ESTATE PLANNING – NOT JUST WILLS AND TRUSTS : PART III

B. Directions for Medical Care

Estate planning also entails preparing for medical care when and if you lose the ability to communicate your wishes. Many people are familiar with the Terri Schiavo case in the late 90’s, which was a legal battle over end-of-life care for Ms. Schiavo. Ms. Schiavo was diagnosed as being in an irreversible persistent vegetative state after suffering cardiac arrest, which resulted in severe brain damage. Her husband, who was also her legal guardian, believed that Ms. Schiavo would not have wanted prolonged artificial life support without the prospect of recovery; her parents disagreed. A very public seven year legal battle ensued, during which both her husband and family were subject to public judgment, scorn and shame, and pictures of a vegetative Ms. Schiavo became common place in the media. Ultimately, her husband won, and Ms. Schiavo’s feeding tubes were removed.

Most people wish to avoid – for themselves, and for their family – a situation similar to Ms. Schiavo’s. Most states have now enacted legislation allowing individuals to set forth instructions for situations where they are unable to express their wishes for certain procedures or treatment. The documents used for this include a health care power of attorney (also called a medical power of attorney), directive to physicians (also called a living will or advance directive), as well as a Do Not Resuscitate (“DNR”) order.

California probate code section 4701 sets forth an Advance Health Care Directive for California citizens. It includes four material parts: power of attorney for health care, a section listing specific instructions about any aspect of your health care, a section outlining your intentions with regard to donation of your bodily organs and tissues, and a section designating which physician you would like to have primary responsibility for your health care.

A health care power of attorney allows you to choose one or more individuals, also called “agents,” whom you trust to make medical decisions for you, in the event your exact wishes are not known and you are not able to communicate them. You can give the agent blanket authority to make decisions for you (subject to your written instructions, discussed below), or you can limit their decision making authority to specific scenarios. In order to be valid, it must be signed by you or at your direction, dated, and is either signed by two witnesses, or notarized.

The second section of the California Directive allows you to provide instructions regarding: life prolongment where the burdens outweigh the benefits; provision of pain relief, even if it would hasten death, and; any other wishes. Some individuals, in addition to the California form, also execute a more comprehensive Directive to Physicians, or Living Will, which more thoroughly details an individual’s wishes with regard to end-of-life care and pain management.

A DNR order can also help carry out your wishes. DNR’s alert emergency and medical personnel that you do not wish to receive cardiopulmonary resuscitation (CPR) in the event of a health emergency. DNR’s are medical orders which must be signed by a doctor, and can be obtained by you, by your agent, or pursuant to an advance directive.