Medical Decision Making.

The most common document prepared by California attorneys for estate planning as it relates to medical decision making is the Advance Health Care Directive.

There are also two other documents that involve medical decision making. One is called the Living Will and the other is a Do Not Resuscitate Order.

1.     The Advance Health Care Directive is a document where you nominate agents to make medical decisions for you in the event that you are not able to do so. You also indicate your global wishes involving end of life decisions, burial/cremation, funeral arrangements, organ donation and any other wishes that you feel strongly about.

An up-to-date Advance Health Care Directive will also contain language pursuant to HIPAA laws allowing your agent to access your medical files and otherwise be involved in medical decision making that is considered private according to the medical privacy laws.

2.    A Living Will is another document where you indicate your wishes for treatment in the event you are terminally ill. Typically this document comes into effect when you are terminally ill or in an irreversible coma.

It is not as widely used in California any longer since the Advance Health Care Directive often contains the same elements found in a Living Will.

If you have very strong feelings about nutrition, hydration and other related care should you become terminally ill, please discuss with your estate planning attorney and incorporate into your Advance Health Care Directive.  A Living Will does not name agents for you to make decisions for you. A Living Will also does not function as a will or trust that directs who is to get your property after you pass away.

3.    A Do Not Resuscitate Order (also called a DNR) is not included in either the Advance Health Care Directive or Living Will.

Instead it is a separate document prepared in conjunction with your doctor or other medical provider stating that you do not wish to be resuscitated or brought back to life if you stop breathing for whatever reason.

This kind of document involves your doctor only and needs to be signed by your doctor as well. An emergency medical personnel will not follow these orders during transport to a medical facility. It typically only works while you are already in a medical facility and it is visibly included in your file with notations for all medical personnel to honor your wishes. If you feel strongly about having one of these orders in place, discuss it with your medical provider.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Comments

[living trust]

So Advance Health Care Directive and living wills are different right? Actually what is the difference between them?

[Jim]

Jenni, that's good. I would also note that it is never clear which state's law will apply (if you live in CA, but the heirs live in FLA, who knows? This is what happened in Hanson v. Denckla, a law school favorite--the heirs were in FLA, which was strict about the # of witnesses to an irrevocable trust) so you want a setup which will direct the heirs regardless of which state you are in. Also, the law could change before you die.

Someone once asked me if I would want to live to be 125. I would, under 2 circumstances--if healthy enough to enjoy life (not necessarily run marathons, but play golf or dance or whatever) and had enough money to live on. I would NOT want to be a burden on heirs or be a vegetable. I think most people feel the same way.

[Pinarhisarda Satilik Daire]

Thank you.

[Sarah]

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Sarah

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