Living Will Can Be Crucial

By Curtis Kaiser

Last month’s column discussed one of the basic components of a solid estate plan — a financial power of attorney. As we continue to go through the basic components, in this column I will discuss the importance of medical power of attorneys, formerly known as living wills and today most commonly referred to as California Advance Health Care Directives.

Proper use of these documents can help avoid disputes or controversies over your medical care or the care of a family member, which in a worst-case scenario, can result in a situation like that with the Terry Schiavo family in Florida in 2005.

The Advance Health Care Directive is designed to accomplish two goals: 1. To provide instructions on what your doctors should do if you are in a terminal condition with no hope of recovery and 2. To nominate someone to make medical decisions for you (an “agent”) in the event that you are medically incapacitated.

An Advance Health Care Directive can be completed by any California resident who is at least 18 years old and is of sound mind and acting of their own free will. The individual completing the directive can include specific health care instructions and can appoint almost any adult to act as their agent. The only restrictions on agent selection are that you may not choose your doctor or certain caregivers who work for a residential care facility at which you are receiving care. A lawyer is not required to complete a valid form, but attorneys often can help customize an Advance Health Care Directive to work effectively as part of a comprehensive estate plan.

With the passage of the federal Health Insurance Portability and Accountability Act (HIPAA) more than a decade ago, doctors and hospitals are under strict privacy restrictions when it comes to information about your health condition. Post-1996 Advance Health Care Directive documents prepared by your attorney should be updated to include information designed to serve as a “HIPAA Release.” This release will allow the family members and friends who have been specifically authorized by you to have access to your medical records and your medical condition.

The Advanced Health Care Directive is now the legally recognized format for a Durable Power of Attorney for Health Care and a living will in California. If you had a durable or medical power of attorney or a living will that was prepared before 1996, you or your attorney should review the documents.

Curtis Kaiser is a longtime Long Beach resident whose law practice focuses on estate planning and contract law. The information presented in this column is not to be construed as legal advice.