Elder Law Estate Planning Legal Topics

How to Allay Fears About Advanced Health Care Directives

Cancer patient comfortable knowing she has a health care directive in placeIn addition to the natural fear of becoming incapacitated, some people hesitate to sign an Advanced Health Care Directive (AHCD) because they worry it will take away their power to make decisions. Here are some facts to allay those fears.

  1. The AHCD doesn’t apply until the patient is incapacitated. As long as you have capacity, you can make your own health care decisions. Unless the document states otherwise, your named agent in the AHCD has no role to play unless and until you lack capacity, i.e., you can’t “understand the nature and consequences of a decision and [make] and communicate a decision.” Prob C §4609. And there’s a rebuttable presumption that a patient has such capacity. Prob C §4657.
  2. If the patient lacks capacity temporarily, decision-making power returns when capacity returns. Your agent under the AHCD only acts when you lack capacity; if you regain capacity, you’re back in the driver’s seat. And if you don’t like the decisions that were made for you while incapacitated, you can revoke the designation of the agent. Prob C §4695(a).
  3. The patient can keep certain people out of decisions. You may have strong feelings about certain people you don’t want to serve as agents or even to offer their views and feelings about the decisions that will have to be made. You can make this clear in a “negative designation” provision in the AHCD specifying whose input a health care provider should not consider. This may be especially useful in unmarried relationships when the family is clearly at odds with the significant other or the relationship in general.
  4. The patient can always revoke or change the AHCD. Nothing in the AHCD is set in stone; as long as the patient has capacity, he or she can change the agent, the medical decisions, or revoke the document altogether at any time. Prob C §4695.

For everything you need to know about AHCDs, including sample provisions, turn to CEB’s California Powers of Attorney and Health Care Directives. Also check out CEB’s program Drafting and Enforcing Advance Health Care Directives, in which expert panelists discuss key aspects of drafting and enforcing advance health care directives, as well as incapacity.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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