Residents can control own care with an Advance Health Care Directive

By Ken Kaye, Special to the Town Crier

Karen Ann Quinlan, Nancy Cruzan, Terri Ann Schiavo are three women whose names are well known, not because of their lives, but because of their deaths. Each became the basis for a public and painful legal struggle.

While their deaths may have been unavoidable, the trauma of their deaths could have been avoided had they signed a document stating their wishes regarding life support and appointing someone to make health-care decisions for them if they became unable to do so themselves.

Section 4701 of the California Civil Code provides that every adult may sign what is now known as an Advance Health Care Directive. You may state your wishes regarding your health care and you may designate someone to make these decisions for you. Forms are available over the Internet from many sources. Printed forms may be ordered from the California Medical Association. Many health-care providers, such as the Palo Alto Medical Foundation, have them available. Most estate-planning attorneys make them available to their clients while preparing their wills, trusts or other documents. The forms vary a great deal in the number of subjects they cover and the options they offer, so it’s a good idea to compare several.

You will make several important decisions as you complete the form. The person you designate to make health-care decisions for you is called your agent. Married persons usually name their spouse first. But it is a good idea to name an alternate agent, in case your first choice is not available. Perhaps he or she was injured in the same accident as you. If you have children, should you name all of them as co-agents? The risk in designating several persons is that all of them must agree on each decision. In effect, you’re giving each person the right to veto the decision of the others. Perhaps some of the children will be less well-suited or less willing to make difficult decisions.

Many people check the box making the directive effective only when they are legally incapable of making their own decisions as certified by two physicians. While this may seem like a good idea, it has a potential disadvantage. If you’re taken to an emergency room, the doctors can’t properly take directions from your agent until two doctors have first certified that you’re unable to make your own decisions. Precious time may be lost. If you check the box making it effective when signed, then your agent is authorized to give instructions any time you can’t communicate your instructions on your own.

For many people, the most important section of the advance directive form concerns end-of-life decisions. Most of the forms available offer three choices.

One instructs health-care providers to prolong life as long as possible within generally accepted medical standards.

A second instructs them to prolong life as long as possible, unless and until you are in a coma or persistent vegetative state that the doctor believes is irreversible, at which point life support may be discontinued.

The third option states that you do not want life support in specified situations, such as the following: You have an irreversible and incurable illness or condition that will lead to death within a relatively short time - six months or less; you are unconscious, and the doctor (or more than one if the directive requires) believes with a reasonable degree of medical certainty that you will not regain consciousness; or the agent believes that the risks and burdens of the treatment outweigh the expected benefits.

You are not limited to these choices; you may edit them in any way you like, or even completely rewrite them. Some people include comprehensive decision-making grids with their directives, stating which procedures they want to permit or prohibit in particular circumstances.

Few of my clients have chosen the instruction to prolong life in all circumstances. About 20 percent have chosen the instruction to permit the termination of life support if they are in an irreversible coma. The remainder have chosen the instruction not to prolong life; but of those, about 25 percent delete the clause that instructs the agent to weigh the benefits and burdens of the treatments.

Remember: Simply telling someone your wishes is not enough. To be effective, your wishes must be in writing.

Signing an Advance Health Care Directive accomplishes three important objectives:

1. It forces you to think about and make decisions about this difficult topic. Who do you want to make these decisions if you are unable to do so? Should you include your parents, one child or all your children, and what about children of a prior marriage?

2. It communicates these decisions to others. No one has to ask what your intentions were. No one can argue about what your wishes were.

3. It designates someone to implement your wishes in a legally binding way if you become unable to do so.

Your directive must be signed by two witnesses or be notarized. No one who is named as an agent may also serve as a witness. At least one of the witnesses must also sign a statement that he or she is not related to you by blood, marriage or adoption, and is not entitled to inherit from your estate.

Some people have signed what is known as a living will. It may include a statement of their wishes regarding life support, but it fails to appoint an agent to implement their wishes. So a living will does only half the job.

Once you’ve signed a directive, it’s very important that you give copies to all the persons named as agent and especially to all your health-care providers. Send it to the doctor, medical group or clinic that provides your care. If you have a surgical procedure, whether in a hospital or at an outpatient center, take copies with you. Consider putting a copy in the glove box of your car, your briefcase, computer case or the day-planner you carry.

Be sure to tell those who care about you and are involved in your life what choices you made, especially if you are concerned that they may not be comfortable with those choices. They are more likely to accept those choices if they hear them from you in a moment of calm than if they hear them from someone else at a critical and stressful time.

In addition to the Health Care Directive, be sure to sign a separate document authorizing the release of your confidential medical information to your agent. Without this form, the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, prohibits your health-care providers from giving your agent or others the information they need about your condition to make the appropriate decisions to follow your instructions. While some Health Care Directives now include this authorization with language required by federal law, most do not, and you need to sign a separate form.

Whether we are 18 or 80, each of us has the power to assure ourselves and our loved ones that we will not become the next Karen Ann Quinlan, Nancy Cruzan or Terri Ann Schiavo.

Ken Kaye has practiced law in Los Altos since 1979. The majority of his practice is devoted to estate planning, including wills, living trusts, health-care directives and powers of attorney. In addition to counseling many clients on health care directives, he has served as the agent for a terminally ill person.