What is an Advance Health Care Directive and why is it important?
Most comprehensive estate plans consist of a revocable or irrevocable trust (type varies based on needs and goals), a will, an advance health care directive, and what’s called a durable power of attorney for finances and property management. For an explanation of the main difference between a will and trust and why both are needed, see Planning for Young Families – Need a Will, a Trust, or both? For an explanation of what a durable power of attorney for finances and property management is, see What is a Durable Power of Attorney and why is it important?
Here, I will explain in brief terms what an advance health care directive is, and why it is necessary, but I must first cite some concerning statistics: studies have shown that medical bills are the biggest cause of U.S. bankruptcies, and about one quarter of all Medicare spending goes towards care for people during their last year of life.
The simple take-away from these concerning statistics is that there is a risk that your family could go bankrupt from costly medical bills specifically arising from the high costs of care directed to sustaining you or your family member’s life in your or their last year of life. One way to reduce this risk is to ensure that you and your family members’ wishes are put into writing.
The California statutory advance health care directive contains the following options related to end-of-life decisions:
“I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below:
(a) Choice Not to Prolong Life
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR
(b) Choice to Prolong Life
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.”
This is not the only decision that one makes when executing an advance health care directive, but as you can see, indicating this preference alone (assuming the directive is properly executed) will greatly influence how you or your family member’s health care decisions are made under end-of-life circumstances. As is evident, this may be one way to help reduce or avoid unnecessary high medical bills or a bankruptcy scenario that could have been avoided if you or your family member’s wishes were not to prolong life under the circumstances.
In addition to making end-of-life decisions in your directive, an advance health care directive requires you to designate someone you trust as your “agent” to make health care decisions for you in the event you are incapacitated or otherwise unable to make decisions for yourself. Most married couples designate their spouse as their primary agent along with an alternate agent in the event their spouse is unwilling or unable.
Under California law, a “health care decision” includes selecting and discharging health care providers or institutions; approving or disapproving diagnostic tests, surgical procedures, and programs of medication; or directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care. (Cal. Prob. Code § 4617.) The advance health care directive document makes clear who you want to make decisions for you and gives your agent some guidance, which also minimizes the chance of disputes if family members disagree about a course of action.
Finally, both an advance health care directive and durable power of attorney for financial and property management greatly reduce the likelihood that a court-ordered conservatorship (a highly entailed legal process) will become necessary in the event you or your family member becomes incapacitated.
It's always best to plan for the future. Feel free to contact our office at (805) 668-4688 if you would like to prepare an estate plan, including an advance health care directive.
This article is not exhaustive. It merely discusses general principles pertaining to estate planning. The information contained in this article is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved. Accordingly, the information in this article is provided with the understanding that the author and publisher is not herein engaged in rendering legal advice. As such, it should not be used as a substitute for consultation with an attorney. Before making any decision or taking any action, you should consult a licensed attorney.