For many years, the standard end-of-life document for medical health care was called the “living will.” A living will typically includes your preferences for medical treatment and end-of-life care should you become incapacitated and unable to communicate your wishes. For example, what are your preferences with respect to life support, ventilators, feeding, tubes, etc. should you be in a coma or be diagnosed with a terminal illness?
This type of living will has evolved, however, and no longer focuses narrowly on just end-of-life care. In California, the broader document is now referred to as an Advance Health Care Directive. This evolution represents more than just a change in terminology, but an overall change in the approach towards health care and end-of-life choices.
California Health Care Decisions Law
This change in focus from the narrower living will to a broader health care directive is encapsulated under the California Health Care Decisions Law, now found in Probate Code §§4600–4806.
Below we take a look at some of the elements of this law.
The Advance health care directive or advance directive
No longer just limited to individual health care or end-of-life instructions, the advance directive can now also serve as a power of attorney for health care.
Presumption of patient capacity
The default presumption is that a patient has the capacity to make their own health care decisions, including the decision to revoke their existing advance health care directive.
The Power of Attorney (POA) for Healthcare
This is one of the elements that distinguishes the advance directive from a living will. In the advance directive, a person can designate their representative or agent by executing a power of attorney for health care. No longer limited to end-of-life decisions, the power of attorney for health care is intended to assist a person with their regular health care decisions including meals, determining where the person will live, transportation, recreation and entertainment.
The Health Care Surrogate
While the POA for Healthcare empowers a person to make decisions for a person on a regular, daily basis, the health care surrogate is a more limited fiduciary. The surrogate is empowered by a person to make health care decisions for only the course of a specific treatment or illness, or for 60 days, whichever is shorter.
The Advance Health Care Directive Form
Section 4701 of the Health Care Decisions Law provides a template or sample for an Advance Health Care Directive.
Given that the details of an Advance Health Care Directive are often the result of personal choices or preferences, a review of this form may be helpful for any person considering preparing their own directive. This is not the type of form that can be filled out in one sitting, unless you are very clear about what you do and do not want for your own health care and medical choices, and unless you are also very clear about the persons you trust to carry out your instructions.
If you have looked over the Advance Health Care Directive Form and would like to discuss the significance of certain sections or the implications of making one choice over another, we highly recommend sitting down with an experienced estate planning lawyer.
Very clear exclusions
This is very important – just because you are empowered by the law to make your own health care and end-of-life decisions, does not mean you can do whatever you want. The law provides specific exclusions – what any advance health care directive will not condone or include, for instance:
- Commitment to a mental health treatment facility
- Convulsive treatment
- Psychosurgery
- Sterilization
- Abortion
- Mercy killing, assisted suicide or euthanasia
Update Your Living Will
The California Health Care Decisions Law became effective in July 2000. If you prepared your estate plan before this time, then you most likely had a living will. If you haven’t updated your living will yet, it is high time that you do.
It is not precisely a question of whether you should have a living will or an advance directive. Both serve a purpose, and a living will, if executed properly, would still be considered valid unless revoked or unless it is no longer legally supported. But for a broader health care and end-of-life plan, the law offers the framework and the guidance on designing your own advance directive suitable for your needs.
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Preparing your own advance directive, or updating what you currently have, should be a priority for every adult. Reach out to us to schedule a consultation so we can help ensure that your health care wishes, decision-making authority, and end-of-life instructions are clearly documented and aligned with current California law. Careful planning today can help reduce uncertainty, avoid family conflict, and provide clarity during medical emergencies when it matters most.