As we are settling into the time of year where the days become shorter and the time spent with our loved ones becomes longer, your Advance Health Care Directive is probably not on your mind one single bit…but it should be!
The Advance Health Care Directive is one of the most important documents in your entire estate plan. If yours is stuck in a drawer somewhere, maybe with your last property tax bill – well, how is your Agent going to know what to do when it comes time to put your planning into action?
To get the most from your Advance Health Care Directive, you should understand what your Advance Health Care Directive is (and isn’t), what it says, and your Agent should be knowledgeable about your directives.
First Things First – What is an Advance Health Care Directive?
An Advance Health Care Directive is a legal document that is a key component of a complete estate plan. In that document, you accomplish two things: 1) You name a person to make medical decisions on your behalf if you become incapable of making them for yourself (we call this person an “Agent”); and, 2) You provide instructions on your medical care and end-of-life care preferences for your Agent to carry out on your behalf.
If an adult person becomes incapable of making medical decisions and they do not have an Advance Health Care Directive, then their family will likely be faced with establishing a Conservatorship for the long-term management of their care. In some cases, this court oversight may be preferable; however, many people wish to avoid the expense, delay, and public nature of conservatorship proceedings – those people should have an Advance Health Care Directive!
In California, an Advance Health Care Directive is the combination of two types of documents you may have heard of before: A Medical Power of Attorney and a Living Will. A Medical Power of Attorney is a document that simply appoints an Agent to make medical decisions for another person. A Living Will is a document that provides instructions to the Agent on how to make medical decisions on behalf of another. To simplify things, we combine those two components into one document, which we call an Advance Health Care Directive.
Another document that sometimes is confused with an Advance Health Care Directive is a POLST, or Physician’s Orders for Life-Sustaining Treatment. The POLST is a physician’s order that is completed with the patient and signed by the physician on how emergency life-sustaining treatments should be handled for that particular patient. It is not a substitute for an Advance Health Care Directive, because it does not name an Agent to make decisions and it gives no guidance to the Agent on how to make those decisions.
What Does Your Advance Health Care Directive Say – and Is It Up-To-Date?
If you shoved your Advance Health Care Directive in a drawer somewhere in your house and haven’t reviewed it in a while, you’re like a lot of people. Unfortunately, what I find in my practice is that this can mean: 1) It may be difficult to find your Advance Health Care Directive if there is a medical emergency, 2) You may not remember who you named as your Agent – and worse – it may not be who you want it to be, and/or 3) Your instructions may be out of date.
Instead of using the “drawer method” (or equivalent), I recommend that you give a copy of your Advance Health Care Directive to your Agent and to your doctor, to scan into your chart. This way, everyone who needs a copy of the document has it if an emergency arose.
You should also review the Advance Health Care Directive (along with your other documents…) on a regular basis! You may be surprised that your wishes from ten years ago are not the same as your wishes today. A good general rule of thumb is to review your documents every time there is a major life event impacting you and your Agent: 1) births, 2) deaths, 3) marriages, 4) divorces, and 5) physical relocations. In the case of the Advance Health Care Directive, you should also review it before any planned procedures.
Talking With Your Agent
Giving your Agent a copy of your Advance Health Care Directive is a good first step. But if you want to be an A+ student, you really need to have a conversation with your Agent about what the document says. You should explain to them what their responsibilities are and you should explain to them how the document instructs them to handle end-of-life decisions. You should also discuss things like – what quality of life looks like for you, your religious preferences, procedures that you don’t want to have under any circumstances, whether you want to be buried or cremated – you get the point.
Admittedly, these are hard conversations to have! They require a certain level of undivided attention that is hard to find in our increasingly busy world. In addition, there is an undeniable emotional component to these topics that makes these conversations seem unapproachable. I often recommend to clients that they take advantage of the upcoming holidays to have these important discussions. I suggest giving your Agent plenty of advance notice that you intend to have a conversation with them about your medical wishes so that they can prepare themselves for that discussion. I also suggest making a checklist of items you wish to discuss, so that the conversation is efficient. Make sure to leave time for your Agent to ask questions. While these conversations can be difficult, they are so important to have before the need arises!
The Bottom Line
If you’ve got an Advance Health Care Directive in place, you’ve taken the first step – congratulations! To get the most of your Advance Health Care Directive, make sure that you 1) Review it regularly to ensure that it is accurate, 2) Give copies of the document to your Agent and doctor, and 3) Discuss your wishes with your Agent so that they know how to respond when the time comes to put planning into action.
Michelle A. Martin is an estate planning and estate administration attorney with Robertson Law Group in Lincoln, California. She is a Certified Specialist in Estate Planning, Trust, and Probate Law, as designated by the California State Bar Board of Legal Specialization.
In her spare time, she enjoys the great outdoors through hiking, backpacking, camping, kayaking, fishing, and everything in between. She can be reached at 916-434-2550.