Advanced Health Care Directives

LESSONS OF THE SCHIAVO MATTER

Tragically, as everyone knows, Terry Schiavo was a 41-year-old Florida woman who, allegedly, had been in a “persistent vegetative state” for 15 years.  Her feeding tube was removed and she subsequently died.  An astonishing array of legal, political, religious, and ethical arguments have been made with respect to what her wishes might have been.  However, what is reasonably clear is the simple lesson that these types of disputes can easily be avoided if parties plan ahead.

             1.  Execute an Advance Health Care Directive (Durable Power of Attorney
                  for Health Care Decisions).

 The California Advanced Health Care Directive allows you to: (a) state your health care wishes, and (b) designate an agent (sometimes called the attorney-in-fact) to carry out those wishes.  Specifically, the directive allows you to state your wishes as to what kind of care you want in certain scenarios, as well as establish ground rules for autopsies, organ donations, burial and other situations.  While the directive is not always binding, generally a patient’s wishes will be upheld.  The directive is a formal legal document requiring notarization or witnesses.  California documents executed in 1992 or thereafter can be effective indefinitely.  Documents prepared prior to 1992 will have already expired and need to be redrafted, executed, and notarized.

             2. Have an Integrated Estate Plan.

Generally, the Directive is one document which is part of your integrated estate plan.  An estate plan also includes a trust, will(s), asset transfer documents and financial powers of attorney, etc.  In these documents, each person states his or her wishes as to the disposition of assets, control and succession with respect to his or her business and other assets, and the manner in which potential estate taxes and involvement of the probate court should be resolved.  An estate plan can also provide for other specific concerns.

           3. Keep the Advanced Health Care Directive and your Estate Plan up-to-date.

Wishes can change - what made sense at one time may no longer make sense with the passage of time or with new developments.  Changes in assets, increases or decreases in values, births, deaths in the family, and changes in the law are only some reasons why plans require updating.  Evolving personal or religious beliefs are also some specific reasons why the directive might be changed.

Having a writing clearly stating your wishes is vital, as unforeseen events can happen to anyone at any time, regardless of your age or your current well being.  We are available to assist you with your estate planning and other legal needs.  Please feel free to contact us if you would like to obtain more information.

 Also, one should have his/her trust or Will reviewed every three to four years.  Changes in one’s family situation and in the law dictate this.  For example, the Advanced Health Care Directive, Durable Power of Attorney (Financial), and/or the Assignment to Trust has a new format and needs updating.