Understanding Estate Planning – Part 4


(Originally Published October 2013)

WHAT IS AN ADVANCED HEALTH CARE DIRECTIVE? An Advanced Health Care Directive (AHCD), also called a “Living Will”, is a document in which you can specify now who you want to make health care decisions for you in the future in the event that you are unable to make these decisions yourself, generally when you’ve become incapacitated. As you may have guessed, this sounds a lot like the Durable Power of Attorney I discussed in last week’s Article and in fact until fairly recently this was called a Durable Power of Attorney for Health Care. The name was changed because legally powers of attorney die when you do. Yet the AHCD also includes post-death instructions such as organ donation, autopsy, and funeral and memorial wishes.

SO WHAT ARE YOU DIRECTING? Your AHCD directs your designated Agent as well as your medical care providers as to your specific desires when facing a medical decision which you are unable to make for yourself. Although these decisions are very personal, over time many people have reached a common desire that when facing a life-ending medical condition, they do not want to be kept alive only because medical technology can keep the body going even when you are effectively gone. Many people remember the case of Karen Ann Quinlan who has kept alive in a hospital for nearly 10 years even though she was in what is called a “persistive vegitative state”. Most say they don’t want to live like that. Yet none of us wants the plug to be pulled before we’re ready to go so with your AHCD you designate your choices of treatment if you every fall into such a condition.

WHAT ARE THE DECISIONS TO BE MADE? The decisions generally fall into two categories: 1) Pre-death; and 2) Post-death.

1. Pre-Death Decisions – although the State of California has a basic form for AHCD’s, our forms seek to better clarify the choices to be made. Here’s the typical language:

“I recognize that modern medical technology has made possible the artificial prolongation of my life beyond natural limits. I do not wish to artificially prolong the process of my dying if continued health care will not improve my prognosis for recovery or otherwise enable me to live a productive and/or enjoyable life. Therefore, I do not want efforts made to prolong my life and I do not want life-sustaining treatment to be provided or continued: (1) if I am in an irreversible coma or persistent vegetative state; or (2) if I am terminally ill and the use of life-sustaining procedures would serve only to artificially delay the moment of my death; or (3) under any other circumstances in which the burdens of the treatment outweigh the expected benefits. In making decisions about life-sustaining treatment under provision (3) above, I want my agent to consider the relief of suffering and quality of remaining life as well as the extent of the possible prolongation of my life. I understand that if there is a conflict between my agent’s decision and this statement, this statement shall take precedence.”

“For purposes of this statement:
A) “Life-sustaining treatment” means any medical procedure, treatment, intervention, or other measure including artificially or technologically supplied nutrition and hydration that, when administered, will serve principally to prolong the process of dying.
B) “An irreversible coma”, means a coma from which the treating physicians have reasonably concluded I will never regain consciousness.
C) “Persistent vegetative state” means a state of permanent unconsciousness that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by my attending physician and one other physician who has examined me, is characterized by both of the following:
(i) I am irreversibly unaware of myself and my environment, and
(ii) There is a total loss of cerebral cortical functioning, resulting in my having no capacity to experience pain or suffering.
D) “Terminal condition” means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by my attending physician and one other physician who has examined me, both of the following apply:
(i) There can be no recovery; and
(ii) Death is likely to occur within a relatively short time if life sustaining treatment is not administered.”

For each of these decisions, you can either accept the language, reject the language, or modify the language to say something else. Furthermore, additional provisions in the AHCD allow you to designate that irregardless of what directions you give to the above conditions, pain relief is more important and your Agent and medical providers are to allow you to die as naturally and as painlessly as possible.

2. Post Death Decisions – deal with the normal decisions that have to be made after anyone passes away. These typically include:
– Anatomical Gifts
– Autopsy
– Disposition of Remains, ie: cremation or burial
– Arrangements for Funeral or Memorial Service

WHEN DOES THE AHCD TAKE EFFECT? Like powers of attorney, the AHCD takes effect as soon as the document is signed although the right of the Agent to exercise the powers does not take effect until the occurrence of some event, usually the incapacity of the Principal.

HOW LONG DOES THE AHCD POWERS LAST? The powers under the AHCD exist as long as necessary to carry-out your wishes both before and after death… or until you revoke the powers.

In planning your Estate now, you are demonstrating the foresight and concern that will save your family and survivors time, trouble, money and grief. Our easy-to-follow Estate Planning Worksheet will guide you in assembling all the information you need to get your personal Estate Plan started. We look forward to assisting you and your family in this most important concern. Also please feel free to refer our services to other family members or friends who may not have begun their own estate planning. If you are ready to get started now, call our office at (916) 966-2260 and schedule an Estate Planning Consultation.