Presentation given to the Silicon Valley New Attorney Roundtable about Health care Planning as part of an estate plan.

1. Health Care Planning
Sheri Sudweeks, Esq.
Sugai & Sudweeks, LLP
200 S. Santa Cruz Avenue, Suite 100
Los Gatos, Ca 95030
408-354-0200
Sugaisudweeks.com

2. Advance Health Care Directive
• Includes individual health care instructions
and a power of attorney for health care
(PC4605)
• Authority only becomes effective on
determination that principal lacks capacity,
unless specifically stated otherwise (PC 4682)

3. AHCD
• Requirements to execute:
– Capacity as defined in PC 4609
– Execution – must include(PC 4673):
– Must include date executed
– Signed by principal or in principals name by another adult in his
presence and at his direction
– Witnessed by 2 witnesses under penalty of perjury, one of which
cannot be related to principal or entitled to part of principal’s
estate
– OR Notarized as alternative to witnesses
– ADDITIONAL Requirements if Execution is in a skilled Nursing
Facility – patient advocate or Ombudsmen designated by the
Department of aging must sign as one of the witnesses or in
addition to notarization

4. AHCD
• Agents
– Authority:
• Health care decisions to the same extent as the principal (PC
4617)
• Postmortem decisions such as disposition of remains,
making anatomical gifts requesting an autopsy or releasing
medical records (PC 4683(b))
– Limits to authority:
• No commitment to mental health facility
• No convulsive shock treatment, psychosurgery, sterilization,
or abortion (PC 4652)
– Liability: no liability for health care decisions made in
good faith (PC 4741)

5. AHCD
• Revocation – principal may revoke by
– Designation of agent by informing the supervising health care provider
verbally or by signed writing (PC 4695 (a))
– Any portion or portions, other than appointment of agent may be revoked at
any time, in any manner that communicates an intent to revoke (PC 4695 (b))
– Latter directive revokes former directive (PC 4698)
• Third Parties-
– Agent under Directive has priority over conservator for making health care
decisions (PC 2356)
– Health Care providers and institutions must comply with instructions from
agent as if from patient (PC 4733)
– Limited reasons allow a health care provide to decline to comply (i.e. reasons
of conscience)(PC 4734)
– Can petition court to enforce (PC 4766(e))
– Health Care provider or institution that intentionally violates directive is
subject to liability and damages that include attorney fees (PC 4742)

6. Talking to Clients about AHCD
Are your documents current?
• Executed Prior to 1997
• Executed Prior to July 2000
• Executed Prior to 2004
• Have you signed a generic hospital form that
revoked your document?
• Statutory form?
• Kaiser (or other PPO/HMO) form?

7. Talking to Clients about AHCD
Agent
• Someone to make decisions for you if you are
unable to do so
• Choosing an agent:
– at least 18 years old
– knows you well
– can be there for you when you need them
– you trust to do what is best for you
– can tell your doctors about the decisions
you would want made

8. Talking to Clients about AHCD
• Your Agent cannot be your doctor or someone
who works at your hospital or clinic where you
get health care, unless they are a family
member or your co-worker.

9. Talking to Clients About AHCD
Is there someone you do not want to be your
agent?
• You can also put this into your AHCD
• You can even put limits on who may visit you

10. Talking to Clients about AHCD
What powers do agents have?
• Only those that you give
• AHCD can give agent immediate power or state that Agent can
only act if you are unable to make decisions
• Your agent can agree to, say “no” to, change, stop or choose:
– • doctors, nurses, social workers
– • hospitals or clinics
– • medical treatment (including artificial feeding), medications or
tests
– • what happens to your body and organs after you die

11. Talking to Clients about AHCD
Your Wishes:
• Terminal Illness
• Life Support
• Irreversible Coma
• Palliative Care
• Nutrition and Hydration
• Hospice
• Long term care
• Organ Donation

12. Talking to Clients about AHCD
Organ Donation
• Entire Body
• Organs and Tissue
• Donate to University, Hospital, Organ Bank
• Limitations: Transplant, Education, Research
• Let Agent make decision

13. Talking to Clients about AHCD
Autopsy
• Religious beliefs
• May be overridden by law enforcement
• Let Agent make decision

14. Talking to Clients about AHCD
Disposition of Remains
• Arrangements that you have in place
• Your wishes
• Agents discretion

15. What do I do with my AHCD?
• Keep the original yourself. Make copies of the
form to share with those who care for you or are
listed as agents.
• Make sure that you place a copy with each of
your doctors, nurses, social workers, and hospital.
• If you keep an emergency bag by your door or a
vial of life in your refrigerator, either include a
copy or the location of a copy.
• Register your AHCD with the Secretary of State.
• Have CODA create a wallet card.
• CMA Wallet card.
Keep a list of who has copies.

16. DNR
• Do Not Resuscitate
• California Form (EMSA)
• Signed with Physician
• EMS policies
• MedicAlert Registration
• Conservator may not execute without
additional court order

17. POLST
• Physicians order for life sustaining treatment
• No Conservator right-need court order
• Signed by doctor and patient/agent
• Sets forth decisions that patient has made
decisions about end of life treatment

18. Authorization for Medical Treatment
of Adult Without Conservator
• Probate code Section 3200-3212
• Permits a petition to obtain authority for a
health care decision for non conserved person
without capacity
• Petitioner may be spouse, friend, relative,
interested person
• Limited to a specific health decision, not an
ongoing course of treatment