Estate planning is like frequent hand-washing: something that was always important but something especially relevant now during the COVID-19 pandemic. This pandemic has rendered many generally healthy people ill and taken away the capacity of some to guide their own health care decisions. It has highlighted so many things, not the least of which is the importance of valid estate planning documents - created not from a form downloaded off of the Internet, but with the thoughtful advice and counsel of an attorney.
Estate planning is an uncomfortable topic for many of us but there are several estate planning documents that all of us should consider in order to ensure our express desires are followed and that we have appointed someone to make medical decisions for us if we are unable to do so for ourselves. One such document is the advance health care directive.
What is an Advance Health Care Directive?
In California, as part of the fundamental right to control decisions relating to one’s health care,[1] citizens have the right to instruct others as to their own health care, and also to name someone else to make health care decisions for them. An advance health care directive sets forth an individual’s express wishes with regard to health care and can include the following: (1) the designation of a person authorized to make health care decisions for the person if he or she is unable to do so; (2) specific instructions about health care; (3) preferences regarding organ/tissue/body part donation; (4) preferences regarding the disposition of one’s remains after death; and (5) designation of a physician responsible for health care.[2]
Everyone should think about having an advance health care directive. COVID-19 has reminded us that unexpected illness and incapacity can happen to anyone, at any time. The advance health care directive allows for individuals to plan for what will happen in the event they lack the capacity to make health care decisions for themselves.
Who makes health care decisions for me if I lack the capacity to do so?
It is extremely important now to think about creating an advance health care directive because people who are generally healthy are getting sick from COVID-19, becoming incapacitated, and even dying. Another reason to think about creating this estate planning tool now is that most hospitals are not allowing additional people to wait in the hospital (or sometimes even visit) with their loved ones, whether it be for the birth of a child or an emergency unrelated to COVID-19.
Hospitals will generally look to next of kin when seeking the authority to act on behalf of a patient unable to make his or her own choices. If you lack the capacity to make a health care decision on your own and you do not have an advance health care directive, your spouse or domestic partner may be asked to make a health care decision on your behalf.[3] This is so even if you are contemplating or in the middle of a divorce.
An advance health care directive creates an individualized health care plan for emergency situations and can help avoid the uncertainty of what will happen if you were to become incapacitated. Contact the attorneys at Cage & Miles, LLP to discuss essential estate planning tools, including an advance health care directive, and start planning for your future today.
[1] See California Probate Code §4650(a).
[2] See California Probate Code §4701.
[3] The spousal surrogacy power is recognized under the California Probate Code, but is not statutorily designated. See California Probate Code §4716(a).
