Definitions of Commonly Used Terms...
Capacity- Since July 1, 2000 there is a new legal definition of capacity as it relates to health care decisions. Capacity is the ability to understand the nature and consequences of proposed health care, including benefits, risks, and alternatives, and the ability to communicate decisions. Your primary physician (a person designated by you or your agent), has responsibility for making this decision (if your primary physician is unavailable, another physician will make the determination).
Advance Directive- An advance directive is a document that gives individual health care instruction, or designates an agent to make health care decisions.
There are several types of advance directives:
Living Will - A living will is the general term used for instructions that set forth an individual's wishes regarding terminal conditions, persistent vegetative states, and irreversible comas. A living will is different from a living trust or a testamentary will, both of which relate to property, and not to health care.
Natural Death Act Declaration - Until June 2000, California law specifically authorized persons to make Natural Death Act declarations to set forth wishes regarding terminal conditions, persistent vegetative states, and irreversible comas. Typically, these were used when an individual had no trusted agents to name to make decisions with a power of attorney. Documents executed prior to July 2000 remain valid.
Durable Power of Attorney for Health Care - Until June 2000 California law specifically authorized a document called a Durable Power of Attorney for Health Care. These documents allowed one to appoint an agent (and alternate agents) to make health care decisions in the event one became incapacitated. Optional provisions also allowed one to state one's wishes regarding terminal illness, autopsy, donation of organ, and other specific instructions. Beginning in July 2000, the new Advance Health Care Directives replace these Declarations. Documents executed prior to July 2000 remain valid; pre-printed forms prior to July 2000 are also valid.
Advance Health Care Directive- This is the official new name for advance directives executed after July 1, 2000. The new forms are similar to the old Durable Power of Attorney for Health Care, except the appointment of an agent is optional. One can also designate one's primary physician as well as one's wishes regarding terminal illness, autopsy, donation of organs, and other specific instructions.
Do Not Resuscitate Form- These directives remain a valid way to provide written instruction to emergency personnel regarding wishes about resuscitation. They must be in writing, signed by the individual and his/her physician, and may be evidenced by a medallion as well as the written form.
Answers to Commonly Asked Questions...
Why should I complete an Advance Health Care Directive? All adults should complete an Advance Health Care Directive as a planning tool in the event of incapacity. Even persons in good health may suffer from an accident. If you have already completed a Durable Health Care Power of Attorney, double check your form and make sure it is up to date and has not expired. Documents executed before 1/1/92 expired after seven years. It is a good idea to look over your Directive every year and make sure it is up to date.
Where can I get a form? The most commonly used Advance Health Care Directive is from California Medical Association: 1-800-883 1-CMA. You can also obtain the CMA form from Legal Assistance for Seniors for $2.00 a copy. CMA can also provide a Do Not Resuscitate Form, and instructions on how to obtain a Do Not Resuscitate medallion. Some HMO's provide copies at no cost to their members.
Who should I appoint as my agent? You should appoint trusted persons with whom you will discuss your wishes regarding terminal illnesses and life support as well as other health care wishes. It is not a good idea to appoint more than one person as your agent; appoint one as your primary agent and others as alternates. The doctor will go down the list to find the first available person in an emergency.
What if I don't have a trusted person to appoint as my agent? With the new Advance Health Care Directives form since July 2000, you don't have to appoint an agent. You can fill out the form to set forth your wishes regarding life support and other issues and leave the agent portion blank.
What if I have strong feelings about certain life support measures? If you know that you definitely don't want to be on a ventilator long-term, for example, you should specifically state this in the optional portion of the form. Add separate pages, and sign and date each page; and make sure that you enter the exact number of added pages in the appropriate section of the form.
What are some of the optional provisions that I might consider writing onto the form? The California Medical Association form that is widely used allows you to add additional states of medical treatment desires and specific health care instructions as you wish. Some optional provisions you might consider that are not already on the form are on an optional insert available from LAS. They include:
- Naming your primary physician
- Giving the power to make personal care decisions (e.g., arranging where you will live, how meals will be provided, household help, transportation, mail, and recreation and entertainment for you)
- Non-immediate family members who you wish to be able to visit you in the hospital ("I wish for Mrs. Jones to have the same visitation rights as my immediate family.")
- No-Contest clause - if you think your choice of agent might be controversial ("If anyone contests my choice of agent, that individual be disqualified from acting as my agent.")
- Nominating a conservator (and alternate conservators) of the person should one be necessary
How is the Advance Health Care Directive executed? There are specific legal requirements: you must either have the document notarized or use two witnesses, one of whom is not related to you by blood or marriage. The witnesses cannot be your agent or alternate agents, your health care provider or employees, or own or operate a board-and-care home at which you reside. If you are in a nursing home, the ombudsman must also sign as a witness. Sign and date your document!
What should I do with the form once I execute it? You should make copies and distribute them to your primary physician, all other medical personnel that you work with, your medical records file, your agents, and any family members and friends likely to be called in the event of an emergency. Keep a record of the persons you distribute the form to, so that if you revoke it or make changes, you will be able to replace all the copies.
Can I revoke these documents? While you have capacity, any of the forms can be revoked at any time. It is best to revoke in writing; (changing your agent can only be done in writing). When you execute a new form, it usually has a revocation clause. You should provide copies of the new form to all persons and institutions who had the old form so that there is no confusion.
Produced by Legal Assistance for Seniors (LAS) at 464 Seventh St., Oakland, CA 94607. Can be reproduced with permission, please call (510) 832-3040. The mission of Legal Assistance for Seniors is to assure the independence and dignity of seniors, especially those with the greatest need, by protecting and advocating for their legal rights. LAS is a non-profit agency serving Alameda County seniors age 60 and over. LAS gratefully acknowledges the County of Alameda and the Richard an Rhoda Goldman Fund for their support.Not intended to provide individual legal advice. 11/5/01 LB-3
