Accidents happen every day and families are continuously faced with making tough medical decisions on behalf of their loved ones. Most often, clients seeking to prepare an Advanced Health Care Directive wait until it is absolutely necessary, or when it is too late. An Advanced Health Care Directive is a basic estate planning tool that everyone should have, regardless of age or medical condition. This article will outline what Advanced Health Care Directives are, and why they are important. It will also discuss the alternative to executing an advanced health care directive-a conservatorship of the person.
What is An Advanced Health Care Directive?
An Advanced Health Care Directive is a legal document explaining one’s wishes about medical treatment if one becomes incapacitated or lacks the mental capacity to make life decisions. (citation omitted). The document directs family members and friends on what to do when a loved one is faced with issues of irreversible coma, artificial life support, or terminal illness. An Advanced Health Care Directive can also provide for final arrangements in the case of death, such as memorial services, funeral and burial arrangements. An Advanced Health Care Directive can only be executed by a competent adult.
Why Do you Need One
An Advanced Health Care Directive allows incapacitated persons’ wishes to be heard. Often times, family members do not discuss what they would like done if they were faced with issues of terminal illness or incapacitation. It can be difficult for a family to make decisions on serious issues like whether or not to take a loved one off of life support. An Advanced Health Care Directive allows the incapacitated individual to speak-to make those difficult decisions for themselves.
A primary health care physician is also named in the Advanced Health Care Directive. This ensures that the patient is receiving the proper care from a trusted and reputable physician. In addition to an incapacitated person’s wishes being heard-and primary care physician being named-an Advanced Health Care Directive also assists in avoiding potential litigation.
Terri Schiavo was on life support from 1998-2005. She was 26 years old, and had no previous health issues before slipping into a coma, which caused severe brain damage. Terri Schiavo did not have an Advanced Health Care Directive. Ms. Schiavo’s husband wanted her taken off of life support, while her parents wanted her to remain on life support. Florida state law determined that Ms. Schiavo’s husband could terminate her life because she was in persistent vegetative state. Ms. Schiavo’s parents appealed this decision on several occasions. Ultimately Mr. Schiavo prevailed and Terri Schivao was taken off of life support after 7 years of litigation. If Terri Schiavo had an Advanced Health Care Directive, her family would have saved thousands of dollars in litigation and attorney fees, as Ms. Schiavo would have spoken for herself.
Many individuals wait until it is too late to attempt to execute an Advanced Health Care Directive. Only competent and capacitated individuals are permitted by law to execute Advanced Health Care Directives. A Conservatorship of the person, however, can allow a family member or other surrogate to make health care decisions for someone who is incapacitated or incompetent.
Alternative to an Advanced Health Care Directive- Conservatorship of the Person
A Conservatorship of the person is an alternative to executing an Advanced Health Care Directive. A conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs (see Cal. Probate Code section 1801 (a)). The conservator manages the physical health, medical care, food, clothing and shelter for the conservatee (Id.), and in some instances, makes important medical decisions on behalf of the conservatee. Initially, the conservatee is presumed to have the capacity to make medical decisions (see Cal. Probate Code section 2354), unless the court finds that the conservatee lacks the capacity to give informed consent to any form of medical care under California Probate Code section 1881 and 2355. The conservator in this case would have the power to make all medical decisions on behalf of the conservatee.
With all benefits of a conservatorship it can be an expensive alternative. To establish their role, a conservator may have to hire an attorney to petition the court and file the necessary legal documents to obtain a court order for a valid conservatorship of the person. Most attorneys charge $200-$400 an hour for conservatorship proceedings.
Executing an Advanced Health Care Directive is simple, and costs an average of $300-$600 for an attorney to draft. It is an important document to have, as everyday events happen which may require direction as to your medical treatment. Allow your wishes regarding end-of-life decisions, medical treatment and final arrangements to be heard and execute an Advanced Health Care Directive right away!
Verleana D. Green, Esq.
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