Advance Health Care Directives
Principles
Powers of a Health Care Agent
Ineligible Agents
Rejection of Health Care Decisions
Forms
Formalities
Principles
Medical care can only be predetermined by an advanced health care directive. A Californian advance health care directive can be used for any of for the following purposes:
Unlike the durable power of attorney for finances, in the regular case the advance health care directive is not active immediately but springs into effect if the primary physician determines a lack of the capacity to make your own health care decisions. This can either happen because of a mental lack of capacity (the principal does not understand) or because of a lack of communication capability (the principal cannot communicate).
If you prefer that your agent receives authority to make health care decisions right away, you can do so by stating this within the directive. However as long as you are capable the agent is not authorized to override your own wishes regarding health care.
Powers of a Health Care Agent
Most people designate a health care agent for good reason. The agent can ensure that treatment is actually administered as outlined in the advance health care directive. In addition, having somebody who is following up the treatment will let the medical institution work more diligent as if there was none to look after and lobby for you.
The agent’s powers depend on the directive. People usually choose a highly trusted person as health care agent, most often the spouse. Therefore the agent frequently receives comprehensive powers. However, that is not necessary. The scope of the agent’s powers totally depends on the wishes and restrictions, outlined in the directive.
If you use the Californian statutory advance health care directive (see below) and don’t restrict the powers of the agent, he or she will have the power to:
Under Californian law some persons may not serve as a personal health care agent. Those are: The supervising health care provider or an employee of the health care institution where the patient is receiving care and an operator or employee of a community care facility or residential care facility where the patient is receiving care. There is an exemption for family members of employees of such institutions (for further reference see sec. 4659 of the California Probate Code).
Rejection of Health Care Decisions
In general medical providers have to follow the wishes outlined within the health care directive. But there are some exemption from this general rule. If a special treatment conflicts with the conscience of the doctor or a policy of the health care institution, the decision may be rejected. The prime example for these exemptions are life-ending measures. The law reflects the well known controversy whether it is morally right to discontinue life-prolonging care or not when a patient wishes to die or the medical agent expresses that whish on behalf of the patient. No doctor can be forced to participate in such matters and therefore doctors and hospitals are entitled to refuse such treatments.
The doctor may also reject a wish outlined in the advance health care directive if the treatment was medically ineffective or would violate generally accepted health care standards. During Pregnancy the right to determine one’s own health care is limited, because the rights of the unborn child overrule the general freedom to make health care decisions, which might effect the life of the child.
Forms
Similar to the statutory form for durable powers of attorney the California Probate Code also contains an statutory form for advance health care directives (Sec. 4700-4701 California Probate Code). The form may, but need not, be used to create an advance health care directive. Everyone may complete or modify all or any part of the statutory form. The statutory form can be downloaded free of charge from the Sacramento Public Law Library.
If you would like to get a personalized and lawyer checked advance health care directive or further explanations regarding the statutory form the estate planning lawyers of Rinne Legal in San Francisco, Oakland, Fairfield, Sacramento and Walnut Creek will be able to consult and draft a proper directive.
Formalities
A Californian advance health care directive must either be signed in front of two witnesses or be notarized. If you are a patient in a nursing home or other health care facility for long-term care it is required by law that the institution’s patient advocate or ombudsman signs the directive as one of the two witnesses or in addition to the two witnesses or the notary.
Powers of a Health Care Agent
Ineligible Agents
Rejection of Health Care Decisions
Forms
Formalities
Principles
Medical care can only be predetermined by an advanced health care directive. A Californian advance health care directive can be used for any of for the following purposes:
- To specifically express your wishes regarding what kind of medical care you do or do not want in the case that you are incapable of making such decisions any more.
- To designate a trusted person as a health care proxy (health care agent), who will be entitled to decide in cases that are not expressly mentioned in the advance health care directive.
- To name a primary physician, who should be responsible for your treatment if available.
- To stipulate whether your organs or other body parts may be donated upon death.
Unlike the durable power of attorney for finances, in the regular case the advance health care directive is not active immediately but springs into effect if the primary physician determines a lack of the capacity to make your own health care decisions. This can either happen because of a mental lack of capacity (the principal does not understand) or because of a lack of communication capability (the principal cannot communicate).
If you prefer that your agent receives authority to make health care decisions right away, you can do so by stating this within the directive. However as long as you are capable the agent is not authorized to override your own wishes regarding health care.
Powers of a Health Care Agent
Most people designate a health care agent for good reason. The agent can ensure that treatment is actually administered as outlined in the advance health care directive. In addition, having somebody who is following up the treatment will let the medical institution work more diligent as if there was none to look after and lobby for you.
The agent’s powers depend on the directive. People usually choose a highly trusted person as health care agent, most often the spouse. Therefore the agent frequently receives comprehensive powers. However, that is not necessary. The scope of the agent’s powers totally depends on the wishes and restrictions, outlined in the directive.
If you use the Californian statutory advance health care directive (see below) and don’t restrict the powers of the agent, he or she will have the power to:
- Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
- Select or discharge health care providers and institutions.
- Approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
- Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
- Make anatomical gifts, authorize an autopsy, and direct disposition of remains.
Under Californian law some persons may not serve as a personal health care agent. Those are: The supervising health care provider or an employee of the health care institution where the patient is receiving care and an operator or employee of a community care facility or residential care facility where the patient is receiving care. There is an exemption for family members of employees of such institutions (for further reference see sec. 4659 of the California Probate Code).
Rejection of Health Care Decisions
In general medical providers have to follow the wishes outlined within the health care directive. But there are some exemption from this general rule. If a special treatment conflicts with the conscience of the doctor or a policy of the health care institution, the decision may be rejected. The prime example for these exemptions are life-ending measures. The law reflects the well known controversy whether it is morally right to discontinue life-prolonging care or not when a patient wishes to die or the medical agent expresses that whish on behalf of the patient. No doctor can be forced to participate in such matters and therefore doctors and hospitals are entitled to refuse such treatments.
The doctor may also reject a wish outlined in the advance health care directive if the treatment was medically ineffective or would violate generally accepted health care standards. During Pregnancy the right to determine one’s own health care is limited, because the rights of the unborn child overrule the general freedom to make health care decisions, which might effect the life of the child.
Forms
Similar to the statutory form for durable powers of attorney the California Probate Code also contains an statutory form for advance health care directives (Sec. 4700-4701 California Probate Code). The form may, but need not, be used to create an advance health care directive. Everyone may complete or modify all or any part of the statutory form. The statutory form can be downloaded free of charge from the Sacramento Public Law Library.
If you would like to get a personalized and lawyer checked advance health care directive or further explanations regarding the statutory form the estate planning lawyers of Rinne Legal in San Francisco, Oakland, Fairfield, Sacramento and Walnut Creek will be able to consult and draft a proper directive.
Formalities
A Californian advance health care directive must either be signed in front of two witnesses or be notarized. If you are a patient in a nursing home or other health care facility for long-term care it is required by law that the institution’s patient advocate or ombudsman signs the directive as one of the two witnesses or in addition to the two witnesses or the notary.
