Modern Estate Planning Blog

The COVID-19 pandemic has illustrated why it’s more important than ever to have a healthcare directive in place in the event you become sick, incapacitated, or lose the ability to speak for yourself. At some point in our lives, 85% of us will become incapacitated. It is an awful thing to think about, but an unfortunate truth. 

An Advance Healthcare Directive (AHCD) is an important legal document that will allow you to make choices for your future wellbeing, health care, and end-of-life care; as well as appoint a trusted person as your agent. Your chosen agent has the legal authority to make decisions for you and communicate with healthcare professionals if you are unable to. Without this very important legal document in place, no one, not even your spouse, has the legal authority to make decisions for you.

AHCD documents can also reduce family conflict and build a clear path to your decided healthcare. Unfortunately, families and spouses can argue over who has the right to make the health of a loved one after they’ve been incapacitated, and spouses can be left feeling as though the right decision wasn’t made. 

Without the AHCD, your family may need to go to court to get the legal authority to make decisions for you. As you can imagine, this is costly, time-consuming, and may not result in the person you would want making decisions for you.

What are the Different Types of Advance Healthcare Directives?

Choosing which type of AHCD depends on your needs and wants for your future healthcare. There are three types:

1. Statutory - This is your state’s version and is one-size-fits-all, which may not meet your needs.
2. Custom - This is created by your attorney to specifically meet your needs. 
3. Hospital - This form is provided by the hospital, and is a simple fill-in-the-blanks form; again, of the one size fits all variety.
   

What are the Misconceptions of Advance Healthcare Directives?

Here are three common misconceptions about Advance Healthcare Directives that need to be addressed to know the truth about this important document. 

1. An AHCD does not mean “Do not treat.” It is not the same as a Do Not Resuscitate (DNR) order, and it simply gives your trusted agent legal authority to step in and make decisions for you if you are incapacitated. 
2. An AHCD is not giving up your right to make your own healthcare decisions. Just because you appoint an agent, does not mean that they automatically have the final say when it comes to your health. As long as you have the ability to make decisions, you remain in charge.
3. An AHCD is not just for older people. As soon as a young person reaches the age of 18, their parents or legal guardian can no longer make healthcare decisions for them. If they’re in a healthcare situation where they can not consciously make decisions regarding their own health, their parents and loved ones might not be able to make the decision either. 
4. An AHCD is not “just a form” where you fill in the blanks. An AHCD is a legal document that should be carefully considered. Who you name as your agent is especially important to ensure your wishes will be carried out. You will need to consider the types of healthcare you want and don’t want and what quality of life means to you. These issues will change as you age or you develop chronic health conditions.
   

A thorough and thoughtful AHCD brings peace of mind, reduces hassles, avoids court involvement and preserves family harmony. There are a lot of questions that must be discussed to get to that result. 

How Do Living Wills and POLST’s Differ from an AHCD or DNR?

Living Will

This covers your end-of-life preferences. In California, you do not need a separate Living Will; end-of-life instructions are included in an AHCD. However, in other states, you need both to make sure you get everything sorted out for your future. We recommend reviewing this with your attorney to make sure everything is correct. 

POLST

A POLST or Physician Orders for Life-Sustaining Treatment is usually used for people who are near the end of their life. Think of it as an expanded DNR order. It is a doctor’s order, signed by both you and your doctor, and includes specific medical orders to be honored by health care workers during a medical crisis. It also provides direction if first responders are called to your home or care facility. Without the POLST, first responders are required by law to provide all appropriate treatment.

What Do You Do After Creating Your AHCD?

Let your loved ones know that you have created this very important legal tool. Next, have the conversation with your agents and family about your future healthcare needs and why it is important to you.

Make a copy of your AHCD and give it to each of your agents and your doctor. Keep the list short; if you revise your AHCD, you will want to retrieve any copies you have given out.

Finally, remember to update your AHCD as your situation and the laws change. 

Note: It is important that you make note of who you gave a copy to. If you need to make changes to the document in the future, it's essential to know who has a copy of the original. This is so you can destroy the old copies and replace them with new, updated versions. 

Create a Modern Estate Plan

Most people will need something more to ensure that your future healthcare and the wellbeing of your loved ones are in order. The AHCD is just one important piece of your modern estate plan. 

A modern estate plan will protect your surviving spouse, your adult or minor children, and help control, protect, and pass on your financial assets without the need to go to court. 

What Are Your First Steps?

1. Take action: Identify and put in place all the legal tools necessary for your situation.
2. Choose the right people: Choose the right people to help you organize your documents.
3. Update: Keep your plan updated and review it periodically.
4. Advocates: Turn your loyal helpers into your advocates and share your plan with them. 
5. Talk about things: Have any difficult conversations now, so you can enjoy the rest of your life. 
6. Get the right help: If you are looking to put the right things in the right place and need some extra help, contact an attorney today.
   
   

If you need help setting up your Advance Healthcare Directive or creating your Modern Estate Plan, call The Chubb Law Firm today at (916) 241-9661 to schedule a Discovery Meeting.