1. What is an Advance Health Care Directive? (Top)
An advance health care directive (“AHCD”) is a document in which a person (principal) appoints an agent to make health care decisions for a person should the person ever become incapacitated.
2. Why should I have an Advance Health Care Directive? (Top)
If you were to ever become incapacitated (See California Probate Code §812) and thereby unable to make health care decisions for yourself, somebody would need to be appointed to make health care decisions for you. Since medical treatment is not put on hold on the account of your incapacity. An AHCD fills this gap, by appointing an agent who will make health care decisions for you while you are incapacitated.
Conversely, should you lack an agent and become incapacitated, a court will appoint a conservator to serve on your behalf. These proceedings are costly, lengthy and avoidable if an AHCD is properly executed.
3. What is a conservator and what do they do? (Top)
A conservator of the person is appointed to manage the personal care of someone who cannot properly provide for his or her personal needs for physical health, medical, care, food, clothing or shelter. California Probate Code §1801.
4. Who may serve as my agent? (Top)
Any person you believe is caring and competent enough to make very important medical decisions may be your agent. Most couples pick each other as their agent. However, such individuals in most instances may not serve as your health care agent:
(1) The supervising health care provider or an employee of the health care institution where the patient is receiving care.5. When does an Advance Health Care Directive become effective? (Top)
The agent’s authority becomes effective only on a determination that the principal lacks capacity, unless the AHCD provides otherwise. California Probate Code §4682.
6. Can the agent access my medical records? (Top)
Unless limited by the AHCD, the agent has the right to receive information about the principal's medical condition from all treating health care providers, and is authorized to review the principal's medical records and consent to their disclosure. California Probate Code §4678
7. Are there any medical decisions an Advance Health Care Directive cannot grant? (Top)
Yes, the agent does not have the power to commit the principal to a mental health treatment facility or to authorize convulsive treatment, psychosurgery, sterilization or an abortion. California Probate Code §4652.
8. Do health care providers require an Advance Health Care Directive? (Top)
No, a health care provider cannot require a patient to possess an AHCD before administering treatment. California Probate Code §4677.
9. How can I execute an Advance Health Care Directive? (Top)
There are a number of forms to choose from:
(1) A statutory form. California Probate Code §4701
(2) California Medical Association form.
(3) Attorney-drafted custom form, complying with statutory requirements.
The California Medical Association form is recognized by health care providers throughout California and is often more readily accepted than less familiar forms.
For execution, the AHCD must be dated and signed by two adult witnesses. California Probate Code §4673. One of the two witnesses cannot be related to the principal by blood, adoption or marriage, or be entitled to part of the principal's estate. California Probate Code §4674. Execution before a notary public is sufficient as well. California Probate Code §4673.
10. I have more Advance Health Care Directive questions how can they be answered? (Top)
Please call my office at (408) 866-8382 or email me at s.miri@mirilaw.com