A Living Will and Other Health Care Forms 

In the event that you are incapacitated and can’t express your medical care preferences, you need the right legal document to direct your medical care. An advance health care directive (“AHCD”) consists of a living will, which guides health care providers in their medical decisions if a vegetative state or other medical complication leaves you unable to communicate

At Klosek Law Offices in Sacramento, CA, we work closely with our clients to meet their estate planning needs and goals. Probate law is different from other practice areas of law, such as family or business law.

An advance health care directive gives you peace of mind that doctors will adhere to your wishes regarding life-sustaining medical treatments or life support in certain circumstances. This health care document also names your health care agent to oversee your medical care and make decisions on your behalf.

An end-of-life situation can happen at any time, and setting up legal documents containing your medical treatment preferences is essential, even if you are still relatively young. 

Living Wills 

A living will is one component of an advance health directive and a document outlining your wishes regarding your medical care if you cannot provide informed consent. Living wills typically focus on situations where the signer is terminally ill and explain whether doctors should administer life-prolonging treatments.

A living will is an informal document you can draw up yourself without the help of an attorney or law firm. You and two other witnesses must sign your living will, and at least one of the witnesses must not be related to you.

When you create a living will, you can include details regarding do-not-intubate (DNI) and do-not-resuscitate (DNR) orders in your medical record. You can also include your religious preferences and your wishes regarding assisted breathing, tube feeding, or pain management. End-of-life care decisions to stipulate in your living will include:

  • Mechanical ventilation if you can’t breathe on your own
  • Dialysis for the removal of waste from the blood in the event of kidney failure
  • The treatment of infections using antibiotics or antiviral medication
  • Tube feeding to supply your body with fluids or nutrients
  • Cardiopulmonary resuscitation (CPR) to restart your heart if it stops beating
  • The donation of organs and body tissue
  • The donation of your body to a facility for scientific research  

Health Care Power of Attorney 

Along with a living will, your advance health care directive should include an appointment of a trusted person to make decisions on your behalf if you are incapacitated. Ideally, the person you appoint as your representative should be dependable, trustworthy, and able to assert your wishes if there is a disagreement between your family members.

 Your health care agent should also uphold the terms in your living will, and their decisions or desires should not conflict with its terms. In most cases, people choose their spouse, domestic partner, close relative, or friend as their health care agent.

 According to California state law, your health representative may not be: 

 

  • Your supervising health care provider
  • An employee of the facility where you receive health care unless the person is a relative, registered domestic partner, or co-worker
  • An employee or operator of a community care institution, unless the person is a relative, registered domestic partner, or co-worker
  • An employee or operator of a residential care institution for the elderly, unless the person is a relative, registered domestic partner, or co-worker

 

The individual you name as your health care agent need not reside in California. However, it is critical to name someone who is willing and able to travel to your location when necessary.

Your health care agent can only act on your behalf if you don’t have the physical or mental ability to do so yourself. A qualified healthcare provider will determine whether you can make decisions and communicate them. 

Creating Your Advance Health Care Directives 

Your advance health care directives, including your living will and health care power of attorney, must be in writing. After drawing up your living will, review its terms with your primary care physician and health care agent.

 Keep the original documents in a safe place and give copies to your doctor and health care agent. If you travel, take a copy of your advance health care directive with you.

 You can revoke or amend your advance health care directive at any time. When you change your living will, you will need to inform your health care provider and agent in writing. 

 

When Your Living Will or Advance Health Care Directive Takes Effect

Typically, a Living Will or Advance Health Care Directive (AHCD) take effect if two independent doctors determine that you lack the ability or capacity to make your own health care decisions. Lacking capacity occurs when the following factors are present:

  • You are unable to understand the consequences and nature of the health care options that are are available to you; 
  • You are not able to communicate your health care wishes either in writing, orally, or through gestures 

 

If you are in such a physical or mental state where you are unable to communicate your health care wishes in any way, your documents come into effect (they “spring” into existence) However, if there is any uncertainty about your ability to to understand what treatments are available and inform your doctor what treatment you desire, your doctor (with input from family members and your health care agent) will make the determination whether you lack capacity and your health care care agent can start making decisions for you 

 Under California law, you can specify in your health care directive, whether your health care agent can make decisions effective immediately, which avoids the necessity of having a doctor determine whether someone is incapacitated or not. Thus, if you want to avoid having doctors make any determine, you can select to have the health care directive take effect immediately, and give your health care agent the ability to make decisions for you as soon as the document is signed and notarized 

 Keep in mind that even if you make your health care directive effective immediately, your health care agent can’t override what health care treatments you desire, as you will always be able to communicate your desired care and treatment if you have the capacity and ability to do so. In addition, even if you reach the point where you are incapable of making decisions on your own, your health care agent has a duty to act in your best interests, and must faithfully care out your health care instructions (i.e. pull the plug if you have stated that you don’t want your life prolonged if you are terminally ill, or dispose of your remains via cremation if those are the instructions you provided). 

California Living Will Experts 

At Klosek Law Offices, we can help you draw up a legally valid living will. For legal assistance with your advance health care directive and matters relating to estate planning, probate, and trust administration, schedule an initial consultation at one of our offices in California.

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