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INTRO: In Part One of this series, we spoke about how Advance Health Care Directives tend to be the “poor step-child” of estate planning, typically taking a distant back seat to trusts, wills and powers of attorney. Today we will discuss what Advance Health Care Directive documents are required in California, how often you should update your Durable Power of Attorney for Health Care Power (DPAHC), and more.
In many states, different (and sometimes multiple) documents are legislated and/or used commonly, including Living Wills, Medical Directives, Health Care Powers of Attorney, Health Care Proxies, and others. For many years, California law provided for the use of a Durable Power of Attorney for Health Care Power (DPAHC) but there were also other documents in use with various titles, including Natural Death Act and Directive to Physicians. Then, in 2000, California’s AHD law was enacted to consolidate the various forms that indicated health preferences. Generally, validity requires that the principal’s signature on an AHD be notarized or witnessed by two individuals.
If you have an older DPAHC, it is not, per se, invalid; however, you should be on alert about a few things. One is that for many years, a DPAHC was effective for only seven (7) years after executing it. So, some people believe they still have an effective document but it may, in fact, be expired.
Another word of caution is that in 2003, HIPAA, a federal privacy law became effective, under which strict rules govern when and to whom a health care provider may disclose “protected health information”. All properly drafted AHDs should have a HIPAA Release provision (or alternatively, an applicable HIPPA release form attached to the AHD), specifically authorizing health care providers to turn over your medical records to your appointed AHD agent. NOTE: shockingly, some of the most common forms (pre-printed by large organizations) still do not contain a HIPAA release.
A word to the wise – if you have a valid AHD, and you only appointed one agent, consider establishing a new one in which you designate a primary agent and at least one alternative agent. Without an alternate agent listed, if you and your agent (e.g. spouse or child) are in a common accident or your agent is for some reason unable or unwilling to serve upon your incapacity, nobody you trust will have legal authority to make your medical decisions on your behalf.
This article is intended to provide information of a general nature, and should not be relied upon as legal, tax, financial and/or business advice. Readers should obtain and rely upon specific advice only from their own qualified professional advisors. This communication is not intended or written to be used, for the purpose of: i) avoiding penalties under the Internal Revenue Code; or ii) promoting, marketing, or recommending to another party any matters addressed herein.
Mr. Silverman is an attorney with R. Silverman Law Group, 1855 Olympic Blvd., Suite 125, Walnut Creek, CA 94596; (925) 705-4474; rsilverman@rsilvermanlaw.com.
ESTATE & TRUST ADMINISTRATION: Need to find an experienced estate & trust administrator in Walnut Creek CA? Contact Robert Silverman at 925-705-4474 for legal advice on a Revocable Living Trust, “Summary” Estate Administration, Trust/Estate Beneficiary Representation and Will & Trust Disputes.