An Advanced Health Care Directive (AHCD) allows a person (the principal) to set forth their wishes regarding the type of health care they want to receive or do not want receive; whether they wish to make organ donations, and what their preference (if any) is with regard to the burial or cremation of their remains.
The AHCD also nominates the person (or persons) the principal wants (a.k.a. the agent) to interface with medical care providers on their behalf and to make medical decisions. The agent must take action in accordance with the advance directive. The AHCD becomes effective only upon the principal’s incapacity.
1) Authority Granted: The principal authorizes an agent to make decisions about the principal’s health care, which includes any care, treatment, service or procedure to maintain, diagnose, or treat an individual’s physical or mental condition, and it includes decisions affecting the principal after death.
2) “Health Care Decisions” means consent, refusal of consent, or withdrawal of consent to health care, or a decision to begin, continue, increase, limit, discontinue, or not to begin any health care. An advance directive can be drafted to reflect the desires and needs of the individual principal.
3) Who Should Be My Agent? Your agent does not have to have a medical background (although that would be helpful). Your agent needs to be a person who has the ability to make medical decisions (including tough end of life decisions), can advocate strongly on your behalf and attend your medical appointments with you. The agent must also be willing to follow your wishes. For example, if you nominate an agent who will not terminate life support for you (and this is your wish/directive) for personal or religious reasons, you should not nominate that particular person.
4) My Family Knows What I Want & That’s Enough. While many families are very open and vocal regarding “end of life issues,” just as many are not. Let’s face it, most families usually get together at “happy” events (birthdays, weddings, reunions, and Sunday dinners) and the issue of “dying” is not a particularly uplifting topic for most, so it is not discussed. Even if your children know your wishes, what if a child states you told her something else and tells your physician? Who is the physician to believe? It is a typical “he said” “she said” situation. Until the physician (and usually the hospital) determine either (1) who they will believe or (2) require your family to obtain a court order instructing the physician and/or hospital to start or cease treatment, your family will waste precious time and money waiting for a resolution. While an AHCD is not perfect, it is very good evidence of your particular wishes. It shows that you took the time, effort and money to discuss the issue, make an informed and thoughtful decision, and to put your wishes in writing. It is hard to argue with that.
5) Expiration Date: All AHCDs executed after July 1, 2000 do not have an expiration date.
6) Capacity: A principal must have the capacity to enter into contracts and understand the ramifications of their execution of an AHCD in order for them to execute a valid AHCD (it is the same standard as executing a Durable Power of Attorney For Finances, as I mentioned in my previous blog post). If the person does not have such capacity, then they cannot execute an AHCD. Being able to sign your name is not enough to create a valid AHCD.
7) Alternative: If you have a loved one, who no longer has the capacity to execute an AHCD and they cannot make medical decisions for themselves, your only alternative is to establish a conservatorship over their person. A conservatorship of the person is established through the probate department of your local Superior Court. For information on conservatorships, please visit our website or read my next blog post!
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