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Advanced Health Care
YOUR HEALTHCARE: WHO WILL DECIDE WHEN YOU CAN'T?
California law provides each of us with the ability to make sure that our health care wishes are known and complied with in the event we are unable to make these decisions ourselves.
The Advance Health Care Directive is the result of a new law that became effective July 1, 2000. The new law repealed the provisions governing Durable Powers of Attorney for Health Care and the California Natural Death Act and revises and recasts these provisions as part of a new Health Care Provisions Law.
WHAT IS AN ADVANCE HEALTH CARE DIRECTIVE?
Under the new law, Advance Health Care Directives include individual health care instructions regarding health care decisions for you as well as and powers of attorney for health care (similar to the former durable powers of attorney for health care). The Advance Health Care Directive also encompasses what was formerly included in a "living will" since individual health care instructions can now include your wishes about refusing or accepting life-sustaining treatment.
An Advance Health Care Directive allows you to do either or both of two things. First, you may appoint another person to be your health care "agent." This agent (also known as your "attorney-in-fact") will have legal authority to make decisions about your medical care if you become unable to make these decisions for yourself. Second, you may write down your health care wishes in the Advance Health Care Directive form; For example, a desire not to receive treatment that only prolongs the dying process if you are terminally ill. Your doctor and your agent must follow your lawful instructions.
IS AN ADVANCE HEALTH CARE DIRECTIVE DIFFERENT FROM A "DURABLE POWER OF ATTORNEY FOR HEALTH CARE?"
The Advance Health Care Directive has replaced the Durable Power of Attorney for Health Care (or "DPAHC") as the legally-recognized document for appointing a health care agent in California. The Advance Health Care Directive allows you to do more than a DPAHC. An Advance Health Care Directive permits you not only to appoint an agent but also to give instructions about your own health care.
IS AN ADVANCE HEALTH CARE DIRECTIVE DIFFERENT FROM A "LIVING WILL?"
The Advance Health Care Directive is now the legally recognized format for a living will in California. The Advance Health Care Directive allows you to do more than the traditional living will which only states your desire not to receive life-sustaining treatment if you are terminally ill or permanently unconscious. An Advance Health Care Directive allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill.
WHAT IF I HAVE ALREADY EXECUTED A DURABLE POWER OF ATTORNEY FOR HEALTH CARE OR A NATURAL DEATH ACT DECLARATION?
Previously executed Durable Powers of Attorney for Health Care and Natural Death Act Declarations remain valid. Thus, unless your existing DPAHC has expired, you do not have to complete a new Advance Health Care Directive. Because the new Advance Health Care Directive gives you more flexibility to state your health care desires, you may wish to complete the new form even if you previously completed a DPAHC or Natural Death Act Declaration. At a minimum, you should review your existing DPAHC or Natural Death Act Declaration to make sure it has not expired and still accurately reflects your wishes.
WHO MAY I APPOINT AS MY HEALTH CARE AGENT?
You can appoint almost any adult to be your agent. You can choose a member of your family such as your spouse or an adult child, a friend, or someone else you trust. You can also appoint one or more "alternate agents" in case the person you select as your health care agent is unavailable or unwilling to make a decision.
The law prohibits you from choosing certain people to act as your agent(s). You may not choose your doctor or a person who operates a community care facility or a residential care facility in which you receive care, or their employees, unless that person is related to you by blood, marriage, or adoption, or is a co-worker.
HOW MUCH AUTHORITY WILL MY HEALTH CARE AGENT HAVE?
If you become unable to make your own health care decisions, your agent will have legal authority to make health care decisions for you. Your agent must make decisions that are consistent with any instructions you have written in the Advance Health Care Directive form or otherwise made known to your agent. Physicians and other health care professionals will look to your agent for decisions rather than your next of kin or any other person.
If you have not made your wishes known, your agent has broad powers to decide what is in your best interests, considering your personal values to the extent they are known. Your agent can under no circumstances, however, authorize certain procedures specified by statute, including, convulsive treatment, psychosurgery, sterilization, or placement in a mental health treatment facility.
Some of the specific powers which can be given (or denied) to your agent in the Advance Health Care Directive are the power to terminate life support and the powers, after you die, to make organ donations, authorize an autopsy, and direct the disposition of your remains.
CAN I CHANGE MY ADVANCE HEALTH CARE DIRECTIVE?
You can revoke or change an Advance Health Care Directive at any time. To revoke the entire form, including the appointment of your agent, you must inform your treating health care provider personally or in writing. Completing a new Advance Health Care Directive will revoke all previous directives. In addition, if you revoke or change your directive, you should notify every person or facility that has a copy of your prior directive and provide them with a new one.
WHO CAN COMPLETE AN ADVANCE HEALTH CARE DIRECTIVE?
Any California resident who is at least eighteen (18) years old (or is an emancipated minor), of sound mind, and acting of his or her own free will can complete a valid Advance Health Care Directive.
CAN I BE FORCED OR REQUIRED TO SIGN AN ADVANCE HEALTH CARE DIRECTIVE?
No. The law specifically says that no one can require you to complete an Advance Health Care Directive before admitting you to a hospital or other health care facility, and no one can deny you health insurance because you choose not to complete an Advance Health Care Directive.
DO I NEED A LAWYER TO COMPLETE AN ADVANCE HEALTH CARE DIRECTIVE?
No. You do not need a lawyer to assist you in completing an Advance Health Care Directive form. The only exception applies to individuals who have been involuntarily committed to a mental health facility who wish to appoint their conservator as their agent.
HOW LONG IS AN ADVANCE HEALTH CARE DIRECTIVE VALID?
An Advance Health Care Directive is valid forever unless you revoke it or state in the form a specific date on which you want it to expire.
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