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Advanced Directive

Making An Advance Directive

What happens if people become too sick to make their own medical decisions? Someone must decide when to start treatment, when not to start it, or when to stop it. Family members and doctors usually make decisions when the patient can't. Sometimes they are not sure what is best. Sometimes they disagree. That's when it would be good to know what the patient would have wanted and whom the patient would have wanted to make these decisions. That's why it will help your family, close friends, and physicians, if you have filled out an advance directive. And having one empowers you---if you've made your wishes clear, they're more likely to be followed.

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What's An Advance Directive?

An advance directive is a paper you fill out. You write in advance what you want done in case you have a serious injury or illness and aren't able to speak for yourself then. You can use an advance directive in two ways. First, you can name a relative or friend you trust as your "agent" to make medical decisions for you if you can't make them yourself. In California, this type of directive is called a DURABLE POWER OF ATTORNEY FOR HEALTH CARE. Second, you can write down when you would or wouldn't want to be treated if you became very sick. And you can describe what kinds of treatment you would and wouldn't want. People feel differently about how much treatment they want under different conditions. By filling out what is often called a "living will," you can let your family, friends, and physicians know how you feel. The type of living will that is recognized by statute in California for patients who are terminally ill or permanently unconscious is called a NATURAL DEATH ACT DECLARATION. You can also write your wishes about treatment in a non-statutory LIVING WILL or in a DURABLE POWER OF ATTORNEY FOR HEALTH CARE, with or without or without naming an agent.

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Which One Should I Use?

Do you have someone you can name as your agent to make treatment decisions if you can't make them yourself? If the answer is yes, a DURABLE POWER OF ATTORNEY FOR HEALTH CARE is probably best. It covers all situations when you can't speak for yourself, not just decisions about life-sustaining treatment. It gives everyone the best legal protection. Your physicians are also required to follow your agent's instructions or to transfer your care to another physician who will. If you don't have someone you want to name as your agent, there are other choices. But first let's talk about the DURABLE POWER OF ATTORNEY FOR HEALTH CARE.

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Do I Need A Special Form For this Durable Power Of Attorney For Health Care?

Yes. You can ask your physician, nurse, or social worker about the form. The California Medical Association has printed forms that meet the statutory requirements. you can get one from them at P.O. Box 7690, San Francisco, California 94120-7690, or by calling (415) 882-5175. You can also get this form from California Health Decisions, Suite 400, 500 South Main Street, Orange, Ca. 92668, (714) 647-4290. There is a small charge for this form from either group. Write or call to find out the cost. Many stationary stores also carry forms. Be sure to get a DURABLE POWER OF ATTORNEY FOR HEALTH CARE, NOT A PLAIN Durable Power of Attorney. Lawyers can also prepare a Durable Power of Attorney for Health Care for you.

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Is This Form Hard To Fill Out?Do I Need A Lawyer To Help?

The form is usually about four pages. Some versions are longer or shorter. All the forms tell you how to fill them out. You can talk with your lawyer if you think that will be helpful, but you don't have to. You will have to think about some things before you can fill out the form. First you need to think about when you would or wouldn't want medical treatment. Next, you need to talk to your family and your doctor. Then you need to decide if you have someone you want to make decisions for you if you can't make them yourself. This "Agent" is sometimes called an "Attorneysin-fact" (not an attorney-at-law), which is why the form is called the DURABLE POWER OF ATTORNEY FOR HEALTHCARE. It is called "durable" because, unlike an ordinary power of attorney, it doesn't lose its effect when you become unable to make your own decisions. Indeed, the DURABLE POWER OF ATTORNEY FOR HEALTH CARE only comes into effect when you can't speak for yourself. Until that time, your physicians will talk with you directly about your treatment choices even if you have appointed an agent.

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Can I Name Anybody To Be My Agent?

