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             How Healthcare Directives Work

It's smart to make legal documents setting out your wishes for healthcare in case you are ever unable to speak for yourself.

If you're like most people, you aren't eager to spend time thinking about what would happen if you became unable to direct your own medical care because of illness, an accident or advanced age. But if you don't do at least a little bit of planning -- writing down your wishes about the kinds of treatment you do or don't want to receive and naming someone you trust to oversee your care -- these important matters could wind up in the hands of family members, doctors and sometimes even judges, who may know very little about what you would prefer.

Types of Healthcare Directives

There are two basic documents that allow you to set out your wishes for medical care, both grouped under the broad label "healthcare directives." It's wise to prepare both. First, you need a "declaration," a written statement you make directly to medical personnel that details the type of care you want (or don't want) if you become incapacitated. You can use your declaration to say as much or as little as you wish about the kind of healthcare you want to receive. (For more details, see What You Can Cover in Your Healthcare Directives.)

Next, you'll want what's usually called a "durable power of attorney for healthcare." In this document, you appoint someone you trust to be your healthcare agent (sometimes called an "attorney-in-fact for healthcare" or "healthcare proxy") to see that doctors and other healthcare providers give you the type of care you wish to receive. (If you need help picking the right person for this job, see Choosing Your Healthcare Agent.)

In some states, both of these documents are combined into a single form -- often called an "advance directive."

A Healthcare Directive by Any Other Name . . .

Depending on the state, your healthcare documents may be called by one of several different names: advance directive, medical directive, directive to physicians, declaration regarding health care, designation of health care surrogate or patient advocate designation. A healthcare declaration may also be called a "living will," but it bears no relation to the conventional will or living trust used to leave property at death.

Who Can Make Healthcare Directives

You must be at least 18 years old to make a valid document directing your healthcare. You must also be of sound mind -- that is, able to understand what the document means, what it contains and how it works.

Making Your Documents Legal

Every state requires that you sign your healthcare documents. If you are physically unable to sign them yourself, you can direct another person to sign them for you.

You must sign your documents, or have them signed for you, in the presence of witnesses or a notary public -- sometimes both, depending on your state law. The purpose of this additional formality is to ensure that there is at least one other person who can confirm that you were of sound mind and of legal age when you made the documents.

When Your Healthcare Directives Take Effect

Your healthcare documents take effect if your doctor determines that you lack the ability, or capacity, to make your own healthcare decisions. Lacking capacity usually means that:

< you can't understand the nature and consequences of the healthcare choices that are available to you, and

< you are unable to communicate your own wishes for care, either orally, in writing or through gestures.

Practically speaking, this means that if you are so ill or injured that you cannot express your healthcare wishes in any way, your documents will spring immediately into effect. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your healthcare agent or close relatives) will decide whether it is time for your healthcare documents to become operative.

In some states, it is possible to give your healthcare agent the authority to manage your medical care immediately. If your state allows this option, you may prefer to make immediately effective documents for any of several reasons, including:

  Researchers from the University of California, San Diego Medical School, found that living wills had little impact on the type and expense of medical treatment provided to dying patients. The researchers studied 204 gravely ill patients at two San Diego, California, medical centers, half of who had filled out advance directives.

  Among the 00 who died, the group of living wills incurred charges of $9,502 in their last month of life, while the hospital bills for the others was almost identical: $9,700. The author of the studies said living wills alone did not solve the problem of curbing treatment that extends life without enhancing it.

Taking quick action. Your agent will be able to make decisions for you as soon as the agent feels that you need help, without first having a doctor confirm that you are incapacitated. This may be particularly important if you are not under the care of a doctor with whom you have an established, trusting relationship.

Keeping control in the hands of your agent. You may feel that your agent, not a doctor, is the best person to decide that you can no longer direct your own medical care.

Asking your agent to step in early. If you make your documents effective right away, your agent can start making decisions for you whenever you decide that's what you want, even if you still have the capacity to make your own choices. If illness, exhaustion or any other circumstances have left you feeling that you'd like someone you trust to deal with your doctors and make treatment choices for you, making an immediately effective document gives you that flexibility.

Making your document effective immediately will not give your agent the authority to override what you want in terms of treatment; you will always be able to dictate your own medical care if you have the ability to do so. And even when you are no longer capable of making your own decisions, your healthcare agent must always act in your best interests and diligently try to follow any healthcare wishes you've expressed in your healthcare declaration or otherwise.

When Your Healthcare Directives End

Your written wishes for healthcare remain effective as long as you are alive, unless you specifically revoke your documents or a court steps in. Court involvement is very rare. Here are a few more specifics about when your healthcare documents are no longer effective:

You revoke your document. You can change or revoke your advance directive at any time, as long as you are of sound mind.

A court invalidates your document. Most judges recognize that a court is normally not the right place to make healthcare decisions. However, if your healthcare is the subject of a dispute and someone questions the validity of your healthcare directives, the matter may end up before a judge.

If someone doubts that you had the mental capacity to prepare a legally valid healthcare document, that person can ask a court to invalidate your document. Such lawsuits are rare, but they do sometimes occur. The burden of proving that you were not of sound mind when you made your advance directive falls on the person who challenges the validity of your document. (In other words, the law presumes that you had the mental capacity to make your healthcare documents.)

It is also possible that a court could invalidate your document if it wasn't properly completed -- for example, if you did not meet your state's requirements for having the document notarized or witnessed. If this happens, however, it is still likely that any wishes for healthcare you set out in the document will be followed -- as long as they are clearly expressed and you were of sound mind when you wrote them down. In the famous case Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the U.S. Supreme Court said that any strong evidence of someone's wishes for care should be honored. So your directions won't be ignored simply because of a technical error.

A court revokes your agent's authority. If, after your healthcare documents take effect, someone believes that your healthcare agent is not acting according to your wishes or in your best interests, the concerned person can go to court and ask for an investigation of your agent's behavior. If a court finds that your agent is acting improperly and revokes his or her authority, the job will go first to an alternate agent you named in your advance directive. If there is no available alternate -- or if the court invalidates your entire document for one of the reasons discussed just above -- a conservator will be appointed to make healthcare decisions for you.

You get a divorce. Getting divorced has no effect on your written directions for healthcare (your healthcare declaration). But if you named your spouse as your healthcare agent, his or her authority is automatically revoked in a number of states. If you named an alternate agent in your advance directive, that person will take over. If you get a divorce before your healthcare directives take effect, it's wise to eliminate confusion by starting over. Even if you named an alternate agent in your directives, make a new document and name someone else as your agent.

After your death. Generally, your healthcare documents are no longer necessary when you die. In some states, however, your healthcare directives remain effective after your death for some very limited purposes. Your agent may be permitted to supervise the disposition of your body, including authorizing an autopsy or organ donation, unless you specifically withheld these powers when you made your healthcare documents.

Download a generic California Healthcare Decision Form: PDF format | ZIP format


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C. Francis Baldwin
Updated Wednesday, May 26, 2004