by Kraig Strom, Certified Financial Planner Practitioner and Chartered Financial Consultant
Like a financial power of attorney, an advance medical directive (or power of attorney for health care) is a foundational part of a comprehensive estate plan. This directive is your way of ensuring that your wishes regarding medical and end-of-life care are followed should the situation arise when you’re not able to make those decisions yourself. By legally appointing a proxy, known as an agent, you give that power to someone who can act on your behalf when, for example, you might be unconscious for a medical procedure or after an accident and need a representative who can speak to doctors and make necessary decisions according to your preferences.
While it is theoretically possible to name anybody to serve as your agent in your advance medical directive, the person you select should be chosen with care. A serious matter to consider is whether asking that individual to make medical decisions for you will put them in too difficult a position to handle that responsibility effectively. The scenarios in which someone would be asked to exercise the authority granted to them by your power of attorney for health care are likely to be very stressful, such as in a hospital environment. They can also involve decisions such as when to change or withhold care and what life support treatments should or should not be used.
Therefore, you may find that your closest relatives might not be the best choice to serve as your agent. It can make better sense to designate an older family member such as a sister or brother, or even a best friend, rather than a young son or daughter who could be overwhelmed at the prospect of making such weighty decisions for their parent. Your guide should be who will be best prepared to handle the tough situation of needing to speak to medical professionals when you can’t do it for yourself. No matter who you choose, you should discuss the wishes and instructions you set out in the document with them before there’s a chance they would ever need to act in that capacity.
In California, an advance medical directive must either be notarized or signed by two witnesses to be legally binding. If you have chosen to have it witnessed, at least one of your witnesses cannot be related to you by blood, marriage, or adoption, and cannot be entitled to any part of your estate under your will or by operation of law. In addition, neither witness can be your health care agent, your health care provider, an employee of your health care provider, an operator or employee of a community care facility, or an operator or owner of a residential care facility for the elderly. It’s best to have your directive prepared by a law firm with expertise in estate planning, to ensure that it is both complete and witnessed correctly in order to be legally binding if you need it.
Once it has been properly finalized, you should keep the original on file and give a copy to your agent. If your advance medical directive is needed, the hospital, clinic, nursing home, or other medical facility will ask for the document to confirm that the person you’ve chosen to act for you does in fact have the legal authority to do so. They will keep it on file for their records to show that they’re acting in accordance with your legal wishes. It’s important to note that in California marriage does not automatically give a healthy spouse the right to make health care decisions for an incapacitated one—no matter what your situation is or how obvious you think the choice of a capable agent is, you should still have an advance medical directive prepared.
The seasoned professionals at BarthCalderon know that a comprehensive estate plan can save you and your loved ones anxiety and stress at some of life’s most difficult moments. We work with our clients to ensure that they understand the legal tools at their disposal and that their individualized estate plan anticipates their needs. To find out more about advance medical directives and our estate planning services, contact us here.