Healthcare Power of Attorney and Life-sustaining
care Topics (April, 2005)
Article for THE LEGAL CORNER: ANSWERS TO COMMONLY ASKED QUESTIONS
REGARDING THE LAW.
WITH ALL THE RECENT NEWS REGARDING THE SCHIAVO CASE, WHAT
ARE MY OPTIONS UNDER CALIFORNIA LAW IN REGARDS TO LIFE-SUSTAINING CARE?
California Probate Code Section 4701, enacted in 1999, sets
forth suggested, though not mandatory language you are permitted to include
in an Advance Healthcare Directive Form (a form that is usually prepared in
conjunction with a Will and/or Living Trust by your attorney). In regards to
the subject of "end-of-life decisions" that form provides with you
with the option of instructing your designated healthcare agent, when you are
unable to make decisions yourself, not to prolong your life if (1) you have
an incurable and irreversible condition that will result in your death within
a relatively short time, (2), you have become unconscious and, to a reasonable
degree of medical certainty, you will not regain consciousness, and/or (3) the
likely risks and burdens of treatment would outweigh the expected benefits of
such treatment. The first two circumstances are rather objective while the third
choice leaves much more discretion with your healthcare agent to determine when
providing you with such care it is deemed to be extraordinary/not something
you would desire. In the alternative you are permitted to designate your agent
to prolong as long as possible within the limits of generally accepted healthcare
standards.
I have found, in 20+ years of practicing law that an overwhelming majority of
clients execute such a form indicating that they do not want their life prolonged
in at least the first two instances and most also agree to allow their agent
to make the decision as to whether the risks and burdens of placing them on
such life support treatment would outweigh the benefits of doing so.
HOW DO I DESIGNATE SOMEONE TO MAKE EMERGENCY HEALTHCARE DECISIONS FOR ME WHEN
I AM UNABLE TO DO SO?
Execution of a new "Advance Healthcare Directive"
provides you with the opportunity to designate a healthcare agent and an alternate
healthcare agent to make emergency healthcare decisions for you when you are
unable to do so. You have the option of including in that document a "personal
care power of attorney" provision to provide for control over practical,
day-to-day care decisions involving your living arrangements, transportation,
entertainment, etc. (when you are no longer able to handle those decisions).
As set forth above, that form also provides optional provisions permitting you
to determine in which situations you may wish to withhold life-sustaining care
(typically a respirator / breathing machine or feeding tube), make organ donations,
and handle post-death decisions such as your funeral arrangements and the disposition
of your remains.
IS MY EXISTING "HEALTHCARE POWER OF ATTORNEY/DURABLE
POWER OF ATTORNEY FOR HEALTHCARE" EXECUTED BEFORE 2000 STILL EFFECTIVE?
If the document was executed prior to 1992, California law
provided that it expired after seven (7) years. Most forms executed thereafter
were not required to obtain a mandatory expiration clause and are still effective,
though they do not include nearly as many directives as the new form enacted
in the year 2000.
The information contained herein is general information about
the law only. The law is subject to change. If you have a specific legal question
and want your question(s) answered, consult with an experienced attorney.