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Advance Healthcare Directive

Advance Healthcare Directive

Introduction to Advance Health Care Directives (AHCD) California law gives you the ability to ensure that your healthcare wishes are known and considered if you become unable to make these decisions yourself. The following are answers to commonly asked questions about Advance Directives:

What is an Advance Health Care Directive?

An Advance Health Care Directive (AHCD) is the best way to make sure that your healthcare wishes are known and considered if for any reason you are unable to speak for yourself. Completing a form called an Advance Health Care Directive allows you, under California law, to do either or both of two things:

First, you may appoint another person to be your healthcare agent. This person (who may also be know as your attorney-in-fact) will have legal authority to make decisions about your medical care if you become unable to make these decisions for yourself.

Second, you may write down your healthcare wishes in the AHCD form – for example, a desire not to receive treatment that only prolongs the dying process if you are terminally ill. Your doctor and your agent must follow your lawful instructions.

Is an Advance Health Care Directive different from a living will?

The AHCD is now the legally recognized format for a living will in California. It replaces the Natural Death Act Declaration. The AHCD allows you to do more than the traditional living will, which only states your desire not to receive life-sustaining treatment if you are terminally ill or permanently unconscious. An AHCD allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation.

Unlike a living will, an AHCD also can be used to state your desire about healthcare in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill. In addition, an AHCD allows you to appoint someone you trust to speak for you when you are incapacitated.

You do not need a separate living will if you have already stated your wishes about life-sustaining treatment in an AHCD.

Is an Advance Health Care Directive different from a Durable Power of Attorney for Health Care?
The AHCD has replaced the Durable Power of Attorney for Health Care as the legally recognized document for appointing a healthcare agent in California. The AHCD allows you to do more than a Durable Power of Attorney for Health Care. An AHCD permits you not only to appoint an agent, but also to give instructions about your own healthcare. You can now do either or both of these things.

What if I have already executed a Durable Power of Attorney for Health Care or a Natural Death Act Declaration. Is it still valid?

Do I have to complete a new Advance Health Care Directive?

All valid Durable Power of Attorney for Health Care and Natural Death Act Declarations remain valid. Thus, unless your existing Durable Power of Attorney for Health Care has expired, you do not have to complete a new AHCD. A Durable Power of Attorney for Health Care executed before 1992 has expired and should be replaced. Because the new AHCD gives you more flexibility to state your healthcare desires, you may wish to complete the new form even if you previously completed a Durable Power of Attorney for Health Care or Natural Death Act Declaration. At a minimum, you should review your existing Durable Power of Attorney for Health Care or Natural Death Act Declaration to make sure it has not expired and that it still accurately reflects your wishes.

Who can complete an Advance Health Care Directive?

Any California resident who is at least 18 years old (or is an emancipated minor), of sound mind, and acting of his or her own free will can complete a valid AHCD.

Do I need a lawyer to complete an Advance Health Care Directive?

No. You do not need a lawyer to assist you in completing an AHCD form. The only exception applies to individuals who have been involuntarily committed to a mental health facility who wish to appoint their conservator as their agent.

Who may I appoint as my healthcare agent?

You can appoint almost any adult to be your agent. You can choose a member of your family, such as your spouse or an adult child, a friend, or someone else you trust. You can also appoint one or more alternate agents in case the person you select as your healthcare agent is unavailable or unwilling to make a decision. (If you appoint your spouse and later get divorced, the AHCD remains valid, but your first alternate agent will become your agent.)

It is important that you talk to the people you plan to appoint to make sure they understand your wishes and agree to accept this responsibility. Your healthcare agent will be immune from liability as long as he or she acts in good faith.

The law prohibits you from choosing certain people to act as your agent(s). You may not choose your doctor, or a person who operates a community care facility (sometimes called a board and care home) or a residential care facility in which you receive care. The law also prohibits you from appointing a person who works for the health facility in which you are being treated, or the community care or residential care facility in which you receive care, unless that person is related to you by blood, marriage or adoption, or is a co-worker.

Can I appoint more than one person to share the responsibility of being my healthcare agent?
It is recommended that you name only one person as your healthcare agent. If two or more people are given equal authority and they disagree about a healthcare decision, one of the important purposes of the AHCD – to identify clearly who has authority to speak for you – will be defeated. If you are afraid of offending people close to you by choosing one over another to be your agent, ask them to decide among themselves who will be the agent, and list the others as alternate agents.

I want to provide more specific healthcare instructions than those included on this form. How do I do that?
You may write detailed instructions for your healthcare agent and physician(s). To do so, simply attach one or more sheets of paper to the form, write your instructions, write the number of pages you are attaching, and sign and date the attachments at the same time you have the form witnessed or notarized. More specific instructions are available at the California Medical Associations website at http://www.cmanet.org.

How much authority will my healthcare agent have?

If you become unable to make your own health care decisions, your agent will have legal authority to speak for you in healthcare matters. Physicians and other healthcare professionals will look to your agent for decisions rather than to your next of kin or any other person. Your agent will be able to accept or refuse medical treatment, have access to your medical records, and make decisions about donating your organs, authorizing an autopsy, and disposing of your body should you die.

