Advance Health Care Directives


California Health Care Power of Attorney

Advance health care directives are also known as health care powers of attorney, health care proxies or a living will. Ethical wills are also used to communicate the personal beliefs, values and desires of the principal, the person who executes the document.

An advance health care directive provides for the designation of an agent to make health care and other personal decisions for the principal. Examples of personal decisions include determining the place of residency of the principal, controlling visitation of the principal in his or her home or in a health care facility and electing burial or cremation of the principal.

When to Draft an Advanced Health Care Directive

An advance health care directive can be drafted to be immediately effective, or it can be effective only upon the disability of the principal. In the event the advance health care directive is to become effective only upon disability, there must be a mechanism to establish disability of the principal, such as certifications from two physicians familiar with the health of the principal. Another alternative is to designate a disability panel which consists of a group of persons trusted by the principal, a majority of who will certify the principal’s disability before the advance health care directive becomes effective. This process is not necessary if the advance health care directive is immediately effective. Riverside elder law attorney often drafts advance health care directives that are immediately effective as to the spouse of the principal, but may require a determination of disability if an agent other than the spouse is designated to act.

How to Draft an Advanced Health Care Directive

Advance health care directives and health care powers of attorney can be obtained from an elder law or estate planning attorney. Advance health care directives can also be obtained from software or through the use of paralegal services, internet providers and pre-printed forms. The California Medical Association has also developed recommended forms that can be obtained from physicians and hospitals. The California legislature has also created a statutory advance health care directive under Probate Code Section 4700 -4701. Some religious organizations have provided guidance on how to draft an advance heath care directive to be in compliance with that religion’s beliefs. While all these documents may be legally enforceable, the content of each vary substantially. Because of the substantial variance in the content, it is possible one advance health care directive may be effective to handle a situation while another advance health care directive may be ineffective. If an advance health care directive is not effective, a conservatorship may be necessary.

An advance health care directive is a very important component of a comprehensive estate plan. As such, it is critically important that the principal uses great diligence in designating his or her agent. Many persons simply designate their oldest child, which is not always the best planning option. In cases where there may be disagreement among family members and the possibility of a family member not following the directions of the principal, it is sometimes prudent to designate a non-family member, perhaps even a professional fiduciary, to serve as the health care agent.

HIPAA Authorization Form

Access to “protected” health care information is governed by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. 104-191, 45 CFR §§ 160–164. In order to assure that health agents (as well as trustees and financial power of attorney agents) can gain access to the health care information of the disabled principal, a HIPAA Pre-Authorization Form, authorizing health care professionals to release health care information to designated agents and trustees is necessary. The lack of a HIPAA Authorization Form in an estate plan could result in agents and trustees having to seek court orders to gain access to this information.

What is a POLST?

A POLST or Physician’s Order for Life Sustaining Treatment is a document obtained from health professionals that designates the wishes of the patient with regard to life sustaining treatment or end-of-life decisions. In California, the POLST is a bright pink pre-printed form to be completed with the assistance of the attending physician or other health care professional and kept with the patient’s health records at the hospital or nursing home. If the patient returns home, the POLST should be prominently displayed to catch the attention of EMTs or other emergency personnel called to the residence. The POLST is meant to be a compliment, and not replace, the advance health care directive.

Want to learn more about Advanced Health Care Directives? To schedule a complimentary one hour consultation to discuss health care decision making with one of our elder law and estate planning attorneys at our Riverside law office, call 951-787-7711 or contact us online.

 

Dennis M. Sandoval, A Professional Law Corporation, of Riverside, California, provides representation throughout Riverside, Corona, Norco, Moreno Valley, Eastvale, Jurupa Valley, Mira Loma, Redlands, Ontario, Rancho Cucamonga, Upland, Chino, Chino Hills, San Bernardino, Fontana, Rialto, Colton, Perris, Hemet, Sun City, Temecula, Murrieta, Menifee, Winchester, San Jacinto, Lake Elsinore, Idyllwild, Lake Arrowhead, Crestline, Running Springs, Wrightwood, Yucaipa, Palm Springs and Palm Desert.

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