By Robert J. Silverman, Attorney at Law
INTRO: Quite often, we hear people say things like: “the most important thing is our health” and “if you have your health, you have everything”. It is so true, yet nevertheless, Advance Health Care Directives tend to be the “poor step-child” of estate planning, typically taking a distant back seat to trusts, wills and powers of attorney. Accordingly, I thought it might be helpful for this article to focus strictly upon Advance Health Care Directives. Hopefully, you will find informative the basics and nuances described in the article. As always, if I can advise and/or assist you or others you know, don’t hesitate to contact me. Thanks, Rob.
Of all of the core estate planning documents I draft for clients, the Advance Health Care Directive (AHD) is arguably the most important. After all, nothing is more essential than our health. Yet, the other three core estate planning documents – Trust, Will, Durable Power of Attorney – all tend to get more attention.
Simply put, if you are a legal adult (at least 18 years old), you should have an AHD. Why? What does an AHD accomplish? First and foremost, it enables you to appoint someone you trust to communicate with health care providers about your health care needs if you are ever unable to do so yourself.
Additionally, your preferences about many health care issues are inserted into the document as “directives” that can be carried out by your agent. These may include, among others, decisions about whether or not you would want your agent to have the discretion, under certain circumstances, to withhold or withdraw “heroic measures” to keep you alive; organ donations; autopsy; disposition of remains.
It is awkward for many people to discuss the above-referenced kinds of directives with family and/or friends. But, if your agent ever needs to invoke these AHD provisions, it can be a huge source of comfort and relief to your family and friends that your agent knows that your wishes are being honored.
Some people fear they are ceding valuable control by doing an AHD. The fact is that you can revoke the AHD and establish a new one, with a different agent, any time and as many times as you wish. Furthermore, the law in California is crystal clear that as long as you are capable of articulating your health care needs to physicians and other providers, your decisions control and your agent has absolutely no authority.
The real danger is if you become incapacitated and you do not have an AHD in place. In that instant, court proceedings could be initiated, resulting in someone being appointed to make your health care decisions whom you would never have chosen and don’t want.
In many states, different (and sometimes multiple) documents are legislated and/or used commonly, including Living Wills, Medical Directives, Health Care Powers of Attorney, Health Care Proxies, and others. For many years, California law provided for the use of a Durable Power of Attorney for Health Care Power (DPAHC) but there were also other documents in use with various titles, including Natural Death Act and Directive to Physicians. Then, in 2000, California’s AHD law was enacted to consolidate the various forms that indicated health preferences. Generally, validity requires that the principal’s signature on an AHD be notarized or witnessed by two individuals.
If you have an older DPAHC, it is not, per se, invalid; however, you should be on alert about a few things. One is that for many years, a DPAHC was effective for only seven (7) years after executing it. So, some people believe they still have an effective document but it may, in fact, be expired.
Another word of caution is that in 2003, HIPAA, a federal privacy law became effective, under which strict rules govern when and to whom a health care provider may disclose “protected health information”. All properly drafted AHDs should have a HIPAA Release provision (or alternatively, an applicable HIPPA release form attached to the AHD), specifically authorizing health care providers to turn over your medical records to your appointed AHD agent. NOTE: shockingly, some of the most common forms (pre-printed by large organizations) still do not contain a HIPAA release.
A word to the wise – if you have a valid AHD, and you only appointed one agent, consider establishing a new one in which you designate a primary agent and at least one alternative agent. Without an alternate agent listed, if you and your agent (e.g. spouse or child) are in a common accident or your agent is for some reason unable or unwilling to serve upon your incapacity, nobody you trust will have legal authority to make your medical decisions on your behalf.
This article is intended to provide information of a general nature, and should not be relied upon as legal, tax, financial and/or business advice. Readers should obtain and rely upon specific advice only from their own qualified professional advisors. This communication is not intended or written to be used, for the purpose of: i) avoiding penalties under the Internal Revenue Code; or ii) promoting, marketing, or recommending to another party any matters addressed herein.
Mr. Silverman is an attorney with R. Silverman Law Group, 1855 Olympic Blvd., Suite 125, Walnut Creek, CA 94596; (925) 705-4474; firstname.lastname@example.org.
ESTATE & TRUST ADMINISTRATION: Need to find an experienced estate & trust administrator in Walnut Creek CA? Contact Robert Silverman at 925-705-4474 for legal advice on a Revocable Living Trust, “Summary” Estate Administration, Trust/Estate Beneficiary Representation and Will & Trust Disputes.