You can name anyone over the age of eighteen with some exceptions. You can't name your doctor, nurse, or any other professional who is providing health care for you. You can't name an employee of any person who is providing your health care or of any place where you are receiving care. If an employee of your health care provider or of your health care institution is a relative, then that person may be your agent. You should think very carefully about whom you want to be your agent. It should be someone you feel comfortable talking to. Someone who knows your values and the things you care about. Someone who is likely to know when you are sick and therefore need your agent to make decisions for you. Someone who can be there if you become seriously ill. Someone you feel you can trust to do what you want. And someone who can stand up for what you want. These decisions can be emotionally hard and you want to choose someone who can help you.

You can also name a second choice to be your agent in case the person you name as first choice can't do it for some reason.

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Can My Agent Make Any Decisions That I Would Make If I Were Able?

No, there are some limitations. First, this form lets your agent make only HEALTH care DECISIONS for you when you aren't able to make them for yourself. Second, the law doesn't permit your agent to consent to certain types of treatment: abortion, sterilization, psychosurgery, or involuntary mental health treatment. Third, your agent has to follow any specific instructions you have given and he or she can't make any decision that you have said you don't want made. Other than these limitations, your agent has the same authority to make medical decisions on your behalf that you would have. Your agent acts for you and tries to decide the way you would.

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What Do I Do After I've Decided On An Agent?

First, of course, you should talk with the person you plan to name as your agent to make sure he or she understands what this would mean and agrees to accept this responsibility. Next, you have to decide whether you want to write down any specific instructions about your treatment. You can just name someone to be your agent and let that person make any decisions that need to be made when you aren't able to make them. If you don't write specific instructions, your agent will decide based upon his or her understanding of how you would have decided and what the agent thinks would be in your best interest under the circumstances. Or you can write down when you do or don't want treatment if you have strong feelings about that. Some of the printed DURABLE POWER OF ATTORNEY FOR HEALTH CARE forms have boxes you can check. (For example, "I don't want any treatment if I am permanently unconscious." 0) You can check a box that matches your wishes or you can write your treatment wishes in the blank spaces on the form. You don't have to check any boxes or write anything in the blank spaces. Either way ---whether or not you write specific instruction-it's a good idea to talk with your agent, and with your family and doctor, concerning how you feel about treatment decisions.

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If I Want To Write My Wishes, What Kinds Of Things Should I Think About?

Some people write about what treatments they want. Would they want CPR, or would they want a breathing machine (ventilator), or blood transfusions? That may not always be helpful because you might want transfusions, for example, in some situations but not in others. How much treatment would you want?

  • If lengthy treatment would provide a small chance of full recovery?
  • If you probably wouldn't ever leave the hospital?
  • If you were going to be permanently unconscious?
  • If you would recover your mental capacity but would be paralyzed?
  • If living longer meant being in pain?
  • If treatment might give you a longer life but was very expensive?
  • If treatment meant you would always need a kidney machine (dialysis)?
  • If you needed to be fed through tubes in order to prolong your life?
  • If treatment seemed like it was just stretching out your death?
It will probably help your agent, family, and doctors most to know what kinds of things you value in life related to medical care. For example, how important is independence and self-sufficiency to you? What role do religious beliefs play in your life? What is the significance of illness, disability, and death to you? What do you cherish or fear most? These are hard things to think about. So give yourself some time. It helps to talk to your family or friends and to your minister, priest, or rabbi about this before you make any decisions.

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Do I Have To Talk To Everybody?Can't I Just Fill Out And Give It To My Doctor?

Talking to your agent, your second-choice agent, your family, and your doctor helps them to understand what you want and especially why you feel that way. Your wishes will be clearer to them if they have a chance to ask you questions. You want to be sure that everyone understands (1) who you want to make decisions for you and (2) what decisions you want made.

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What Else Is My Agent Permitted To Decide?

You can also use the form to express your wishes about:

  • If you want to be an organ donor after your death.
  • If you want an autopsy done after your death.
  • What kind of funeral arrangements you want.
If you only name someone to be your agent, that person can make all these decisions for you. That's why it is important to think carefully about who will be your agent. That person has important decisions to make.

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What Do I Do With The Form Once I've Filled It Out?

FIRST, you need to sign and date it and have your signature witnessed or notarized. You don't need witnesses and a notary. If you have the form witnessed, you will need two witnesses. One of them has to be someone who is not related to you and who is not named in your will or entitled to inherit anything from you. The person you name as your agent also can't be a witness. Neither can your doctors or nurses or their employees or any other health care providers, even if they are not providing care for you. Your friends or neighbors can be witnesses.

