You don't usually want to think about what would happen if you couldn't control your own medical care due to disease, an accident, or advanced age. However, if you don't do some planning ahead of time—writing down your wishes for the types of treatment you want or don't want and naming someone you trust to oversee your care—these important decisions could end up in the hands of estranged family members, doctors, or even judges who may have little knowledge of your preferences. You might need the help of an Estate Planning Attorney to figure things out.
Find An Estate Planning Attorney in California for Healthcare Wills and Powers of Attorney
A living will and a durable power of attorney for health care are two essential forms that allow you to express your medical intentions. It's a good idea to plan for both. In some places, the living will and power of attorney are combined into one document known as an advance directive. (In fact, both of these documents are health care directives, which allow you to define your healthcare desires in the event that you are unable to speak for yourself.)
Living Wills. To begin, you'll need a written declaration outlining the type of care you desire (or don't want) if you become incapacitated. The most common name for this document is a living will, though it may have a different name in your state. A living will isn't the same as a traditional will or living trust, which is intended to bequeath property at death; it's just for stating your healthcare preferences.
Health Care Powers of Attorney. You'll also need a durable power of attorney for healthcare decisions. You appoint someone you trust to act as your health care agent (also known as attorney-in-fact for health care, health care proxy, or surrogate) to make any necessary health care decisions on your behalf and to ensure that doctors and other health care providers provide you with the care you desire.
What Does a Living Will and a Health Care Power of Attorney Cover?
You have a lot of options and freedom when writing a living will and durable power of attorney for health care. You can always ask your California Estate Lawyer for more details; but in general, the following are some points to think about:
Living Will
If you are not able to speak for yourself, your living will (health care declaration) is where you put down what you desire and don't want in terms of medical care. To complete your document, you do not need to become a medical specialist, but it will benefit you to get familiar with the types of medical procedures that are regularly delivered to very ill patients.
Medical Treatment to Extend One's Life
Living wills are required in most states, and inquire if you wish to receive life-prolonging treatments at the end of your life. The following are examples of such procedures:
- blood and blood products transfusions
- resuscitation of the heart and lungs (CPR)
- diagnostic examinations
- dialysis
- medication administration
- wearing a respirator
- surgical procedure
If you need additional information, speak with your doctor or a patient representative at a hospital or health insurance plan office, or look out for self-help resources.
Water and Food
You will not be able to survive without the administration of food and drink if you are near death from a major disease or are permanently unconscious. Unless you request that therapy be withheld, doctors will administer a mix of nutrition and fluids to you via intravenous (IV) feeding or tubes. IV feeding is a short-term treatment in which fluids are administered through a vein in the arm or leg. Tube feeding, on the other hand, can be continued continuously.
Patients who are permanently comatose can sometimes live for years without regaining consciousness, provided they are fed and hydrated artificially. If food and water are not available, death will occur quickly due to dehydration rather than famine. A pharmaceutical plan is usually included in such a plan to keep the patient comfortable.
You can specify whether you want artificially supplied food and drink withheld or delivered when creating your health care documentation. Many people find this decision difficult to make. Keep in mind that you will not be denied food or drink if you are able to communicate your wishes, regardless of how you do so.
Palliative Care (Pain Relief)
It is not necessary to forego care to relieve pain or make you comfortable if you desire to die naturally without life-prolonging intervention. Palliative care is the new name for this sort of care, which was previously known as "comfort care."
Palliative care, rather than being focused on a cure or prolonging life, stresses quality of life and dignity by assisting a patient in being comfortable and pain-free until death occurs naturally. Palliative care can be provided at home, in a hospice, or in a hospital setting.
You might want to spend some time learning about palliative care. In your living will, you can express your views and choices about such care.
POLST Forms and DNR Orders
Some persons who do not want to receive life-prolonging therapy when they are near death — most likely individuals who are already severely ill — may choose to prepare a "do not resuscitate" (DNR) order. This form informs emergency personnel that you do not want to receive cardiopulmonary resuscitation in the event of a medical emergency (CPR).
Your doctor can add a DNR order to your medical record if you are in the hospital. If you are not in the hospital, you can issue a "prehospital DNR order," which will notify paramedics who arrive at your home or care facility. You should also purchase an easily recognized MedicAlert-type bracelet, anklet, or necklace in addition to preparing a prehospital DNR order.
DNR orders are increasingly being incorporated into or replaced by a broader set of medical orders known as "Physicians Orders for Life-Sustaining Treatment" (POLSTs) or something similar in a growing number of states. POLST forms give advice to health care personnel concerning various life-prolonging therapies, such as intubation, antibiotic use, or feeding tubes, in addition to CPR instructions. A POLST is similar to an advanced health care directive or a living will in this regard, but it is not a complete replacement for such instruments.
