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Message #643 Healthcare directives

mp3 #643 Durable Power of Attorney for Health Care (mp3 file)


California laws enable you to legally designate another person to make health care decisions for you, if you become physically or mentally disabled to the point that you cannot make health care decisions for yourself. You may appoint another person to act as an agent on your behalf, by completing a document called a "Durable Power of Attorney for Health Care." this document allows the person you appoint to make sure that your expressed wishes are followed, either by consenting to medical care, treatment, services, or procedures, or by refusing to consent, or by authorizing the withdrawal of health care, so as to permit the natural process of dying.

This law is found in sections 4600 to 4806 of the California Probate Code. You may read the statute in your county law library, or your local public library can obtain a copy for you.

If you choose to appoint another person as your health care agent, you may do so without consulting an attorney, by purchasing a printed form for this purpose, and completing the form properly. Such forms are often available through your local stationery store, or your local hospital or medical society. If you cannot find a printed form to purchase, you may copy the statutory form for a Durable Power of Attorney for Health Care, which is found in section 4701 of the California Probate Code. If you use a printed form, the following warning will be printed on the form:

"This is an important legal document which is authorized by the Keene Health Care Agent Act. Before executing this document, you should know these important facts:

This document gives the person you designate as your agent (the attorney in fact) the power to make health care decisions for you. Your agent must act consistently with your desires as stated in this document or otherwise made known.

Except as you otherwise specify in this document, this document gives your agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.

Notwithstanding this document, you have the right to make medical and other health care decisions for yourself, so long as you can give informed consent with respect to the particular decision. In addition, no treatment may be given to you over your objection at the time, and health care necessary to keep you alive may not be stopped or withheld if you object at the time.

This document gives your agent authority to consent, to refuse to consent, or to withdraw consent, to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition this power is subject to any statement of your desires and any limitations that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your agent to make health care decisions for you if your agent (1) authorizes anything that is illegal, (2) acts contrary to your known desires, or (3) where your desires are not known, does anything that is clearly contrary to your best interests.

The powers given by this document will exist for an indefinite period of time, unless you limit their duration in this document.

You have the right to revoke the authority of your agent by notifying your agent or your treating doctor, hospital, or other health care provider orally or in writing of the revocation.

Your agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.

Unless you otherwise specify in this document, this document gives your agent the power after you die to (1) authorize an autopsy, (2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes, and (3) direct the disposition of your remains.

This document revokes any prior Durable Power of Attorney for Health Care.

You should carefully read and follow the witnessing procedure described at the end of this form. This document will not be valid unless you comply with the witnessing procedure.

If there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.

Your agent may need this document immediately in case of an emergency that requires a decision concerning your health care. Either keep this document where it is immediately available to your agent and alternate agents or give each of them an executed copy of this document. You may also want to give your doctor an executed copy of this document.

Do not use this form if you are a conservatee under the Lanterman Petris-Short Act and you want to appoint your conservator as your agent. You can do that only if the appointment document includes a certificate of your attorney."

You may prefer to consult an attorney, instead of using a printed form on your own, because an attorney can advise you to include special provisions in the document, that may not occur to you, and an attorney can explain to you all of the consequences of signing a Durable Power of Attorney for Health Care. For example, the California form may or may not be valid in another state, where you might stay for part of each year.

A Durable Power Of Attorney For Health Care does not authorize so-called "mercy killing," nor does it permit any deliberate act or omission to end life, but it may permit the withholding or the withdrawal of health care, so as to permit the natural process of dying. It also permits your health care agent to make health care decisions after your death, such as disposing of your body under the uniform anatomical gift act, authorizing an autopsy, and directing the disposition of your remains.

A Durable Power of Attorney for Health Care does not permit your agent to consent to your commitment or placement in a mental health treatment facility, nor to give consent for convulsive treatment, psychosurgery, sterilization, or abortion.

Who may you choose as your agent, to make health care decisions for you, if there comes a time when you are not physically or mentally able to make these health care decisions for yourself? It may be such persons as your husband or wife, or another relative, or a close friend, or your attorney. If you name your spouse and are later divorced, your divorce automatically revokes your designation of your former spouse. There are certain people who are not eligible, however; these include doctors, nurses, and other health care providers who are treating you, or the operator or employee of a hospital, nursing home, community care facility, or residential care facility for the elderly.

The document appointing your health care agent must either be notarized in California, or witnessed by at least two other adult persons. If you use witnesses instead of a notary public, there are various limitations on who may legally be witnesses; these limitations are listed in Probate Code section 4701. At least one of the two witnesses must not be related to you, and must not be a beneficiary of your estate when you die. If you are a patient in a skilled nursing facility when you sign the document, there is a special limitation that you must have one witness who is a patient advocate or ombudsman approved by the state department of aging for this purpose, to assure that you are acting voluntarily.

If you complete a Durable Power of Attorney for Health Care in 1992 or later, it is effective indefinitely, unless you revoke it, or unless you include a time limit in your document. However, if you had completed a Durable Power of Attorney for Health Care in 1991 or earlier, it expires seven years after you signed it, and you will need to complete a new document if you want it to be effective indefinitely. Also, if the person you designate to make your health care decisions is no longer available or appropriate for you, then you will again need to complete a new document.

You should name only one person as your health care agent. Any others you want to be involved should be named as alternate agents.

Your health care agent will not be responsible for your medical bills, unless that person would otherwise be responsible for your debts. The Durable Power of Attorney for Health Care deals only with medical decision making, and has no effect on financial responsibility for your health care.

A health care provider may legally rely upon the health care decisions of your health care agent, as long as the decisions are consistent with your desires, and are not illegal. However, a health care provider may also legally refuse to withdraw health care necessary to keep you alive, even if your agent has authorized the withdrawal of such health care. If that situation occurs, your agent would probably find another health care provider who was willing to carry out your wishes. Your agent has the authority to select and discharge physicians, dentists, nurses, therapists, and other health care professionals, as necessary to carry out the health care decisions that your agent is authorized to make.

One of the problems you face, in using the statutory form for a Durable Power of Attorney for Health Care, is that the statutory form does not suggest to you what language you should use, to express your wishes regarding the use or the non-use of life-sustaining procedures. Unless the wording of your instructions is medically precise, clear and legally sufficient, neither your agent nor your health care providers will know just what is expected of them to carry out your wishes. To remedy this problem, the California Medical Association has prepared its own form for a Durable Power of Attorney for Health Care, called the Advance Health Care Directive Kit. This kit contains suggested wordings for various choices regarding life-sustaining treatment. Because the language is medically precise and accurate, physicians and other health care providers will understand how to carry out your wishes.

Copies of the CMA's Advance Health Care Directive Kit may be obtained from your physician or hospital, from your local medical society, or from CMA directly via their website, cmanet.org, or by calling their toll free number 1-800-882-1262.

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