Health Care Directive
A power of attorney for health care
A Health Care Directive is a written document designating an agent (the person you select) to make health care decisions for the principal, (that’s you, the person writing their wishes) whereas an individual health care instruction is a patient’s written or oral directions for his decision on health care. Health Directive P.J Hoskins, Esq. Site Statutory Form
The Five Wishes document helps you express how you want to be treated if you are seriously ill and unable to speak for yourself. It is unique among all other living will and health agent forms because it looks to all of a person’s needs: medical, personal, emotional and spiritual. Five Wishes also encourages discussing your wishes with your family and physician.
Five Wishes lets your family and doctors know:
Which person you want to make health care decisions for you when you can’t make them.
The kind of medical treatment you want or don’t want.
How comfortable you want to be.
How you want people to treat you.
What you want your loved ones to know.
Health Care Instructions
There are two primary choices of health care instructions used by most people. You can select one of them for inclusion in your health care directive:
(a) Choice Not To Prolong Life
I do not want my life to be prolonged if
(1) I have an incurable and irreversible condition that will result in my death within a relatively short time,
(2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or
(3) the likely risks and burdens of treatment would outweigh the expected benefits, OR
(b) Choice To Prolong Life
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards. this is basically the I want to keep the artificial means going? provision
Other Types of Instructions
Another commonly used instruction is:
RELIEF FROM PAIN: I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death.
Other instructions may be added to reflect your specific wishes. P.J Hoskins, Esq. Statutory Form
This is planning for care you would want to get if you become unable to speak for yourself. You can talk about an advance directive with your health care professional, and he or she can help you fill out the forms, if you want to. An advance directive is an important legal document that records your wishes about medical treatment at a future time, if you’re not able to make decisions about your care. You pay nothing if it’s provided as part of the yearly “Wellness” visit and the doctor or other qualified health care provider accepts assignment.
Note: Medicare may also cover this service as part of your medical treatment. When advance care planning isn’t part of your yearly “Wellness” visit, the Part B deductible and coinsurance apply.
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Background from Uniform Act for Statutory Form.
The optional form set forth in this section incorporates the Section 2 [Prob. Code § 4670 et seq.] requirements applicable to advance health-care directives…. An individual may complete all or any [of the first four] parts of the form. Any part of the form left blank is not to be given effect. For example, an individual may complete the instructions for health care part of the form alone. Or an individual may complete the power of attorney for health care part of the form alone. Or an individual may complete both the instructions and power of attorney for health care parts of the form. An individual may also, but need not, complete the parts of the form pertaining to donation of bodily organs and tissue and the designation of a primary physician.
Part 1, the power of attorney for health care, appears first on the form in order to ensure to the extent possible that it will come to the attention of a casual reader. This reflects the reality that the appointment of an agent is a more comprehensive approach to the making of health-care decisions than is the giving of an individual instruction, which cannot possibly anticipate all future circumstances which might arise.
Part [1.1] of the power of attorney for health care form requires only the designation of a single agent, but with opportunity given to designate a single first alternate and a single second alternate, if the individual chooses. No provision is made in the form for the designation of co-agents in order not to encourage the practice. Designation of co-agents is discouraged because of the difficulties likely to be encountered if the co-agents are not all readily available or do not agree. If co-agents are appointed, the instrument should specify that either is authorized to act if the other is not reasonably available. It should also specify a method for resolving disagreements.
Part [1.2] of the power of attorney for health care form grants the agent authority to make all health-care decisions for the individual subject to any limitations which the individual may state in the form. Reference is made to artificial nutrition and hydration and other forms of treatment to keep an individual alive in order to ensure that the individual is aware that those are forms of health care that the agent would have the authority to withdraw or withhold absent specific limitation.
Part [1.3] of the power of attorney for health care form provides that the agent’s authority becomes effective upon a determination that the individual lacks capacity, but as authorized by Section 2(c) [Prob. Code § 4682] a box is provided for the individual to indicate that the authority of the agent takes effect immediately.