If you do not want your agent to have certain of these powers or to make a certain decision, you can write a statement in the AHCD form limiting your agent’s authority. In addition, the law says that your agent cannot authorize convulsive treatment (i.e., electroconvulsive therapy or ECT), psychosurgery, sterilization, abortion, or placement in a mental health treatment facility.

The person you appoint as your agent has no authority to make decisions for you until you are unable to make those decisions yourself, unless you choose to allow your agent to make those decisions for you immediately.

When you become incapacitated, your agent must make decisions that are consistent with any instructions you have written in the AHCD form or made known in other ways, such as by telling family members, friends or your doctor. If you have not made your wishes known, your agent must decide what is in your best interests, considering your personal values to the extent they are known.

What should I tell my family, my healthcare agent, and my doctors?

One of the most important parts of completing an AHCD is the conversations you have about it with your loved ones and your physicians. You should talk about: your personal values and what makes living meaningful to you, including your current medical condition and decisions you may foresee in the future, specific concerns or wishes you may have regarding life support or aggressive interventions, hospice or long-term care; what concerns you most about death or dying; and how you would want to spend the last month of your life. It is recommended, although not always possible, that such a discussion include both your physician(s), and your healthcare agent (and alternate agent(s)).

Tell your loved ones that you have completed an AHCD and what you have said in it, especially if you have selected a healthcare agent. Your AHCD will likely go into effect during a period of crisis for them. It can help ease their burden to know that you have made some of these decisions in advance. In addition, they should know in advance who is to speak for you in making medical decisions and where copies of your AHCD can be found. Remind them that their role is to make sure that your wishes are communicated and that those wishes guide their decision-making.

Will my healthcare agent be responsible for my medical bills?

No, not unless that person would otherwise be responsible for your debts. The AHCD deals only with medical decision-making and has no effect on financial responsibility for your healthcare. Please note, however, that unless you have made other arrangements, your agent may be responsible for costs related to the disposition of your body after you die. Consult an attorney regarding how your financial affairs should best be handled.

For how long is an Advance Health Care Directive valid?

An AHCD is valid forever, unless you revoke it or state in the form a specific date on which you want it to expire.

What should I do with the Advance Health Care Directive form after I fill it out?

Make sure that the form has been properly signed, dated, and either notarized or witnessed by two qualified individuals. (The form includes instructions about who can and cannot be a witness). Keep the original in a safe place where your loved ones can find it quickly. Give copies of the completed form to the people you have appointed as your agent and alternate agent(s), to your doctor(s) and health plan, and to family members or anyone else who is likely to be called if there is a medical emergency. You should tell these people to present a copy of the form at the request of your healthcare providers or emergency medical personnel.

Take a copy of the form with you if you are going to be admitted to a hospital, nursing home or other healthcare facility. Copies of the completed form can be relied upon by your agent and doctors as though they were the original.

What if I change my mind after completing an Advance Health Care Directive?

You can revoke or change an AHCD at any time. To revoke the entire form, including the appointment of your agent, you must inform your treating healthcare provider personally or in writing. Completing a new AHCD will revoke all previous directives. In addition, if you revoke or change your directive, you should notify every person or facility that has a copy of your prior directive and provide them with a new one.

You should complete a new form if you want to name a different person as your agent or make other changes. However, if you need only to update the address or telephone numbers of your agent, or alternate agent(s), you may write in the new information and initial and date the change. Of course, you should make copies or otherwise ensure that those who need this new contact information will have it. You should make a list of the people and institutions to whom you give a copy of the form so you will know whom to contact if you revoke the AHCD, update contact information or make a new one.

I have reached a point in my life that I don’t want the paramedics to give me CPR. Will this Advance Health Care Directive keep this from happening?

If the paramedics see your AHCD before they start resuscitative efforts, and the AHCD clearly instructs them not to start these efforts, they probably will not start resuscitation. The best approach is to complete the Prehospital Do Not Resuscitate (DNR) form and obtain a Do Not Resuscitate EMS medallion approved by California’s Emergency Medical Services Authority. You may order copies of the DNR form (which includes instructions on ordering the medallion) from CMA publications. See http://www.cmanet.org for more information.

Is my Advance Health Care Directive valid in other states?

An AHCD that meets the requirements of California law may or may not be honored in other states, but most states will recognize an AHCD that is executed legally in another state. If you spend a lot of time in another state, you may want to consult a doctor, lawyer, or the medical society in that state to find out about the laws there.

Can anyone force me to sign an Advance Health Care Directive?

No. The law specifically says that no one can require you to complete an Advance Health Care Directive before admitting you to a hospital or other healthcare facility, and no one can deny you health insurance because you choose not to complete an AHCD.

Where can I get more information about the Advance Health Care Directive?

Your doctor probably can provide you with more information. However, you should talk to a lawyer if you want legal advice.

For more information about end-of-life medical decisions, go to http://www.finalchoices.calhealth.org, the website for the California Coalition for Compassionate Care.

The booklet Finding Your Way is a useful guide to thinking about and discussing these issues. To get a copy, contact Sacramento Healthcare Decisions, 3400 Data Drive, Rancho Cordova, CA 95670 or (916) 851-2828.

Where can I get an AHCD form?

For a free Advance Health Care Directive form, download here.