What is an Advance Healthcare Directive and why is it important?
Estate planning has many different forms and the Advance Healthcare Directive is just one of the several that are needed for a comprehensive estate plan.
The Advance Healthcare Directive is designed specifically so that if you’re unable to talk to your medical provider you can have another person step in on your behalf. It’s sometimes called a power of attorney for health care or advance health care directive.
Why should you consider having an Advance Healthcare Directive?
If you don’t have an advance healthcare directive and you become mentally incompetent then it causes quite a bit of problems for your family. According to a University of Pennsylvania study in July of 2017 two out of three adults in the United States do not have an advanced healthcare directive.
The person who takes care of you or makes the medical decision has different names. You might hear it as an agent, health care agent, health proxy, healthcare surrogate, representative, healthcare attorney in fact or patient advocate if you become incapacitated and cannot talk.
Hypothetically, let’s say you got in a car accident and you hit your head and you could no longer talk. The doctors cannot act on your behalf because they have to get direction from some third party and the doctors and hospitals are not allowed to make their own decisions on what you need without your consent or your representative.
What happens if you do not have an advanced healthcare directive and you become mentally incapacitated?
You have to file a court case called a conservatorship, identify someone to be the conservator and go through all the cost and time delay to get a conservatorship through the courts.
Overall, it’s a waste of time and money!
Here is an example of a case that could have been avoided!
There was a case not long ago about Carrie Schreiber. She had a heart attack, got a brain damage because of lack of oxygen and she was diagnosed to have a persistent vegetative state. Her husband and legal guardian or conservator wanted to have the life support removed and her parents objected and they filed lawsuits and there were seven years of litigation before they finally were able to remove her feeding tube. They had 14 appeals, they had five federal cases, they appealed to the supreme court and were denied.
As you can see the problems of not having an advanced health care directive were horrendous in that case.
When you appoint somebody in writing to make your medical decisions, if you’re unable they can accept/refuse/evaluate/choose treatments or procedures and they can hire or fire health care providers. They can approve or disapprove diagnostics and they can approve the withdrawal of life support systems. They also have the ability, with your permission, to donate organs.
This document, Advance Healthcare Directive, is revocable by yourself at any time.
How does an Advance Healthcare Directive become activated?
You make your decisions and then you appoint three alternate representatives. The first representative, if unable and unwilling to act, then you have a second one identified already and a third and that takes care of contingencies so that you don’t run out of agents should you need them. You need to decide whether you want the power of attorney to become effective now or only if you’re mentally incapacitated. There’s not really a downside to having it effective now because the doctors will still talk to you and follow your advice and when picking someone to be your healthcare agent you should make sure that the person will follow your written instructions.
If they have strong views on right to life for example, or on not removing a feeding tube if that’s what you want then that’s not a good person for your agent. In an advance healthcare directive there’s also the right for post-death authority for them to donate organs, take care of funerals, burials, those types of things.
In your healthcare directive you can nominate someone if you need a court supervised conservatorship. Your nominee can be listed and your end-of-life decisions should be indicated so that there’s no question for your agent and medical personnel whether or not to prolong life with a feeding tube or not or when the circumstances you would want to terminate your life if there was no life ability to recover. Another part of the advanced healthcare directive is called palliative and hospice care that’s pain. You indicate whether you don’t want to have drugs, do want to have drugs, don’t want to feel anything.
You can put any kind of wishes that you want that are legal for the agent to request. For example, if you want your cremated ashes scattered at sea or you want to be buried with a predeceased spouse that’s all within the rights of the advanced healthcare director. You could also consider organ donation. Many of my clients say “oh, all my organs are worn out anyway nobody would want them” but that’s not really true. They could be used for transplant use, for therapy research or education, organ donation, etc.
Your directive can also identify your primary physician and secondary physician. I don’t recommend doing that because I think my view is that you should allow your agent to hire and fire medical facilities based on what your particular needs are. This document that gets put in there is a copy, but it is as good as an original. You don’t have to deal with the originals all the time.
To make the document active you need two witnesses or a notary. I always notarize the advanced healthcare directives because I want no question that the person was the person that signed the document. If the patient is in a skilled nursing facility right now then there’s a person called an ombudsman and that ombudsman would have to approve the advanced healthcare directive.
Some of the things you want to consider are if you want CPR, mechanical ventilation, feeding tube, dialysis, antiviral, hospice/palliative care, organ tissue donation, etc.
There is another document called a physician’s order for life-sustaining treatment that should be considered. It’s included under do not resuscitate orders or do not incubate orders. It is a separate document from the advanced health care directive.
Once you have an advanced healthcare directive, where do you put it?
You should keep the originals in a safe place and give a copy to your doctor or medical provider so they can use it and contact the person that is your agent. You should keep a copy and give one to your agents and family members.
I recommend putting a wallet size card in your wallet stating that you have an advanced healthcare directive and how to contact the person that you’ve appointed. Another thing I always suggest is putting a copy of it in your estate planning binder.
How often should I review or update my AHCD?
It is recommended that you update your advanced healthcare directive every 10 years so that you can keep up with the changing medical conditions.
Where can you get an advanced healthcare directive?
It’s my recommendation that your estate planning attorney, who’s knowledgeable in the law and the various aspects of it, would be able to help guide you through your wishes and final decisions. I do not recommend these website vending machines where you put money in for a form and it comes out because they are standard and good for everybody, but may not be good for you.
Keep in mind that Advance Healthcare Directives are an important part of a comprehensive Estate Plan and should not be overlooked!
If you have any questions regarding Advance Healthcare Directives or are interested in creating one for yourself or a loved one, please contact the office of Rex Crandell at 925-934-6320
You can also click here to send us an email through our website!
