May 18, 2011

Advance Health Care Directive

Here are some commonly asked quesitons about advance health care directives (California's version of a living will):

1. What is an advance health care directive (AHCD)?

A legal document in which a person, the principal, appoints another person, the agent, to act on the principal’s behalf in making medical decisions should the principal ever become incapacitated.

For example, Peter is concerned about his future health because he is a professional race car driver. Peter appoints Allen as his agent to make health care decisions for him should he ever become incapacitated. If Peter ever is in an accident and becomes incapacitated, namely a coma, then Allen would step in and make health care decisions for Peter as dictated by Peter through Allen.

2. Who can write an AHCD?

An adult having capacity has the right to give an individual health care instruction. Prob C §4670. An adult is a person 18 or older. Whereas the Probate Code defines capacity as “a person's ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.” Also, there is a rebuttable presumption that a person has capacity to draft an AHCD. Prob C § 4657. The end result is that the vast majority of adults can write an AHCD.

3. Does an AHCD require a notary?

No, an AHCD may be executed via witnesses or a notary. Prob C § 4674. However, the following four types of people cannot serve as witnesses:

a. The patient's health care provider;
b. An employee of the patient's health care provider;
c. The operators or employees of community care facilities and residential care facilities for the elderly; and
d. The agent. Prob C § 4674.

4. Why would I write an AHCD?

It is reasonable to assume that the majority of people would like to be in ultimate control of their medical decisions. By executing an AHCD, a person is afforded the opportunity to make future decisions even if they are not then able to do so.

If a person does not write an AHCD and becomes incapacitated, then a conservatorship of the person is needed in order to make medical decisions for them. In short, a conservatorship of the person is costly, because it is court-supervised, public, for a conservator needs to be appointed through the judicial process and avoidable, since an AHCD can substitute for a conservatorship of the person. In light of this, most people write AHCDs.

5. Who can serve as the agent?

A person 18 or older who has capacity can be appointed as a health care agent. However, the following 3 types generally may not be appointed as agent:

a. The supervising health care provider or an employee of a health care institution where the principal is receiving care; 
b. An operator or employee of a community care facility where the principal is receiving care; and 
c. An operator or employee of a residential care facility for the elderly where the principal is receiving care. Prob C § 4659.

6. If selected, am I obligated to serve as somebody’s agent?

No, a health care agent is free to decline to serve as somebody’s agent. Prob C § 4688.

7. What powers does the agent have?

The agent may make health care decisions for the principal to the same extent the principal could make health care decisions if the principal had the capacity to do so. Prob C §4683. Thus, an agent can grant consent, refuse consent, or withdraw consent to health care for the principal. Prob C §4617.

8. What powers does the agent not have?

The agent does not have the power to commit the principal to a mental health treatment facility or to authorize convulsive treatment, psychosurgery, sterilization or abortion. Prob C §4652.

Furthermore, the agent may not engage in a mercy killing or assisted suicide. Prob C §4653.

9. When does an AHCD become effective?

An AHCD usually becomes effective when the principal loses capacity. Prob C §4682. The principal can make the AHCD effective immediately but no reasonable person does this.

For example, if Peter appoints Allen as his health care agent but has capacity when he makes this appointment, Allen is not allowed to make health care decisions for Peter. However, if Peter were to be involved in a car accident and fall into a coma, he would lose capacity. Allen would then be allowed to make health care decisions for Peter.

10. Does an AHCD automatically expire on death?

Surprisingly an AHCD does not automatically expire on death unlike other power of attorney documents. An AHCD may grant the agent the power to dispose of the remains, authorize an autopsy and donate all or part of the principal's body for transplant, education, or research purposes. Prob C §4683(b).

11. Am I required to write an AHCD?

No, a health care provider cannot require a patient to possess an AHCD before administering treatment. Prob C §4677.

13. Are health care providers required to honor an AHCD?

Yes, a health care provider must comply with an individual health care instruction unless either it is contrary to the policy of the institution, and that policy has been adequately conveyed to the agent or the patient or it requires medically futile care or health care that is contrary to generally accepted standards in the health care community. Prob C §§4733-4735.

14. Can the agent access the principal’s medical records?

Yes, unless limited by the AHCD, the agent has the right to receive information about the principal's medical condition from all treating health care providers, and is authorized to review the principal's medical records and consent to their disclosure. Probate C §4678.