What is an Advanced Medical Directive?

by | Jul 13, 2018 | ESTATE PLANNING | 0 comments

Unexpected situations can arise at any time. Therefore, it’s important for all adults to have protections in place, not just the elderly. An Advance Medical Directive, also known as a durable power of attorney for healthcare, allows you to give instructions for your doctor or caregiver if you fall into a coma or become terminally ill, seriously injured, or mentally incapacitated. It also gives you the option to appoint someone else to make decisions on your behalf if you become incapacitated. The directive can help to avoid unnecessary suffering, relieve your caregivers of heavy decision-making burdens, and prevent any disagreement about your wishes during a time of potential crisis or grief.

There are several important factors to consider when contemplating an advance medical directive. A brief explanation of these decisions can be found below.  Because medical directives are legally binding, we recommend consulting with an attorney before executing one.

Who should I name as my agent?

The person you name to make decisions for you may be a spouse, other family member, friend or member of a faith community. You may also choose one or more alternates in case the person you chose is unable to fulfill his or her role. The person you appoint as your agent should be aware of your wishes and willing to make health care decisions for you.

Under California law, your agent cannot be:

  • your supervising health care provider,
  • the operator of a community care facility or residential care facility where you are receiving care, or
  • the employee of a health care institution where you are receiving care or employee of a community care facility or residential care facility where you are receiving care, unless:
    • the employee is related to you by blood, marriage, or adoption, or the employee is your registered domestic partner, or
    • the employee is your coworker at the facility or institution.

What can my agent do?

Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. You do not need to limit the authority of your agent, if you wish to rely on your agent for all health care decisions that may have to be made. However, if you choose not to limit the authority of your agent, your agent will have the right 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.

Your agent CANNOT authorize convulsive treatment, psychosurgery, sterilization, abortion, or commitment to a mental health facility.

What else does a medical directive cover?

In addition to appointing your agent for medical decisions, the medical directive allows you to give specific instructions for your future care.  Even if you choose not to appoint an agent, this document allows you to give instructions that bind all future medical professionals and care providers. You can express your wishes as to the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. You can also include provisions regarding personal care, assisted living facilities, life support, and/or donation of organs and tissue.

If you prefer to allow your appointed agent to make all medical and end-of-life decisions on your behalf, you do NOT need to provide any specifics.

What if I change my mind later?

You have the right to revoke your advance medical directive, or to replace it. Your directive may be revoked at any time, and in any way that communicates your intent to revoke, except for the appointment of your agent. This appointment can only be revoked by a signed writing to your agent, or by informing your supervising healthcare provider directly. If your appointed agent is also your spouse, any power conferred to them will be automatically revoked upon divorce.

You can also execute a new advance medical directive. Signing a new directive will automatically revoke the old one, but only to the extent that there is conflict between the documents. We generally recommend formally revoking any prior directives when executing a new one, to avoid confusion in the future.

In California, advance medical directives are governed by the Health Care Decisions Act, which can be found in Sections 4670-4806 of the California Probate Code. This code is complex with strict requirements and we recommend working with an attorney to ensure your directive is legally enforceable. Contact our office today, at 833-422-5529, for more information on how to protect yourself in the case of a medical emergency.