Are you concerned if you should become incapacitated and are unable to make health care decisions for yourself? Illness and advanced age are not the only reasons why an Advanced Health Care Directive (AHCD) is suggested. Remember Terry Schiavo? She was only 26 years old when she lapsed into a coma. Perhaps you might be going on a trip that has expected dangers. Perhaps you have been diagnosed with an illness, the treatment of which has serious complications. Or, you might engage in extreme sports. If you don’t have an AHCD and you become incapacitated, you may be subject to a conservatorship proceeding that seeks court authorization to make critical decisions on your behalf. If you execute an AHCD, a conservatorship proceeding will be unnecessary as you make the critical health care decisions ahead of time.
Who makes the decision that you are incapacitated and unable to make health care decisions for yourself? Usually our clients choose their physician (and perhaps a second physician) to make that decision. Your doctor must be able to state that you are no longer able to understand or appreciate information relevant to making any decisions concerning your own health care. In addition to your doctor deciding that you are incapacitated, you will need to designate an agent to act on your behalf to make your health care decisions. An agent you choose should be available to your doctor by phone or in-person, so that your health care providers can contact your agent and discuss your care and how to proceed. An agent can be anybody you choose (with a few exceptions) who is over the age of 18. Usually our clients choose their spouse, someone related by blood, marriage or someone who is their domestic partner. A good agent is someone who has the intellectual and emotional fortitude and willingness to carry out your wishes. You should also consider health, life expectancy, decision-making ability of anyone your thinking about to be your agent.
What type of authority can you give your agent? That is entirely up to you. You may want your agent to provide (or not) consent to provide or withdraw supplying food or fluid through your veins, nose, throat or intestine through a feeding tube. Your agent has the authority to receive your medical information. Some of our clients like language granting their agent the authority to place them in a secured facility in the event our client’s subsequent dementia necessitates such a placement. The most common language involves the agent’s power, on behalf of our clients, to either accept or reject medical treatment, including life-sustaining treatment like a breathing machine or ventilator or treatment for relief of pain. You can also give your agent authority to decide if you are to be buried or cremated as well as deciding whether or not parts of your body should be donated for anatomical gifts.
But you don’t need an agent to make many of these decisions on your behalf. You can make these decisions about your future health care at the time you create and execute your health care directive. You can express your wish to about withholding treatment to keep you alive, prolonging your life by artificial means, as well as provisions regarding administering pain medication. You can give specific health care instructions regarding end of life issues. Decisions about anatomical gifts and life support can also be made by you at the time you execute and create your AHCD. Be forewarned however, that unforeseen circumstances may arise that you may have not considered. If you don’t give your agent to act on your behalf in those unforeseen circumstances, your health care providers may not have any alternative but to administer the care you dictated, regardless of its advisability in a particular unforeseen circumstance.
We at East Bay Probate and Trust Administration will do everything we can to make sure you understand the potential consequences of what powers to give your appointed agent, the consequences of the agent you choose, and the consequences of taking certain decisions out of your agent’s control and making those decisions yourself. It is our job to make sure you put into place a health care directive that conforms to your wishes, desires and beliefs. We have the sensitivity, understanding and legal knowledge to make this difficult discussion as painless and productive as possible.