Part [1.4] of the power of attorney for health care form directs the agent to make health-care decisions in accordance with the power of attorney, any instructions given by the individual in Part 2 of the form, and the individual’s other wishes to the extent known to the agent. To the extent the individual’s wishes in the matter are not known, the agent is to make health-care decisions based on what the agent determines to be in the individual’s best interest. In determining the individual’s best interest, the agent is to consider the individual’s personal values to the extent known to the agent. Section 2(e) [Prob. Code § 4684] imposes this standard, whether or not it is included in the form, but its inclusion in the form will bring it to the attention of the individual granting the power, to the agent, to any [conservator] or surrogate, and to the individual’s health-care providers.
[Part 1.5 implements Probate Code Section 4683.]
Part [1.6] of the power of attorney for health care form nominates the agent, if available, able, and willing to act, otherwise the alternate agents in order of priority stated, as [conservators] of the person for the individual. This provision is included in the form for two reasons. First, if an appointment of a [conservator] becomes necessary the agent is the one whom the individual would most likely want to serve in that role. Second, the nomination of the agent as [conservator] will reduce the possibility that someone other than the agent will be appointed as [conservator] who could use the position to thwart the agent’s authority.
Because the variety of treatment decisions to which health-care instructions may relate is virtually unlimited, Part 2 of the form does not attempt to be comprehensive, but is directed at the types of treatment for which an individual is most likely to have special wishes. Part [2.1] of the form, entitled “End-of-Life Decisions,” provides two alternative choices for the expression of wishes concerning the provision, withholding, or withdrawal of treatment. Under the first choice, the individual’s life is not to be prolonged if the individual has an incurable and irreversible condition that will result in death within a relatively short time, if the individual becomes unconscious and, to a reasonable degree of medical certainty, will not regain consciousness, or if the likely risks and burdens of treatment would outweigh the expected benefits. Under the second choice, the individual’s life is to be prolonged within the limits of generally accepted health-care standards…. Part [2.2] of the form provides space for an individual to specify any circumstance when the individual would prefer not to receive pain relief. Because the choices provided in Parts [2.1-2.2] do not cover all possible situations, Part [2.3] of the form provides space for the individual to write out his or her own instructions or to supplement the instructions given in the previous subparts of the form. Should the space be insufficient, the individual is free to add additional pages.
The health-care instructions given in Part 2 of the form are binding on the agent, any [conservator], any surrogate, and, subject to exceptions specified in Section 7(e)-(f) [Prob. Code §§ 4734-4735], on the individual’s health-care providers. Pursuant to Section 7(d) [Prob. Code § 4733], a health-care provider must also comply with a reasonable interpretation of those instructions made by an authorized agent, [conservator], or surrogate.
Part 3 of the form provides the individual an opportunity to express an intention to donate bodily organs and tissues at death. The options provided are derived from a suggested form in the Comment to Section 2 of the Uniform Anatomical Gift Act (1987). [See Health and Safety Code § 7150 et seq.]
Part 4 of the form provides space for the individual to designate a primary physician should the individual choose to do so. Space is also provided for the designation of an alternate primary physician should the first designated physician not be available, able, or willing to act.
[Part 5.1] of the form conforms with the provisions of Section 12 [Prob. Code § 4660] by providing that a copy of the form has the same effect as the original….
The form does not require formal acceptance by an agent. Formal acceptance by an agent has been omitted not because it is an undesirable practice but because it would add another stage to executing an advance health-care directive, thereby further reducing the number of individuals who will follow through and create directives. However, practitioners who wish to adapt this form for use by their clients are strongly encouraged to add a formal acceptance. Designated agents have no duty to act until they accept the office either expressly or through their conduct. Consequently, requiring formal acceptance reduces the risk that a designated agent will decline to act when the need arises. Formal acceptance also makes it more likely that the agent will become familiar with the principal’s personal values and views on health care. While the form does not require formal acceptance, the explanation to the form does encourage principals to talk to the person they have named as agent to make certain that the designated agent understands their wishes and is willing to take the responsibility.
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