What Critical Estate Planning Document are Californians (and The Rest of Us) Missing?

Advance Health Care Directives

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The California Probate Code sets out the requirements and process for executing an Advance Health Care Directive, also known as a Health Care Power of Attorney. This document enables a person (the principal) to appoint an agent (a trusted friend or relative) to make health care decisions on her behalf. If the principal becomes incapacitated, the agent will decide her medical procedures, treatment and other care.

Insurance News Net’s recent article entitled “Finance Experts Warn: 66% of Californians Don’t Have a Key Estate Planning Document” explains that the law enables the principal to do the following:

  • Detail specific instructions on certain medical issues, such as end-of-life care and pain relief;
  • State her wishes concerning the donation of organs; and,
  • Name a physician who has primary responsibility for medical care.

Too many people think they’re finished with their estate plan, after creating a will or trust. However, that leaves some critical gaps. A comprehensive, well-crafted estate plan isn’t just what happens to your property at death. It should also contemplate what happens if you’re incapacitated and unable to make decisions on your own, which is addressed with an advance health care directive.

Here’s a tough situation that individuals could experience without a health care power of attorney, especially for family. If you don’t have a health care directive, your medical care might be on hold. Despite that the fact you express your wishes to someone, that doesn’t mean it’s legally binding. As a result, without a power of attorney, the only way your spouse, children, or other family members can obtain the authority to make health care decisions, is to go to court and file a petition to act as your guardian. This can take some time, especially if they’re not all in agreement.

By preparing an advance health care directive, you give your agent decision-making authority via the document instead of through the courts.

Even if you currently have an Advance Health Care Directive or Health Care Power of Attorney your work isn’t over. As with all estate planning “do it and review it” should be your motto.  When?  You should review your planning with every significant change in health, wealth, and/or family.

There are certain state-specific requirements involved with this process, like having people observe and sign as witnesses, or even having it notarized. Ask a qualified estate planning attorney to help you draft it correctly.

References: Insurance News Net (Jan. 16, 2020) “Finance Experts Warn: 66% of Californians Don’t Have a Key Estate Planning Document”

Vested (Winter 2015) “Focusing on Advance Directives”  Authored by Maureen A. Lyons