SECOND, you need to make copies. A copy of the completed form is legally just as good as the original. You should give one copy to your agent, one to your second-choice agent, one to your physician, and one to each family member who would know if you were hospitalized. You need to keep the original yourself and put it in a safe place where you can get at it easily-not in a safe deposit box! You may want to give a copy to your lawyer if you have one. But remember that your lawyer isn't likely to be called if you are in the hospital and can't make your own decisions.

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What If I Change My Mind Or I Want To Add Something? Can I Just Fill Out A New Form?

If you change your mind, you can revoke the form just by telling your agent, your family, or your physician that you have changed your mind. It is best to tell everyone if you can so there won't be a mix-up. It is also a good idea to tear up all the copies of the form if you can. A new form overrules all the earlier forms. If you want to change something or add something, you should start over with a new form. Give copies of the new form to all the people who have copies of your original Durable Power of Attorney for Health Care so they will know about your changes. You-and they-should destroy all the old forms when you make a new one.

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Is This Form Good Forever As Long As I Don't Change My Mind About Anything?

Unless you specify a shorter time period when you prepare your Durable Power of Attorney for Health Care form, it is good until you revoke it and write a new one. If you name your spouse as your "agent" and then you get a divorce your former spouse stops being your agent. If you have written your wishes about treatment in the form, your doctors could still use them to help make treatment decisions for you, however.

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What If I Don't Have Anybody I Want To Name As An Agent? Then What Can I Do?

You can still make an advance directive to express your wishes about treatment. Directives of this kind are often called "LIVING WILLS." There are several ways to do this:

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If You Don't Want Treatment When You Are Terminally Ill Or Permanently Unconscious, You Can Sign A Natural Death Act Declaration.

A Declaration can be signed by any adult who can make treatment decisions and it goes into effect whenever that person can no longer make decisions and is either terminally ill or permanently unconscious. In signing a Declaration, you can say that you don't want any kind of life-prolonging treatment, including artificially supplied food and fluids. Any treatment or medicine that will make you comfortable or prevent pain would still be given, however. Your doctors are protected legally when they follow the DECLARATION.

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Instead Of Using One Of The Statutory Forms, You Could Write A Living Will.

A living will is a statement of your wishes about having or refusing treatment. Other than Natural Death Act Declarations, living wills are not covered by a California statute, and different forms are published by various organizations. If you don't want to use a form, you can just write what you want and don't want on a plain piece of paper. you can have witness's sign this informal "living will" if you want. Writing down your wishes can help your family and doctors decide about treatment for you. If it ever went to court, the judge would probably see that your wishes were followed. Even though there is no statute that protects doctors when they follow a living will, California courts have said it is all right for doctors and families to do what patients said they wanted, including terminating life-sustaining treatment.

You can also write Your wishes in a Durable Power Of Attorney for Health Care without naming an Agent.

If you don't name an agent, the document won't really be a "Durable Power of Attorney" so it won't give your doctors the same legal protection. If you decide to use the form this way, be sure to make clear that you are choosing not to appoint an agent. Otherwise, it might look like you didn't understand what you were signing.

A Durable Power Of Attorney for Health Care without an Agent is like any "Living Will."

If your family understands and agrees with what you have written or checked off on the form, your doctors can follow what is on the form without any trouble arising. But suppose your family wanted to make a decision different from the one you had written down. Your doctors would not be legally protected if they followed your wishes. If your family and the doctors couldn't agree they might have to go to a hospital ethics committee or even to court to resolve the disagreement.

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Why Should I Bother With Any Of These Advance Directives?

When you are not able to participate with the doctors in making decisions about your treatment, someone will have to make the decisions. Thinking now about what you would want and making clear plans is the best way to make sure that the choices you'd want get made by the people you'd want to make them. And it can help your family, friends, and physicians know they are doing the right thing for you, as you would want. If you have further questions about advance directives, please ask your doctor, nurse, or social worker for help.


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