Medical Directives

An Advanced Medical Directive expresses your preferences for medical care and legally bounds your healthcare providers to your wishes. You can specify what care you want provided or withheld if you are diagnosed to have a terminal illness or to be in a permanent coma, and you can name an agent to ensure that your wishes are followed.

Advanced Medical Directives will allow you to:

• specify that you do not want your life prolonged with medical treatments and procedures
  
• specify medical treatments and procedures that you want provided if you become unable to communicate your wishes
  
• appoint someone to be sure your wishes are carried out

If you choose to have our Firm create your Medical Directive, we will also draft a letter on your behalf directed to your healthcare provider. This letter helps emphasize your choices and summarizes them so that they are easily understood to all who glance through your medical file.

You will have the most thorough assurance that your preferences for medical care will be followed by having us draft a comprehensive Directive, which includes:

• specific written instructions -- usually called a declaration or living will -- that describes the medical care you want if you can no longer express your wishes, and
  
• a written authorization -- usually called a healthcare proxy or a durable power of attorney for healthcare -- that names another person to supervise your wishes.

In California, you are allowed to combine these instructions and authorizations into a single document.

In a healthcare directive, a person can set out wishes about what life-prolonging treatment should be withheld or provided if he or she becomes unable to communicate those wishes. A doctor who receives a properly signed and witnessed or notarized directive is under the duty either to honor its instructions, or to make sure the patient is transferred to the care of another doctor who will honor them.

In California, you must be 18 years old to make a valid document directing your healthcare. In addition, a person making a healthcare directive must be legally competent -- that is, able to understand what the document means, what it contains and how it works. People with mental disabilities who cannot understand the contents of a healthcare document cannot make one that will be valid. People with physical disabilities may make valid healthcare documents; they can direct another to sign for them if they are unable to do so.

In your Medical Directive, you may authorize a representative to supervise the wishes you set out in your healthcare directive. This portion of the Directive is usually called a “Durable Power of Attorney for Healthcare” or “Healthcare Proxy.” The person you name will be referred to as your agent, proxy or attorney-in-fact.

The power of attorney specifically gives the person you name as your healthcare proxy the authority to:

• review your medical records
  
• grant releases to medical personnel
  
• take any legal action necessary to ensure your wishes are followed
  
• hire and fire medical personnel such as homecare providers and attending physicians
  
• visit you in a hospital or other healthcare facility.

This should allow your proxy to do everything needed to make sure your healthcare wishes are carried out as written … and if they are not, to get you transferred to another facility or to the care of another doctor who will enforce them.

If you do not have someone that you would trust in this capacity, you should still have a Directive drafted (leaving out the Durable Power section). That way, your doctors will still be bound to follow your wishes.

The directions set out in your written healthcare directive will only be followed if you later become unable to communicate your wishes about the treatment. If, for example, you indicate in a healthcare directive that you do not wish to have water provided, healthcare providers will not deny you a glass of water as long as you are able to communicate your wishes for one.

Second, you can change or revoke your written healthcare wishes at any time in the future. If you find that your document no longer accurately expresses your wishes for your medical care, you can easily draw up and finalize a new one to meet your needs.

If you have not completed either a formal document, such as a healthcare directive to express your wishes, or a durable power of attorney to appoint someone to make healthcare decisions on your behalf, the doctors who attend you will use their own discretion in deciding what kind of medical care you will receive; often, medical providers will make these decisions in consultation with your family.

Problems may arise when family members disagree about what treatment is proper; emotions may run high, thereby making agreement impossible. These battles over medical care wind up in court, where a judge, who usually has little medical knowledge and no familiarity with you, is called upon to decide the future of your treatment. Such battles -- which are costly, time-consuming and painful to those involved -- are unnecessary if you have the care and foresight to use a formal document to express your wishes for your healthcare.

A separate type of durable power of attorney -- called a durable power of attorney for finances -- can be used to give a person you trust the legal authority to handle your financial matters if you become unable to do so. People who are facing illness, injury or old age are particularly good candidates for this type of document.

If you need a durable power of attorney for finances, see that section of our website.

Your healthcare directive takes effect when:

• you are diagnosed to be close to death from a terminal condition or to be permanently comatose (or any other condition you would like that would allow the directives to become effective)
  
• you cannot communicate your own wishes for your medical care orally, in writing or through gestures
  
• medical personnel attending you are notified of your written directions for your medical care.

In most instances, you can ensure that your directive becomes part of your medical record when you are admitted to a hospital or other care facility. But to ensure that your wishes will be followed if your need for care arises unexpectedly or while you are out of your home state or country, it is best to give copies of your completed documents to several people.

To become legally operative, your signature of the Directive must either be witnessed by two, “independent” (i.e., not beneficiary or relative) adults or it must be notarized.

Ideally, you should make an effort to make your wishes for your future healthcare widely known. Keep a copy of your healthcare directive, and give other copies to:

• any physician with whom you now consult regularly
  
• the proxy you named in your directive
  
• the office of the hospital or other care facility in which you are likely to receive treatment
  
• the patient representative of your HMO or insurance plan
  
• close relatives, particularly immediate family members, a spouse, children, siblings, and
  trusted friends.

If you have a change of mind and wish to revoke or cancel your healthcare directive, you can do so at any time. While there are several legal ways to do this, we recommend that you tear up the original documents and all copies. In addition, if you have told your healthcare provider about your documents, you must inform the healthcare provider of the revocation. As a practical matter, it is always important to inform those who know about your documents that you have revoked them especially your healthcare providers and your healthcare agent, if you have named one. Make sure that all people who have copies of your documents return them to you to be destroyed.

You are not required to revoke your documents in writing, although it is wise to do so.