A complete estate planning binder always includes an Advance Health Care Directive (“AHCD”). The AHCD authorizes a person’s agent to make important health care decisions, when the person cannot make them for him or herself, and gives guidance on the patient’s personal preferences. People’s expectations and reliance on the AHCD needs to be informed by certain realities.
Agents are required to make health care decisions, “in accordance with the principal’s individual health care instructions, if any, and other wishes to the extent known to the agent.” Otherwise, lacking patient instructions and wishes, such decisions are to be made in the “principal’s best interest”, taking into consideration the “principal’s personal values to the extent known to the agent”.
Therefore, a candid and thorough conservation between a person and their possible agents improves the likelihood of a favorable outcome. People should select agents whom they expect to comply with their wishes.
AHCD’s are often completed when a person is well as part of doing one’s other estate planning documents. Important issues, including whether to be kept alive using intubation, ventilators and artificial feeding tubes, are made when the person’s life condition and circumstances are very different from that unknown time in the future when this may become real.
An important reality is that a person’s feelings towards life change over time as the person grows older, their health declines, and their relationships and reasons for living change. Accordingly, what is said in the AHCD needs to kept up to date. In fact, once a person health starts to change due to a serious ongoing illness or due to frequent stays in the hospital, this is a time to reexamine and update the instructions in the AHCD.
AHCD’s are important. What is most important is that the AHCD allows a person to nominate an agent, of their own choice, to make health care decisions if the person lacks capacity, and allows the Agent authority to be involved in the person’s care; a supporting Health Insurance and Portability Act (“HIPAA”) release to allow confidential medical information to be shared with the AHCD is a needed supporting document.
Sometimes a surrogate is appointed by the person at a hospital in which case the surrogate, and not the AHCD agent, will be make decisions when the person is incapacitated. A temporary health care surrogate may be appointed by the person in writing or by declaring the appointment to their attending physician.
The Physician’s Order regarding Life Sustaining Treatment (“POLST”) is an under-utilized health care instrument that works with the AHCD by providing detailed medical orders, signed by a physician. The POLST can include a variety of important health care orders, including do not resuscitate. A POLST is relevant to a person who has a serious illness or health condition or is frail. It becomes part of a person’s medical chart when given to the hospital, assisted living facility or skilled nursing facility. A POLST can even be executed by the patient’s AHCD agent, if the patient is incapacitated.
It is important the patient continue to discuss their health care preferences with their chosen AHCD agent(s) and make sure that these Agents understand the patient’s current values, which can change with life. Staying current may mean executing a new AHCD and perhaps the using a POLST.
The AHCD and POLST should always be kept readily available and given to the patient’s physician and any hospital that they go to. Otherwise, if a person arrives in a medical emergency without these documents being immediately on hand the medical service providers will not know whom to contact. A surrogate may be appointed out of necessity.
The foregoing is not legal advice. If needing legal guidance regarding health care decision planning consult an estate planning attorney.
Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.
