The advance healthcare directive: power of attorney for healthcare and living will
It can happen to anyone. An unexpected medical or psychological crisis, like an accident, illness, or other event strikes and renders you incapable of making or communicating your own healthcare decisions. Are you and your loved ones prepared? The best thing you can do is plan ahead by preparing an Advance Healthcare Directive (AHCD).
An AHCD, as a written legal document, provides explicit instructions about your healthcare and end-of-life medical preferences to a designated agent. The Advance Healthcare Directive includes power of attorney and a living will. Power of attorney provides written authorization for someone to act on your behalf—in this case, in medical matters. A living will specifies the type of medical care you wish to have if you can no longer communicate.
The California Advance Healthcare Directive made simple
By preparing an AHCD in advance, you can direct your own healthcare decisions if you are too sick, unconscious, or cannot communicate your wishes to a physician or other healthcare provider, either temporarily or permanently. In California and other states, the AHCD commonly covers two things: 1) it appoints an agent who is responsible for your healthcare decisions, and 2) it provides individual healthcare instructions for medical facilities and practitioners to follow.
The form is easy to fill out. Make sure you follow procedures for proper execution either through two ascribing witnesses or notarization. And you don’t have to fill out both portions for the directive to be valid. If you don’t appoint an agent, your medical provider is required to follow the instructions. If you do assign an agent and don’t provide explicit instructions, your agent will have authority to direct medical decisions to the healthcare provider.
To be valid, an AHCD requires you to be fully capable at the time of execution. You are assumed to be competent unless proven otherwise. This means you must be at least 18 years old and understand the nature and consequences of the proposed healthcare, including possible risks and benefits—and you must be able to fully communicate decisions about your healthcare. You then are required to sign and date the document and include either two witness signatures or a notary signature.
Other considerations for your advance healthcare directive
In addition to healthcare decisions, you can specify in writing how you want your body to be handled after you die. In California, the agent you designate for healthcare decisions is also responsible for taking possession and disposing of a person’s remains. In addition, you can specify other requests for the agent to carry out, such as funeral arrangements and the final resting place. These may not be legally binding, but most courts would likely enforce these requests because they signify your most recent expressed desires.
If you travel or spend time in another state, it’s wise to find out whether your California AHCD is valid in those locations. You can work with your attorney to find out if your AHCD is accepted by other states.
Another question we often hear is: “Do advance healthcare directives expire?” If you prepared one before 1992, then you’ll have to prepare an updated form, as the laws have changed.
What happens if you neglect to prepare and execute an AHCD? The biggest risk is that your healthcare provider can make unilateral decisions that may oppose your true desires. The other problem is that family members may engage in infighting or litigation in a struggle over the power to control healthcare decisions.
The AHCD is a ten-minute investment in greater peace of mind
We hope you can see the value of an ACHD. All it takes is 10 minutes to complete and execute this important legal document. It’s a highly worthwhile investment of time—and you don’t even need to hire an attorney. We've even made a downloadable PDF of the Uniform Statutory Form Power of Attorney available on our Resources page.
If you do have any questions, we’re here to help. Our highly experience attorneys can help you navigate issues around ACHD, wills, trusts, and more. Contact us today.
Rusconi, Foster & Thomas, APC
We're located in Morgan Hill, California serving Santa Clara, San Benito, Santa Cruz, and Monterey Counties since 1956.