Advance Health Care Directives

An Advance Health Care Directive (AHCD) is a document that allows you to specify your health care preferences and appoint someone to carry out your wishes for you in the event you are incapacitated or otherwise unable to communicate. An AHCD allows you to inform your doctor, family and friends of your preferences regarding your medical care and treatment, including end-of-life decisions. By specifying your wishes in advance, you ensure the quality of life that is important to you and spare your loved ones from having to guess what your preferences would be, or force them to make difficult decisions at a time when they are emotionally distraught. If at some point you become incapacitated, a valid AHCD can eliminate the need for a conservator to be appointed to make decisions regarding your care and medical treatment.

California law requires certain provisions to be included in your AHCD and certain formalities to be followed in the execution of an AHCD, but there is no one single form required for a valid AHCD. An AHCD should designate a person to carry out your wishes (this person is referred to as your "agent") and may include provisions:

• Regarding life support or other life-prolonging measures
  
• Authorizing an autopsy
  
• Directing disposition of remains
  
• Nominating a conservator
  
• Naming a primary physician
  
• Specifying your wishes regarding organ donation
  

AHCD Replaces Earlier Forms of Health Care Directives
Effective July 1, 2000, California consolidated various earlier forms used to designate health care preferences into the AHCD; earlier forms of health care directives included the Durable Power of Attorney for Health Care, Natural Death Act Declaration, and the Directive to Physicians. The AHCD is sometimes referred to as a "Living Will" in other states.

If you have a valid Durable Power of Attorney for Health Care or other valid health care directive executed prior to July 1, 2000, the document can remain in effect. However, you may want to update your health care directive to specifically refer to the Health Insurance Portability and Accountability Act (HIPAA), which regulates the use and disclosure of certain protected health information by doctors, hospitals, and other health care providers. Some medical providers have misinterpreted the privacy rules of HIPAA and have withheld the release of patient information from the patient's family. Although the California Probate Code does not require the AHCD to specifically refer to HIPAA, many estate planning practitioners include a provision releasing the medical provider from liability under HIPAA for disclosure of protected information to the patient's health care agent and/or family.

Estate Planning Issues Require Experienced Legal Representation
If you need assistance with estate planning, contact the Casiano Law Firm for a complimentary telephone consultation with an experienced San Diego elder law and estate planning attorney.

Planning for Incapacity

When most people contemplate estate planning, their primary concern is what will happen to their estate when they pass away. However, proper estate planning also provides a plan for what will happen if you become incapacitated. If you become physically and /or mentally incapacitated due to an accident, injury or illness, who will manage your financial affairs or make medical decisions on your behalf? If you have your estate plan in order, your estate planning documents will have considered this contingency and will provide a thorough plan for incapacity.

Living Trust: The successor trustee of your living trust will assume the role and duties of the trustee upon your incapacity. Keep in mind, however, that the successor trustee will only have access and control over those assets that are held in the living trust; if you hold assets outside of your living trust, your successor trustee will not have control over those assets.

General Durable Financial Power of Attorney: Even if you have a living trust, and hold all or most of your assets in your trust, you should also have a financial power of attorney which is durable, meaning it is still valid even if you subsequently lose capacity. The power of attorney will authorize the agent named in the document to manage your financial affairs, including transferring assets into your living trust, signing your tax return, negotiating with insurance companies and financial institutions on your behalf, and making other important financial decisions on your behalf.

Advance Health Care Directive: This document allows you to appoint an agent or agents who will make medical decisions on your behalf. This document will also allow you to specify in advance your preferences regarding medical treatment. For example, you could specify that your primary care physician is to be consulted regarding your treatment, or you could specify that you do not want to be kept permanently dependent on life support if you are in a persistent vegetative state.

What happens if you fail to plan, and you become incapacitated? Unfortunately, estate planning attorneys are often contacted after a family member or loved one has already become incapacitated. If the client lacks the legal capacity to create an estate plan, the alternative is to file for a conservatorship. There are two types of conservatorships in California:

1. Conservatorship of the Person (to authorize the conservator to make medical decisions, arrange housing and care of the conservatee, etc.); and
2. Conservatorship of the Estate (to authorize the conservator to invest the assets of the conservatee, pay the conservatee’s bills, and handle the conservatee’s finances).
   The same person may serve as conservator of the person and of the estate.

Conservatorships require a formal court proceeding and the court will continue to oversee the administration of the conservatorship for as long as the conservatee is incapacitated, or until the conservatee dies. This process is often criticized as it is costly, time consuming, burdensome and subjects information about the conservatee’s finances and mental and physical condition to public scrutiny. With proper advance planning, a conservatorship may be avoided entirely.

Incapacity due to illness, accident or injury can strike at any time. It is advisable to review your estate planning documents to make sure you are adequately protected in the event of incapacity. If you have any questions, please contact me, or feel free to leave a general response to this posting. Thanks for reading.