You can order the California Medical Association Advance Health Care Directive Kit or download an advance directive from the California Compassionate Care Coalition web site at http://coalitionccc.org/advance-health-planning.php. CANHR also provides a free Advance Health Care Directive form with instructions.  An attorney does not need to be present to execute an AHCD. Most states (including California) require a person (the principal) to sign the form and have either two adult witnesses sign or in the presence of notary public.

Note: If you executed a Durable Power of Attorney for Health Care (DPAHC) before 1992, it has expired. If you have executed a DPAHC before 2000, when the California Health Care Decisions Law consolidated previous directives into the AHCD, you should check to see that the forms have not expired and still reflect your wishes.

Living Trusts and Other Management Devices

Even if you get a living trust, you should still get a DPA for finances and an AHCD, since a trustee does not have the power to make some medical decisions, on your behalf.

For more information on planning for incapacity, contact CANHR’s Lawyer Referral Service (LRS). The LRS can answer questions and make referrals to qualified attorneys for legal advice.