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. 

Advance Health Care Directive (living will)

The name Terri Schiavo invokes a visceral reaction for many Americans. In 1990, Terri Schiavo, then 26 years old, suffered a cardiac arrest that deprived her brain of oxygen for 5 minutes before being resuscitated. The consequential brain damage left Terri in a persistent vegetative state ("PVS"), unable to move, communicate, swallow, feed herself, make choices, think, or feel pain or emotion. She failed to regain consciousness for the rest of her life. Experimental surgery and several years of therapy produced no recovery signs.

During Schiavo's unconsciousness, her fate was the source of seemingly endless, contentious, lengthy and expensive litigation, pitting Terri' husband against Terri's family. Ultimately Terri' husband prevailed, after 7 years of litigation, and Terri's feeding tube was removed by court order for the third and final time on March 18, 2005, and she died on March 31, 2005. An autopsy revealed that no treatment could have reversed the brain damage. Goodnough, Schiavo Autopsy Says Brain, Withered, Was Untreatable, New York Times, June 15, 2005, p A1, col 1.

A California version of Terri Schiavo involved Robert Wendland. Conservatorship of Wendland (2001) 26 C4th 519. In 1993, Robert Wendland, 42 was seriously injured in an automobile accident. Emerging from a coma, paralyzed and brain-damaged, he lived on a feeding tube for 2 years before his wife of 15 years, Rose Wendland, requested permission from California courts to be named his conservator (think parent) and to remove his feeding tube. Robert's physicians indicated that he would likely never recover significantly and that he failed to interact with his environment or attempt to communicate with his family and caregivers. Rose Wendland testified that he had told her before the accident that he would never want to live in a state in which he was completely dependent on others for his care. Before involving the courts, Rose Wendland had submitted the case to the ethics committee of Lodi Memorial Hospital West. This ethics committee voted unanimously that Robert Wendland should be allowed to die.

However, Wendland's mother and sister objected to Rose Wendland's petition and argued that Wendland should be kept alive. Ultimately, the California Supreme Court ruled that the conservator, Rose, needed to show clear and convincing evidence in order to remove the feeding tube, which she could not do. Although, Robert died while the case under submission.

Finally, the most famous end-of-life United States Supreme Court case, Cruzan v Missouri Dep't of Health (1990) 497 US 261, involved a then 25 year old automobile accident victim. The resulting injury left Nancy Cruzan in a PVS as well. The accident occurred on January 11, 1983. The Supreme Court case was not decided until June 25, 1990. Later on, Cruzan's feeding tubes were removed on December 15, 1990 and died 11 days later.

These cases illustrate that end of life decision are not exclusive to the mature community and can drag on for years if not properly anticipated. In response, Californians typically draft an Advance Health Care Directive to prepare for such a situation. The document can spell out what end of life procedures the drafter wants done, (i.e. pull the plug) and can also nominate an agent to make health care decisions on the drafter's behalf should the drafter become incapacitated like Terri Schiavo or Nancy Cruzan. It is a painful but necessary decision to draft an Advance Health Care Directive (known as a living will in some jurisdictions) because the consequences of not drafting are very steep. Furthermore, it is very straight-forward to draft one. Most, if not all people, want to die with some dignity, and an Advance Health Care Directive is the optimum instrument to effectuate that sentiment.