In earlier blog posts you have learned about the Durable Power of Attorney, the primary document dictating who has legal power over your finances when you are incapacitated. Now I will introduce the Advance Health Care Directive (AHD), the document that designates who will make your healthcare decisions when you cannot. Usually when we talk about a loss of capacity, people assume that I am referencing gradual declines in capacity, such as with Dementia or Alzheimer’s, or even urgent end-of-life decisions (or “pulling the plug,” as people often call it) resulting from cardiac arrest, brain trauma, cancer, or other debilitating health crises. But remember, incapacity can happen to anyone, at any time – things like car crashes and work accidents do not discriminate based on age – so it is critical to have this document in place before a health crisis arises.
While you are healthy, consider asking yourself who you would want to make these important decisions for you, should the need arise. People often assume it is obvious who should make these decisions for them – usually, their spouse or their children. This may be true, but if it is not specified in writing, things can get messy. What if you and your spouse are both incapacitated in a car accident at the same time? What if your children disagree with what the best course of action is? What if your family lives far away? Generally speaking, you don’t want your healthcare decisions to be run by a committee of family members, and you don’t want the government deciding who should be making these decisions for you. The best way to ensure that the person you trust most will be able to make healthcare decisions on your behalf, without any barriers, is to implement an AHD.
You may be wondering who will be the best person for you to pick. For most of my clients, their spouse is the obvious choice. In some rare instances, that may not be true. Here are a few things to consider before deciding who your healthcare agent will be: How well do you know this person? Can you trust them to make decisions that align with your beliefs and desires? How available will this person be to make medical decisions on your behalf? Does this person tend to make rational, rather than emotional, decisions when faced with a tough decision, emergency, or crisis? If your incapacity lasts several years, will this person have the stamina to see you through years of medical treatment and care? Will this person have your best interests in mind? How well does this person get along with your loved ones? Should this person be faced with end-of-life decisions for you, would they be able to make crucial decisions on your behalf?
When creating an AHD, you should take an honest look at who will be the best person to make these critical decisions. Like I said, clients usually pick their spouse to fill this role. If, for any reason, you think your spouse may not be the best choice, there are other people you can consider. Sometimes, later in life, people have been widowed and find themselves in a second marriage with someone they have only known a short time. Many times in that situation, people will instead choose another family member who has known them for many years as the primary agent. Maybe instead you would choose a capable, adult child? What about a more distant relative, like a cousin, niece, nephew, or grandchild? You don’t even have to be related; you could pick a close friend. Part of my job is to gently help my clients face reality and plan accordingly. When you meet with me to discuss your estate plan, you will feel a sense of relief knowing that you have selected the best person to make these decisions for you, if the need arises. Matthew Hart is a California Licensed Attorney who is an Estate Planning, Trust & Probate Law Specialist certified by the State Bar of California. His office is in Antioch and he can be reached at 925-754-2000 or www.MatthewHartLaw.com.
This article is a compilation of excerpts from articles by Matthew Hart that were originally published in the Antioch Herald newspaper.
