Estate Planning Essentials: The Advance Health Care Directive

If you are a Gen Xer or older, most likely you remember the highly publicized case of Terry Schiavo, a Florida woman in a persistent vegetative state who tragically became the center of a legal battle between her parents, who wanted to keep her alive, and her husband, who wanted her feeding tube removed because he said that would have been her wish. Since Schiavo did not have a living will, her case worked its way up through state and federal courts, eventually landing on the desk of President George W. Bush, and in the end it took seven years for her feeding tube to be removed.

I can’t think of a better example that illustrates the need for everyone to have explicit end-of-life care instructions, just in case. After all, it is your constitutional right to choose or refuse medical care, so why not exercise it? In California, the Advance Health Care Directive does just this, simply and unambiguously. This Advance Health Care Directive combines a living will and a power of attorney for health care, and following are descriptions of both parts of the document. (To be expected, each state uses slightly different terminology for these documents.)

Living Will: This document describes your health care wishes. The Living Will bears no relation to the traditional will or living trust used to leave property to your beneficiaries at death. It’s a document that lets you state what type of medical treatment you do or do not wish to receive if you are too ill or injured to direct your own care. (Among other things, you can use it to be sure that doctors do – or do not – “pull the plug.”)

Power of Attorney for Health Care: This document names someone to make healthcare decisions for you. The Power of Attorney for Healthcare, also known as a medical power of attorney, allows you to name a trusted person to make medical decisions for you if you are unable to communicate on your own. The person you name to make these decisions is usually called your agent or attorney-in-fact. You can give your agent the authority to oversee the wishes you’ve set out in your health care declaration, as well as the power to make other necessary decisions about health care matters.

Procrastinators take note and go-getters take a breather – it is a misconception that this is a costly and cumbersome process. You do not need an attorney to draft the Advance Health Care Directive for you as you can easily do it yourself. Conveniently, the Advance Health Care Directive provided by the State of California Department of Justice Office of the Attorney General is available on this website: https://oag.ca.gov/consumers/general/care#advance. Click on the link to “California Probate Code Sample Form.pdf”, download the pdf, and print. All you need to do is fill out the form, have it signed by two witnesses, and then keep it in your files. Needless to say, for most people this can be a significant accomplishment in estate planning, an oft-neglected subject.