Every comprehensive estate plan needs to contemplate a strategy for what to do if the client becomes unable to handle his or her health care or personal care decisions. Anyone who may, at some future time, require another person to handle health care decisions needs to execute a Power of Attorney document as the primary tool for handling financial and personal decisions in the event of incapacity. The main purpose of the advance health care directive is to ensure that a trusted friend or family member is ready to act if needed, avoiding the potential conflict of a conservatorship hearing in the event of unexpected incapacity.
Advantages of Advanced Healthcare Directives
The advantages of an advanced health care directive are directly in contrast to its primary alternative, a conservatorship. While a conservatorship hearing is expensive, very public and potentially embarrassing, an advance health care directive is private and relatively inexpensive. The advance health care directive takes effect immediately upon the principal’s incapacity, so decisions can be made instantly, without the need for a hearing or judicial decree. The principal has the option of selecting the agent, and the decision is free of any judicial oversight. Finally, advance health care directives have a built-in advantage of forcing families to think about and discuss difficult topics, and develop a plan well in advance of when the need to make such decisions becomes immediate.
Disadvantages of Advanced Healthcare Directives
There are several disadvantages with the advance health care directive, but they primarily concern when the document can be drafted and who is appointed as agent. The principal must have capacity to execute the instrument, so a person who has already fallen ill and become incapacitated cannot create an advance health care directive. Because there is no judicial oversight, the agent selected may eventually abuse authority or become less diligent in the care of the principal. Finally, hospitals and physicians may be hesitant to accept a multiple-page advance health care directive for fear of violating disclosure laws (most notably HIPAA), making it difficult for the agent to remain informed and adequately meet the needs of the principal. An experienced estate planning attorney should be able to draft disclosure forms that will satisfy the requirements of HIPAA and its California analog, CMIA.
Along with an advance health care directive, a comprehensive estate plan should also address whether the principal would like to include a “Do Not Resuscitate” Order or, in contrast, a Physician Order for Life Sustaining Treatment, or terms regarding the decision of when and under what circumstances an anatomical gift might be made. These are all issues that are incredibly personal and individual in nature, and you should contact our office today to discuss your situation in greater detail.