The Family Times, Spring 2004

Help in the Hardest of Times
James F. Cote, Esq.
Published in The Family Times, Spring 2004

I have followed with painful interest the news story out of Florida about Terri Schiavo, the young woman who has been in a coma for 13 years.  Her husband wants to let her die; her parents want to keep her alive.  Lawyers, judges, the Florida State Legislature, and even Governor Jeb Bush have played parts in this sad drama.  Terri Schiavo is still alive today and the legal ending to her story is not yet known.  My interest in this story is threefold.  

First, I watched my father suffer for three years as he battled to a slow but inexorable death from ALS, commonly known as Lou Gehrig’s disease.  Our family faced a seemingly never-ending stream of difficult health care decisions.  Like the Schiavo family, we have been there. 

Second, as a son, a husband and a father, I can know all too well the emotions on both sides of the Schiavo story.  Sometimes we want to keep a loved one alive because we are afraid to face the pain of loss; time spent with a loved one we know will die soon is so precious, we want every last possible minute of time in their presence, no matter their medical condition.  On the other hand, I remember when I prayed for God to let my father’s suffering end. 

Third, as an estate planning attorney, I know the Schiavo saga never had to go this far.  Regardless of which side you were on in this saga, a simple health care directive could have let her family and the world know exactly what she would want done for her now.  The story would never had become a prolonged national news item.

California Health Care Directive Law

On July 1, 2000, the California Health Care Decisions Law (“the Law”) became effective. Probate Code Sections 4600 - 4805.  (All references in this article will be to the Probate Code.) The Law allows each of us to expressly give instructions regarding our health care, including the nature and extent of care we want, and do not want, if we are seriously injured or suffering from an incurable disease.  We can also designate someone to act on our behalf in making health care decisions, either an Agent or a Surrogate, and who we would like to be appointed as our conservator.

The Public Policy

Most Californians are probably unaware of the powerful public policy which the Law proclaims in Section 4650:

(a)     . . . an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.
(b)     . . .  prolongation of the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.
The Documents
“Health care instructions” are defined as “a patient’s written or oral direction concerning a health care decisions for the patient.”  Section 4623.
A “power of attorney for health care” is “a written instrument designating an agent to make health care decisions for the principal.  Section 4631.
An “Advanced Health Care Directive” (Sections 4670 through 4678) can be either an individual health care instruction, or a power of attorney for health care (Sections 4680 and 4690).  Section 4605.  However, most Directives contain both instructions, the designation of an Agent, and the designation of a conservator.  (Section 4701 contains a statutory  form with these three options.)
A directive does not grant any authority regarding any of your assets, only your health care decisions.
Unless expressly stated otherwise, the authority of an Agent is not effective until the patient lacks capacity to make his/her own decisions.  Section 4682.
The Actors
An Agent is “an individual designated in a power of attorney for health care to make health care decisions.”  Section 4607. 
A Surrogate is someone other than a designated Agent (Section 4643), whom the patient designates  by personally informing the supervising health care provider, either orally or in writing, to make health care decisions.  Section 4711(a). 
You can designate anyone you trust with your ultimate decisions - your spouse, significant other, domestic partner, adult children, or close friend.
The Scope of Authority Permitted
Under Section 4617, the Law grants authority for all health care decisions, including:
     (a)  Selection and discharge of health care providers and institutions.
     (b)  Approval and disapproval of diagnostic tests, surgical procedures, and programs of medication.

     (c)  Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
While Section 4653 specifically proscribes “mercy killing, assisted suicide, or euthanasia,” it goes on to state that this restriction does not encompass “withholding or withdrawing health care pursuant to an advance health care directive . . . so as to permit the natural process of dying.”  

Period of Effectiveness of Designation
The designation of an Agent in a Directive has no statutory limit on the period of effectiveness.  Section 4686.   CAUTION: Directives or Powers of Attorney for Health Care executed prior to July 1, 2000, were only effective for seven years from the date of execution.
The designation of a Surrogate is only good for the lesser of (1) “the course of treatment or illness or during the stay in the health care institution when the surrogate designation was made” or (2) 60 days.  Section 4711(b).
Immunities and Liabilities of the Agent
A health care provider is immune from liability for complying in good faith with instructions from an Agent or Surrogate (Section 4740(a)), for declining to comply “based on a belief that the person then lacked authority” (Section 4740(b)), or for following health care instructions assumed to be valid (Section 4740(c)).
An Agent or Surrogate who acts in good faith is provided full immunity from civil or criminal liability.  Section 4741.  
A health care provider who intentionally ignores an instruction is subject to civil liability of $2,500 or actual damages, whichever is greater, plus attorney’s fees.  Section 4742(a).
Anyone who alters or forges a Directive in order to have health care withheld or withdrawn, which results in the patient’s death to being hastened, is subject to prosecution for homicide.  Section 4743.
Limitations on Judicial Intervention
Judicial intervention in health care decisions is disfavored.  Section 4750.  There are limits on the individuals who may file a Petition regarding health care (Section 4765).  The purposes of such a Petition are limited to the following: determining whether the patient has capacity, whether the Directives is in effect or terminated, whether the acts or proposed acts are consistent wit the patient’s instructions, and/or to terminate the authority of a Surrogate.  Section 4766.
With my father we were lucky: Unlike Terri Schiavo, my father was able to communicate with us, although with increasing difficulty, until the day he died.  For patients like Terri Schiavo who cannot communicate, the family can make and be comfortable with difficult health care decisions if a Directive clearly states the patient’s desires.
I routinely prepare Advance Health Care Directives for nearly all of my estate planning clients.  Our discussions on the topic are sometimes uncomfortable.  Many clients often have to ponder the difficult issues raised for some time before I can finalize their Directives.  I know the day will come when the Directive will prove to be the single most important estate planning document a client has signed, because it will provide critical help in the hardest of times.