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What Are the Implications of Not Having a Health Care Directive in Place?

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What Is a Health Care Directive?

A health care directive (often referred to as an advance health care directive) is a legal document that allows you to specify what you do and don’t want in terms of medical care and treatment if you become incapacitated and unable to state your preferences yourself.

Often, people think this is only valuable for elderly people, but that couldn’t be further from the truth. Unfortunately, everyday events like car accidents or undiagnosed medical conditions can cause even otherwise young and healthy people to become incapacitated. While it’s uncomfortable to consider that possibility, it’s vital for people to prepare for it and hope never to need it.

A health care directive allows you to name an agent who can make decisions on your behalf while you cannot. It can set in place a wide variety of preferences, including what healthcare
providers or institutions you do or don’t want involved, what types of care and treatment you would or wouldn’t want in specific circumstances (for example, forced feeding or breathing if you’re unlikely to survive or gain consciousness without it), and whether or not you’d want your organs to be donated.

In California, a health care directive is comprised of two parts:

  • Power of attorney. This document names the person authorized to make medical decisions on behalf of the incapacitated person.
  • Instructions for health care. This is the list of specific instructions the person would have wanted if they could speak for themselves.

It’s important to understand that a health care directive is not a do-not-resuscitate (DNR) order. The latter applies only to respiratory or cardiac arrest. You can have your doctor prepare a DNR for you to have in your records.

What Happens if There’s No Health Care Directive for Someone Who Becomes Incapacitated?

If someone without a health care directive becomes incapacitated, the medical professionals caring for them will likely turn to the family members closest to the invalid. While this can work

in some cases, in others, it can lead to strife and animosity if the family members disagree about what should be done and who is best suited to make those decisions. For example, if a widower becomes incapacitated and has two children who disagree on whether or not the widower would want life-sustaining treatments, the decision could end up in court in a conservatorship proceeding. That’s costly, time-consuming, and could lead to a permanent rift between the siblings. It could also lead to treatments the invalid would not have wanted, especially if they would have preferred not to be kept alive by artificial means. A judge may also be the one to choose your guardian (conservator) and this may not be the first choice for making healthcare decisions. Conservatorships and expensive, invasive and very time consuming.

To ensure your wishes may be followed, it’s vital to work with an experienced health care directive attorney who understands California law and can work with you to develop a directive that meets your requirements.

How Do I Choose a Health Care Directive Agent?

Choosing the right person to act as your health care directive agent is as important as having the directive itself. People often choose a family member, but that’s not always the best choice. The following are some of the crucial aspects of choosing an agent.

Trustworthiness. Will the person follow your wishes? If you would not want forced feeding or breathing apparatuses used, but the person you’re considering for your agent believes in prolonging life no matter what, can you trust that they’ll put aside their beliefs for yours?

Location. Choosing someone who lives far away is not ideal, as they may need to be on-site as soon as you become incapacitated.
Good assertiveness and communication skills. The agent must be able to communicate well and sometimes forcefully, both with medical staff and family members.

Note: In California, you cannot name your supervising health care provider, any employee of the health care institution where you’re receiving care, or operator or employer of a senior care facility where you live as your agent.

What Is the Process for Setting up a Health Care Directive?

As noted above, there are two documents for a health care directive, the power of attorney that names the agent and the instructions for health care. But before filling those out, it’s recommended that you spend some time determining your wishes and discussing them with close family and your attorney to ensure you’ve covered as many aspects as you can.

Once you’ve laid out your instructions for health care, you should go over them with the person you want to name as your agent. These can be uncomfortable conversations, but they need to happen so you can be sure the agent understands and will follow your wishes if necessary. You may need to consider someone else as an agent if they appear hesitant. It’s also a good idea to have a backup agent in the event that something happens to the primary agent.

Once the directive is finalized, you should provide copies to your family, the agent, your doctor, and if you’re in a hospital, senior facility, or other health organization, provide one to them as well.

What Should I Do if I Want to Set up a Health Care Directive?

Call Cava & Faulkner at 916-685-1225 for a free consultation. This is a vital document for everyone, and you’ll want to ensure it clearly reflects your wishes and leaves little room for error or misinterpretation. We can walk you through what it should include and help you determine what your specific requests are and how to make them as legally binding as possible.