Wednesday, May 7, 2014

Why you need a Living Will and Power of Attorney for Health Care

As an Orange County estate-planning attorney, I think its important to understand the importance of a Living Will and Power of Attorney for health-care. In California, this course of action is known as an “advance health care directive”, with implications, as follows.














If you pass away without legal documents regarding the type of medical treatment you want and the name of a person to oversee your care, any crucial decisions to be made can be directed by doctors, estranged family members, or in some instances, judges who may know next to nothing about your personal preferences.

These conditions would only apply if you become unable to control your own medical care due to an accident, illness, or old age. It demonstrates the critical need of having the correct legal documents in hand, which could be termed, your lifeline!

Your California health care documents

Within the Sate of California there are two types of basic health-care documents that should be a priority for everyone. The first document required gives the name of a trusted person, who is dedicated to directing the care of your health, should you be unable to do so yourself. It is a document generally referred to as a “durable power of attorney for health care”. If you need an expert opinion, I would be happy to help set up this document for you.

The second document should set out the different types of medical treatment you prefer, or would not like to receive in defined situations. It is a document generally referred to as a living will. These are the two documents are easily obtainable, but should still be created with great care.  They are combined into a single form known as an “advance health care directive.”

Who are the decision makers for me in California?

The person named to make decisions on your behalf in California is referred to as an agent. It is common to name a spouse, a partner, a relative, or a close friend as an agent. Under the law of California law, the agent acting on your behalf is NOT PERMITTED to be:

·      Your treatment giving health care-provider
·      An employee of this health-care provider, unless the employee is a domestic partner, or a relative by blood, marriage or adoption. Another exception to this rule is if you and this employee are both employed by your treatment giving health care provider
·      An employee or operator of a community care facility, except if the individual is your registered domestic partner or is otherwise related to you by blood, marriage or adoption. In addition, you and the employee work at the said community care facility together
·      The employee or an operator of any residential care facility for the elderly, except if the person is your registered domestic partner, related to you by blood, marriage or adoption. A further exception to the rule is that you both work at the particular residential care facility.

Your agent in California
Selecting your agent is crucial.  They must be trustworthy and dependable. You should also think about someone you believe will efficiently assert your health-care wishes, even if others argue against them.
Although your agent does not need to be someone who resides in California, they should be prepared to travel to your bedside if it is deemed necessary.  Your agent will start making health-care related decisions for you when you are no longer capable of doing so.

Planning your health-care in advance

You could be like so many people, who don’t want to spend time thinking about what the consequences if you become incapable of making health related decisions. However, as an attorney specializing in estate planning in Orange County, I know that it is essential and in your best interest to put in writing your wishes regarding the type of treatment you prefer or don't want to receive.  

As mentioned earlier, a Living Will is a great estate planning tool for health care management. It is a written statement detailing the type of care you want, or don't want to receive should you become incapacitated. This document bears no relation to a conventional will or living trust, which is used for assets; the Living Will is where you specify your preferences related to health-care.

Health Care Documents


I usually advise my clients to create a valid document regarding your health-care, after the legal age of 18. In addition to this age requirement, you must be of sound mind and capable of understanding the the documents presented to you, its contents and how it relates to your circumstances. Should this document take effect immediately, it does not give your appointed agent the authority to override your preferences regarding treatment you are receiving

As long as you have the capacity, you will have control of your own medical-care. Even when you are no longer capable of making your decisions on your own behalf, your nominated health-care agent is bound to act in your best interest and attempt to follow your wishes related to health-care, expressed in a health-care declaration or other document.

It is best to seek professional advice in order to make it possible for you to authorize your health-care agent for management of your medical care treatment immediately. If this is an option in your State of residence, you may prefer to have your health-care declaration take immediate effect, as well as requirements for the involvement of a doctor.

Contact Tompkins Law today for more information on this topic.



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