An Advanced Health Care Directive (also commonly referred to as a “living will”) is a document which allows you to instruct others about your care in the event you become incapacitated and are unable to make such decisions for yourself.  An Advanced Health Care Directive will allow you to: (1) designate a person to make health care decisions on your behalf in the event you are unable to do so (this person is called an “agent”); (2) Specify whether you wish to prolong your life or withhold or withdraw treatment; (3) Request pain relief; (4) Instruct if and how you wish your organs be donated; and (5) Make other specific requests you may have regarding your health care or end of life decisions.  A Directive will also allow you to nominate a conservator in the event a conservatorship needs to be established.

 

An Advanced Health Care Directive is essential to a proper and complete estate plan.  The law governing Advance Health Care Directives is expressly set out in California Probate Code Section 4600 et seq.


 

Who May Act as an Agent? You may appoint any competent adult over the age of 18 to act as your agent.  The person you choose should be reliable and available should you be unable to make your own health care decisions.  It is equally important that you choose two or three alternate agents, in order of priority, who would be responsible for making your health care decisions in the event that your primary agent is unable or unwilling to act on your behalf. 

 

Under California Law, if you choose a spouse as your primary agent, and subsequently dissolve your marriage, the designation of your spouse as your agent is deemed revoked.  This means that the first alternate agent in your Directive (listed immediately after your former spouse) becomes your primary agent for health care decisions.

 


When Does a Directive Become Valid and How Long Will it Remain Valid? Your Directive becomes effective once it is dated and signed by you and either: (1) properly notarized, or (2) witnessed by two qualified individuals.  The Directive is effective forever, unless it is subsequently revoked by you. You have the choice as to when your agent’s powers become effective.  Your Directive should specify whether your agent’s powers are immediate or only effective at such time as you are unable to make health care decisions for yourself.

 

 


What an Advance Health Care Directive should include:

The Directive should set out what decisions the agent is responsible for making.  Generally, under California Law, an agent under an Advanced Health Care Directive is responsible for making all  decisions regarding your health care, including:

 

1. Selection and discharge of health care providers and institutions;

 

2. Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication; and

 

3. Directions to provide, withhold, or withdraw artificial hydration and all other forms of health care, including cardiopulmonary resuscitation.

 

 
HIPAA Authorization. In light of recent medical privacy regulations (implemented under the Health Insurance Portability ad Accountability Act ("HIPAA")), an Advance Health Care Directive should include or be supplemented by a “HIPAA Authorization.”  This authorization ensures that your agent has access to your medical records and can communicate with medical providers in the event you are unable to do so.  Only with such an authorization are medical providers allowed to release your medical information to your agent.