For more details, consult your California Estate Planning Lawyer on the specifics of the documents.
Health Care Power of Attorney
You can name someone (your health care agent) to manage your health care wants and make any necessary medical choices for you using a durable power of attorney for health care. You can give your healthcare agent as much or as little authority as you like. The majority of people give their healthcare agents broad authority to oversee their care.
Because of this, most states' power of attorney forms provides your agent the authority to make all healthcare decisions on your behalf unless you clearly limit that authority in the instrument. This usually indicates that your agent will be able to:
- consent or deny any medical treatment that affects your physical or mental health
- Medical workers might be hired or fired.
- decide on the most appropriate medical facilities for you
- even if other visitors are prohibited from visiting you in the hospital or other facility
- access to medical records and other personally identifiable information
- If a hospital or doctor does not obey your living will or the authority of your health care agent, you may need to seek court permission to acquire or refuse medical treatment.
Body Disposition and Organ Donation
When you die, most of your agent's authority under a durable power of attorney for health care expires. However, in many states, you can give your agent authority to manage your body's disposition, including approving an autopsy or following out your desires for organ donation. You should specify these abilities in your power of attorney agreement if you want your agent to have them.
If you have specific requests in these areas, your living will is an excellent way to record them. Your agent is legally obligated to carry out your instructions as closely as possible.
Limiting the Power of Your Health Care Agent
Keep in mind that your agent cannot overturn your wishes as long as you are able to understand and convey them. Your agent will only intervene if you are unable to handle it on your own. Furthermore, as previously stated, you are free to limit your agent's authority in any way you see fit. Some people, for example, give their health care agent solely the authority to carry out their living will's health care wishes and not to make any other medical choices on their behalf.
However, think twice about including limited wording in your power of attorney. One of the most notable reasons to select a health care agent is to ensure that someone is available to respond to your situation's demands as it evolves. Your medical needs may alter in unexpected ways, and an agent with complete authority can act on your behalf regardless of the circumstances.
Who Has the Authority to Create Healthcare Documents?
To make a valid document directing your health care, you must be a legal adult (18 years old in most states). You must also be of sound mind, which means you must be able to comprehend the document's meaning, contents, and operation.
When Do Your Medical Documents Become Effective?
If your doctor concludes that you lack the ability—often referred to as "capacity"—to make your own healthcare decisions, your healthcare documents take effect. In most cases, a lack of capacity means that:
- You are unable to comprehend the nature and ramifications of the healthcare options open to you.
- You are unable to express your own care wishes verbally, in writing, or through gestures.
In practice, this implies that if you become so ill or damaged that you are unable to convey your health care intentions in any manner, your paperwork will take effect immediately. If there is any doubt about your ability to comprehend and communicate effectively about your treatment options, your doctor (with input from your health care agent or close family) will decide whether it is time for your health care documents to go into effect.
In some places, you can give your health care agent immediate authority to oversee your medical treatment. If your state allows it, you may wish to create an immediately effective document so that your agent can act on your behalf at any moment without having to consult a doctor about whether or not your health care document should go into force.
Your agent will not be able to override what you desire in terms of treatment if your document becomes effective immediately; you will always be able to dictate your own medical care if you have the ability to do so. Even if you are no longer capable of making decisions for yourself, your health care agent must always work in your best interests and make every effort to carry out whatever healthcare preferences you have stated in your healthcare declaration or elsewhere.
When Your Medical Records Expire
Unless you specifically withdraw your paperwork or a court intervenes, your written healthcare preferences remain in effect as long as you are alive (but court involvement is very rare). Here are some details concerning when your medical records are no longer valid:
Your document is revoked by you. A health care document can be changed or revoked at any time. Simply inform your healthcare professionals and agent of your decision to revoke the paperwork.
Your document is declared void by a court. Most judges understand that a courtroom is not the best location to make medical judgments. However, if a disagreement arises over your health care and someone doubts the legality of your health care directives, the case may be brought before a judge.
Someone who disputes your mental competence to write a legally legitimate health care document can urge a court to declare your document invalid. Such lawsuits are uncommon, but they do happen. The individual who disputes the document's authenticity bears the burden of establishing that you were not of sound mind when you created it. (This means that the law assumes you have the mental capacity to create your healthcare documents.)
It's also possible that a court will declare your document invalid if it wasn't properly completed—for example, if you didn't have the document notarized or witnessed as required by your state. However, if this occurs, any healthcare wishes you make in the document are likely to be honored—as long as they are clearly expressed, and you were of sound mind when you wrote them down.
The United States Supreme Court stated in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), that any substantial proof of someone's desire for care should be fulfilled. Because of a technical error, your instructions will not be ignored.
