Don’t Wait To Do An Advance Health Care Directive

Advance Health Care Directives (AHCDs) are important planning tools that aid a person who loses his or her ability to make health care decisions to ensure that his or her wishes concerning health care decisions will be carried out. In California we have the right to make our wishes concerning medical treatment known, and to appoint someone to make those decisions for us if we are not able to. If we don’t write down those wishes, we may end up in a situation we do not want, and have decisions made for us that are not in keeping with our desires.

An estate planning attorney can assist with these forms, usually as part of other estate planning, but the forms are readily available and do not require an attorney. The AHCD requires two witnesses or can be notarized. But it is important that the document be executed while the principal (the person making the AHCD) is competent do so.

A client called me recently. She was agitated. “I need to get an advance health care directive for my father.” I ask her where her father is. “In a memory unit of a skilled nursing facility suffering from dementia.”

I have to break the bad news to her: Unless her father has capacity to execute an AHCD, it won’t be valid. Also, if a patient is in a skilled nursing facility, a patient advocate or ombudsman designated by the California Department of Aging must sign the document as one of the witnesses. The patient advocate or ombudsman will want to speak to the patient in advance of witnessing the document, to be sure the document is understood and undertaken voluntarily.

What are the client’s options? There is case law in California that recognizes the concept of identifying a patient’s “closest available relative” as the person to make health care decisions on behalf of a patient who is incompetent, has no written AHCD, and is not under a conservatorship. If the patient is married or has a registered domestic partner, the spouse or registered domestic partner will usually be that relative. However, it is not clear the extent to which these decisions can be made.

Another option is to petition the court to become a “conservator of the person” for her father. That is costly and stressful, but the conservator does have decision-making powers specified by the court.

In either event, if the treating physician or some other relative disagrees with the decision of the spouse, partner or conservator, the situation could end up in court. Also, unless there is clear and convincing evidence of the patient’s wishes, in certain circumstances the relative or even the court-appointed conservator may not be able to make certain decisions, for example, to withhold life support.

The message: don’t wait until it is too late to make an Advance Health Care Directive.