No estate planning consultation is complete without a discussion about how health care decisions will be made if the client becomes incapacitated. These discussions aren’t just for situations in which the client is very ill or elderly. In fact, Nancy Cruzan, the key individual in the landmark case Cruzan v Missouri Dep’t of Health (1990) 497 US 261, 111 L Ed 2d 224, 110 S Ct 2841, was only 25 years old at the time of her tragic automobile accident, and Terri Schiavo was only 26 when she collapsed into a coma. The advance health care directive may well be the most important document your client ever signs. And don’t forget that attorneys should also be clients when it comes to estate planning.
The potential consequences of not signing an advance directive are huge. Without an advance health care directive (AHCD), the client could be subject to a conservatorship proceeding that seeks court authorization to make critical health decisions in the event of incapacity. Such proceedings are often expensive and time-consuming and can be an affront to the client’s dignity. In the event of a family dispute over a client’s wishes, a client without an advance directive might even be thrust into the national and political limelight, as in the heart-wrenching case of Floridian Terri Schiavo.
The three main types of documents used in planning for health care decision include:
- A statutory advance health care directive form set out in Prob C §4701;
- Preprinted forms, including the California Medical Association (CMA) form, the California Hospital Association (CHA) form, or a simply worded form from the Institute for Healthcare Advancement; and
- An attorney-drafted custom form, complying with statutory requirements.
Selecting the appropriate option depends on the health care choices the client wishes to make. The CMA form is the most widely used because hospital staff, hospice workers, doctors, and other health care providers accept it as a legally binding document. Using the CHA form may be prudent if the person signing it wants additional protection for not prolonging his or her life in situations not covered in the CMA form. The Institute for Healthcare Advancement, a nonprofit organization, has developed a form specifically for those 90 million American adults who are unable to read above a fifth-grade reading level; this form is useful for a client who may have trouble reading or comprehending legal documents.
An attorney-drafted form can be problematic because it may be questioned by an entry-level health care facility employee who is familiar only with the preprinted forms; this can cause delays in treatment while the document is being approved by a hospital’s legal department. Attorney-drafted forms may occasionally be appropriate for a client with an unusual health condition or specific health care wishes that can be effectively communicated only in a custom document.
For information on these options, including sample forms, and several related documents, go to California Powers of Attorney and Health Care Directives, chap 8. And definitely check out CEB’s program Drafting and Enforcing Advance Health Care Directives, available On Demand.
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