Documents that explain people’s end-of-life wishes have been much in the news yet little explained. Following is some basic information about end-of-life decision making.
What are some kinds of end-of-life instruction documents?
A Living Will can express your preferences regarding each of the methods of artificial life support, or you can use this document to reject all artificial life support if you wish to die a natural death. (California law now prefers Advance Health Care Directives for this purpose.)
A Durable Power of Attorney for Health Care allows you to name an “agent” to make health care decisions for you in case you are unable to make your own decisions. You can choose a backup agent to act if your first choice is unavailable.
An Advance Health Care Directive, in the popular form provided by the California Medical Association, allows you to express your wishes regarding life support and other issues.
A Physician Order for Life-Sustaining Treatment (POLST) is a form allowing doctors to withhold specific types of treatment, especially for people who are seriously or terminally ill. We suggest that patients exercise caution in considering whether to sign a POLST.
What is the most widely used health care instruction form in California?
The California Medical Association (CMA) publishes an Advance Health Care Directive Kit that allows you to: 1) Create a Durable Power of Attorney for Health Care 2) Choose among prepared statements, or write your own statement, regarding which life support methods (if any) shall be used in your care, for how long; and 3) State whether you wish to be an organ or tissue donor. The CMA Advance Health Care Directive Kit includes instructions and explanations. The forms are $6.00 for members of the public. You can order one at www.cmanet.org, or by calling 1-800-882-1262.
What are other sources of information about end-of-life decisions?
The California Medical Association Web site, at www.cmanet.org, provides information about Advance Health Care Directives. [The California Attorney General’s office offers its own guidance on “end of life” decisionmaking. The Coalition for Compassionate Care of California provides information about the new “End of Life Option Act” for physician-assisted suicide, which was upheld by a California court in mid-2018. For thoughts on how ableism and other discrimination affect social pressures to give up care due to age, disability or frailty, see this commentary from the Disability Rights Education and Defense Fund and the site of Not Dead Yet, an activist disability rights group that opposes assisted suicide.
Should I Redo My Advance Health Care Directive or Durable Power of Attorney for Health Care?
If your form was executed before 1992, then you should strongly consider creating and executing a new updated form. Durable Powers of Attorney for Health Care executed before 1992 expire seven years after the date of execution. In general, it may be a good idea to update an Advance Health Care Directive every five years or so.
If you executed a CMA Durable Power of Attorney for Health Care before 2000, be aware that any statement you made about life support will not be considered a mandatory statement. The current CMA forms contain health care directions that your agent(s) must follow if instructed to do so. By contrast, the pre-2000 CMA forms contain life support statements that are merely discretionary guidelines for the agent.
You may also want to check whether your current health care directive or estate planning papers include an information release under the Health Insurance Portability and Accountability Act (HIPAA) that allows your agent(s) to receive information from your doctors about your medical condition and mental capacity.
Do I Need a Lawyer to Help Prepare my Advance Health Care Directive?
The CMA’s forms are designed to be used without the assistance of a lawyer. A detailed explanation comes with the CMA Advance Health Care Directive Kit. A lawyer may be able to help you write a more detailed statement in your Directive, to make sure your wishes are stated clearly, to check to see that the form is correctly completed, signed and witnessed, or to explain about privacy laws.
The California Attorney General has a less detailed but usable version of an Advance Health Care Directive available for download from its website. I is derived from the template form that is provided in California Probate Code Sec. 4701. If you do use this version of an Advance Health Care Directive, it is a good idea to have it notarized even though a notarization form is not included; the notary’s own certificate can be attached to the document.