When we talked about the Advance Health Care Directive (AHD) in this blog post, we covered the basic facets of an AHD. Mostly, we discussed the need to pick a primary agent that will make medical decisions on your behalf, if you are unable. When discussing the AHD with my clients, there are some common questions, concerns, and misconceptions about the AHD that I would like to address in this blog post.
What will happen if my primary agent is unable or unwilling to make health decisions for me?
When I draft an AHD for a client, we always designate at least one backup agent to serve in the event that the primary agent is unable. Most people appoint their spouse as their primary agent, and their children as backup agents. Putting at least one backup agent on your AHD ensures that someone you know and trust will be available to make healthcare decisions on your behalf, when you are unable.
Can I pick more than one person to serve as my agent?
When learning about primary and backup agents, some clients will wonder if it is better to make all their agents serve as co-agents, meaning they will make your healthcare decisions together. While this sounds like it could be a lovely scenario, I usually advise against co-agents because it can complicate the decision-making process in the event that your agents do not agree on what care is best for you.
Generally speaking, a doctor will discuss all medical options with the people present at your bedside. If those people (usually your family) agree on what is best, the doctor will proceed. If they do not agree, the doctor will look at the AHD to see who is the agent responsible for making the decision. If there is one agent selected, that person will have final say.
For example, if you designate three people as co-agents, then they must all agree on the final course of action before the doctor can proceed. If they cannot come to a decision, they will have to go to court and have a judge decide for them. This defeats the purpose of having an AHD in the first place. Designating a primary agent and backup agents is much more effective than designating co-agents on your AHD.
What if I’m not married and do not have children or family members to select as my agent?
In my experience, I find many folks in this situation choose their significant other or best friend to serve as their agent. These are likely the people you are closest to, and the people who understand how you would make your own health care decisions if you were able.
Without putting your wishes in writing, those people you are closest to you, like your significant other or best friend, would be required to sit on the sidelines as your family comes in to run the show. This can be heartbreaking for them. In complicated situations like these, it is crucial that you appoint an agent by implementing a legally-sound AHD before a medical situation arises.
What if I have family, but I don’t trust them with this role?
For anyone who finds themselves without a reliable or willing spouse or child to designate as their agent, it is especially critical that you put your wishes in writing. Without documenting your wishes in an AHD, the law will always favor family over other significant people in your life. To the courts, it doesn’t matter if you don’t get along with your brother, if your estranged child is untrustworthy, or if you haven’t spoken to anyone in your family for decades. Unfortunately, they can only rely on your family tree to help them decide who will be your agent if you do not create an AHD for yourself.
For more advice about selecting the best agent for your AHD, I encourage you to visit this blog post.
I have specific health care wishes or restrictions I’d like to put in my AHD, what should I do?
One piece of crucial information in the AHD is a list of things your agent should and shouldn’t do when making medical decisions on your behalf. Some people are tempted to create an exhaustive list, but there are two reasons we do not recommend this: (a) this list only serves as a general guide for your agent and (b) we do not want the list to become outdated as the medical field advances.
The point of your AHD is to inform your medical care team who your agent is, so they can consult that person to find out which course of action to take regarding your healthcare decisions. Since your medical team will not be relying on the text of your AHD to determine your health care, you can understand why I believe the most important part of your AHD is who you put in charge.
The other reasons we avoid an exhaustive list is because we want to avoid creating a restrictive list that becomes outdated as you age and as medical technology changes. By providing only a general guide in your AHD, you give your agent the freedom to make the best decisions possible given the medical options available at the time you require care.
For these reasons, you can see how important it is to choose a good agent with whom you communicate regularly. Providing them general guidelines instead of a specific game plan ensures they can execute your healthcare wishes even in an environment of change. It is especially important that you have conversations with your agents about any specific health care wishes you would want them to respect if the need ever arose for them to serve as your agent.
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.