Your agent's authority is revoked by a court. If someone suspects that your health care agent is not operating in your best interests or according to your preferences after your health care documents take effect, the concerned individual can go to court and request an investigation into your agent's actions. If a court finds that your agent is acting inappropriately and revokes his or her permission, the job will be given to an alternate agent you selected in your paperwork first. If no other option exists, or if the court declares your entire document invalid for one of the reasons listed above, a conservator or guardian will be appointed to make healthcare decisions on your behalf.
You're getting divorced. Getting divorced has no bearing on your written healthcare directives (your health care declaration). In other states, however, naming your spouse as your health care agent instantly revokes his or her authority. If you named an alternate agent, that person would take over in that case.
- If you get divorced before your healthcare directives go into effect, it's a good idea to start anew. Make a new document and name someone else as your agent, even if you previously named an alternate agent.
Following your passing. When you die, your medical records are usually no longer required. However, in some states, your health care directives are still valid after you pass away for a very limited time. Unless you specifically renounced these rights while making your health care arrangements, your agent may be allowed to supervise the disposition of your body, including ordering an autopsy or organ donation.
Do-Not-Resuscitate Orders
If you stop breathing or your heart stops beating, and you haven't been admitted to a hospital, a "prehospital" or "out of hospital" DNR order gives instructions for emergency medical staff who might treat you if you stop breathing or your heart stops beating. It informs them that you do not want them to use CPR, artificial breathing tubes, electric cardiac shocks, or any other invasive emergency methods on you. (If you are admitted to the hospital, you can obtain a new DNR order, which will be recorded in your medical records.)
The only resuscitation of someone who has stopped breathing or has no heartbeat is affected by DNR directives. While you're still breathing, they have no influence on your treatment. Emergency medical services providers, for example, would strive to keep you warm and comfortable, stop any bleeding, and relieve your pain even if your heartbeat and breathing had ceased.
In an advance directive, you can specify your desires for CPR, but this document may not be available in an emergency. Even if emergency personnel had access to your advance directive, it's unlikely that they would read it.
As a result, first responders who hurry to assist someone who has collapsed are often unaware of the person's treatment preferences. They simply do everything within their power. The same can be said for emergency room personnel. As a result, invasive procedures like intubation, ventilation, and CPR may be required.
Consider one of our prescreened California Attorneys in your Cal Bar Attorney Search.
Is it Necessary to Get a DNR?
A DNR order, unlike an advance directive or a healthcare power of attorney, is not a document that everyone requires. If you collapse at home or in public, make a prehospital DNR order only if you don't want CPR or other exceptional measures conducted on you.
CPR has the potential to save lives, but its success rate (particularly outside of hospitals) is low. CPR can make things worse if you're extremely ill; it could cause brain damage or painful injuries.
People usually think about a DNR if they have a terminal illness or are in danger of cardiac or respiratory arrest. The paper allows a person to "forego resuscitation attempts and... achieve a natural death with peace and dignity," according to the Texas legislation enabling DNR orders.
A DNR order can be revoked at any moment.
Making the Document
A prehospital DNR order is usually a one-page document that doesn't require the assistance of a CA Estate Lawyer. However, you must speak with your doctor, who will sign your DNR. Adult witnesses or a notary public may be required in some places to watch you sign the order.
Many states have their own forms, while others allow you to fill out the form online. The papers should be available from your doctor. Many states' forms are available online at the state health department's website.
A prehospital DNR order will have no impact unless it is seen by emergency medical staff before CPR is started. Keep a copy of your DNR order at your bedside or on the refrigerator, where emergency medical personnel may look for medication lists. Keep one in your wallet as well, even if emergency responders are unlikely to look there. Take a copy with you when you go, and make sure that whomever you're with knows where it is. You can also purchase bracelets that notify emergency medical staff that you are on the DNR list.
Health Care Directives: Finalization Requirements
You must follow your state's laws for making your health care directive legally legitimate and binding when you finish it. In every state, you must sign your paperwork or have someone else sign it on your behalf. You may also need to get your document witnessed and notarized, depending on the state – and in some cases, both. If you need help organizing and systematically filing your documents, you can seek the assistance of an Estate Lawyer in California.
Notarization and Witnessing. Witnesses are required to sign your documents in most states. Your paperwork may be notarized rather than witnessed in some states. In some cases, you'll need both witnesses and a notary to sign your document. In addition, the paperwork directing your health care and the paperwork identifying your agent may have various requirements in different states. Links to your state's rules can be found below.
Witnessing. Many states require two witnesses to witness you signing your healthcare documents and to certify in writing that you were of sound mind and signed the documents without the influence of anybody else.
