Will your family members and physicians respect your wishes regarding health care choices if you are unable to advocate for yourself? The California Uniform Health Care Decisions Act was enacted by the California legislature in 1999 to protect a person’s dignity, privacy and the fundamental right to control his or her own healthcare decisions. Under the law, you may direct orally or in writing your decisions to provide or withhold medical treatment, and you should expect that, if you are unable to communicate your wishes, your Advance Health Care Directive will speak for you. An Advance Health Care Directive provides (1) instructions regarding life sustaining treatment and other healthcare decisions, and (2) the name of a surrogate (or agent) to carry out your wishes.
If this firm prepared your estate plan, you probably executed an Advance Health Care Directive or Durable Power of Attorney for Health Care. You are ahead of 85% of the population who have not taken that step. All set? Not so fast.
As much as an attorney would like to believe that the document he or she drafts will control in a clinical setting, the reality is that such measures are generally less respected than the law requires. Unless your family and close friends know your values and goals regarding your health care, your wishes, so carefully drafted, could go unheeded while the physician consults family members – perhaps those you haven’t even named in your document, or worse, those you failed to name because you do not trust their judgment – even though the physician’s discussion of your medical condition with persons you have not named as your agents violates California law.
The first step to ensure that your wishes about your health care are respected when you cannot express them is to make sure that your Advance Health Care Directive states, in clear, comprehensive terms, your expectations with regard to resuscitation, life support, nutrition and hydration, and other health care procedures, along with your values and goals so that your physician and named agents are able to make choices consistent with your wishes. The next step is to ensure that your named agents have their own copies and that you have given copies to your treating physician. Whoever is with you on admission to a hospital should deliver a copy to the hospital and to the appropriate nursing station so they know who your named agents are and to avoid discussions with others.
The next necessary step is to discuss those wishes with your named agents, along with family and friends. The discussion should include as many possible situations as you can imagine might occur in the course of your healthcare. If you have separate discussions with different people, be clear and consistent in expressing your wishes. It is human nature to selectively hear what one wants to hear, and if the communication is not consistent, the family feud begins when you are unable to clear up the misunderstanding. Not only will clear and consistent directives prevent a dispute, you will give your loved ones the ability to make the hard decisions without residual regret or guilt.
You may wish to obtain guidance in defining your goals. Specialists in the medical field can assist you and your family in expressing your desires. But if you have no idea what might happen in the hospital, you may find it difficult to define your goals. Educate yourself about healthcare, and about the choices available to you in different situations. If you direct that you never wish to be on life support, what about the situation where life support for two weeks could restore you to health? Be very careful with your words, both written and spoken – it is no exaggeration to say that they can result in life or death.
The bottom line is that creating your Advance Health Care Directive, although necessary, is not enough. Communicating your wishes to family, friends, and doctors must be thoughtful, consistent, and up-to-date.