- Each state has its own set of guidelines regarding who can act as your witnesses. A spouse, another close family, or anybody who would inherit property from you is not authorized to testify as a witness for the document ordering health care in several states, for example. In addition, many states make it illegal for your attending physician to testify. These laws are designed to ensure that your witnesses do not have a personal or professional interest in your health treatment, resulting in a conflict of interest.
- You may take your paperwork to the notary, or the notary may come to you, depending on your circumstances. After watching you sign the paper, the notary may sign the notary language on the form or write out a separate form and attach it to your paperwork.
- Prepare to produce identification to the notary and pay a little fee for their services. If you are a hospital patient, the service may be provided free of charge.
Beneficiary. Any person who has the right to inherit a deceased person's property.
Beneficiary of a will. Any person or organization listed as a beneficiary in a will, either as a first choice or in the event that the first choice does not outlive the individual who made the will.
Estate Claim. A person's entitlement to collect property from a deceased person's estate. This could be the result of a will or living trust, a contract, or a legal obligation that the deceased owes to the person.
Devisee. Any individual who has been named to inherit property in a will or living trust or who is entitled to inherit property under state law.
Heir at law. Any person who, under state law, is eligible to inherit property from another person. Spouses, children, parents, brothers, and sisters are the most common heirs at law. An heir at law could be a niece, nephew, or even a distant cousin if none of these people exist.
Inherit by operation of law. When a person dies with property that was not left by a will or another legal instrument like a living trust, the property will be distributed according to the laws of the state where the person died—that is, by operation of law. These laws, sometimes known as "intestate succession laws," normally distribute property first to a spouse and children, then to parents, brothers, and sisters.
Presumptive heir. One who will inherit assets under state law unless the present property owner has a child.
California Advance Directive for Health Care
It must be notarized or signed by two witnesses.
If you want the paper to be witnessed, neither of your witnesses can be:
- your healthcare representative
- your healthcare professional
- a member of your healthcare provider's staff
- a manager of a community-based care facility
- a worker at a community-based care facility
- the owner or operator of an elderly residential care facility
- a caregiver for the elderly who works in a residential care facility
A witness must also not be connected to you by blood, marriage, or adoption and must not be entitled to any portion of your estate by operation of law or under your will.
Finally, if you are in a skilled nursing facility, a patient advocate or ombudsman must witness the document.
For more details on the matter, consult your California Estate Planning Lawyer.
Assisting an Elder in Obtaining a Power of Attorney
Both elders and their caregivers can benefit from powers of attorney. Elders can use powers of attorney to appoint a trustworthy person to make healthcare and financial decisions on their behalf. When a loved one loses the ability to make sensible financial decisions, having such powers in place can be invaluable, especially if the person in need rejects — or is unaware of — deteriorating medical or mental health. This is a step-by-step guide to obtaining a power of attorney for elderly parents.
What Kinds of Documents Will You Require?
It will be considerably easier if the person you're caring for is still of sound mind (a little forgetfulness is ok as long as they can understand the plans you provide) and receptive to the concept of laying out medical desires and appointing someone to manage financial affairs. You can assist the individual in completing and signing both medical and financial powers of attorney. These documents will name someone to be in charge of medical treatment and finances. Here's a quick rundown of the two documents.
A medical power of attorney.
This document, also known as a "durable power of attorney for health care," appoints a trustworthy individual to make healthcare choices for someone who is unable or unwilling to do so. The health care representative may be referred to as an agent, attorney-in-fact, health care proxy, health care surrogate, or something similar, depending on the person's state of residence.
The health care agent collaborates with doctors and other health care professionals to ensure that the individual who signs the document receives the care they desire. The agent is legally obligated to follow the document maker's treatment choices to the degree that he or she is aware of them when arranging care.
A second sort of health care document, typically referred to as a living will or a health care declaration, can be used by the person you're caring for to offer written health care instructions to the agent and health care professionals.
Some states combine a durable power of attorney for health care and a living will into a single document known as an advance health care directive to make things easier.
Financial power of attorney.
A "durable power of attorney for finances" is the type of financial power of attorney you'll want to help your loved one prepare. This paper will allow a family member or acquaintance to delegate complete financial authority to someone else. Although the appointed individual is commonly referred to as an "agent" or "attorney-in-fact," he or she is not required to be an Estate Attorney.
The agent can perform routine activities like sorting mail and depositing Social Security checks, as well as more involved chores like monitoring retirement accounts and other investments and submitting tax reports. The agent does not need to be a financial expert; all that is required is that they are entirely trustworthy and possess a healthy dose of common sense. If necessary, the agent might enlist the assistance of professionals to assist with more difficult duties.
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