Living Wills and Powers of Attorney for California

Shae Irving

• Publisher: NOLO
• Year: 2020
• Print ISBN: 9781413327113
• eBook ISBN: 9781413327120
• Edition: 6
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Don't let a medical crisis undermine your wishes

No one likes to think about it, but serious accidents and illnesses happen every day. With only a few simple legal forms, you can put important medical and financial decisions in the hands of those you trust the most—while sparing your loved ones expensive, time-consuming, and public court actions.

Using easy-to-follow instructions, this book shows you how to plan for the future by preparing these official California documents:

• An Advance Health Care Directive, also called a "living will." It lets you state your wishes for health care if you become incapacitated and name a trusted person who will work with health care providers to be sure you get the kind of care you want.
• A Durable Power of Attorney for Finances to appoint the person of your choice to manage your finances for you if you no longer can.

This book also explains Do Not Resuscitate (DNR ) forms, which alert emergency medical personnel not to administer extreme life-saving measures, and POLST (Physician Orders for Life-Sustaining Treatment) forms.

With Downloadable Forms (Specific to California)—The forms in this completely updated 6th edition can be downloaded from Nolo.com. Also download a bonus guide on making final arrangements (details inside).

CHAPTER

1

Planning Ahead—An Overview

Why You Should Plan for Incapacity

Getting the Care You Want

Helping Those Who Care About You

Avoiding Conservatorship Proceedings

Using Medical Directives

Advance Health Care Directive

Do Not Resuscitate (DNR) Form

Using a Durable Power of Attorney for Finances

Do You Need a Durable Power of Attorney?

When You Shouldn’t Rely on a Durable Power of Attorney

The Mental Capacity Requirement

Will You Need a Lawyer?

If a Loved One Needs Help

Other Important Issues to Consider

Long-Term Care

Arranging Care for Young Children

Leaving Your Property

Winding Up Your Affairs After Death

If you’re like most people, you aren’t eager to spend time thinking about what would happen if you became unable to take care of yourself because of illness, an accident, or advanced age. It can be just as difficult to contemplate what would happen if a loved one, perhaps an aging parent or an ailing partner, reaches that stage. But sometimes it’s impossible to avoid these issues. You may find yourself wondering: Who would pay my bills and take care of my house if I got sick? How would doctors know what kind of medical care I want to receive if I were hurt in an accident and couldn’t tell them myself? Who’s going to take care of Mom’s finances when her Alzheimer’s disease grows worse?

If you don’t do at least a little bit of planning—naming a trusted person to direct medical care and handle finances—these personal matters could wind up in the hands of doctors or in front of courts who may know very little about what you would prefer. It’s far better to spend a few hours completing the legal documents that will make your wishes clear.

As you think about your preferences for health care and property management, you may be surprised by the range of concerns that arise. In addition to practical and financial considerations, there will surely be emotional aspects to the choices you make. Your own feelings, values, and personal relationships will shape many of your decisions. For many people, making end-of-life medical decisions will also be a time for spiritual reflection and inquiry.

While this book can’t address all of the practical, emotional, and spiritual elements of planning for a time when you may need help with basic care, it can help you understand your options and ensure that there won’t be legal complications down the road.

This chapter introduces the subject of incapacity and how to plan ahead for the time when help may be necessary. It explains the process and briefly describes the legal forms you will need. Chapters 2, 3, and 4 show you how to complete your forms.

The California Probate Code

Throughout this book you will see many citations to the California Probate Code. These citations look something like this: Cal. Prob. Code § 4000. The California Probate Code is the body of law that governs the forms contained in this book—and most other things having to do with planning for incapacity and death in California. The last number in the citation is important—it’s the section of the code (also called a statute) where you can find the actual law supporting what we say. If you ever want to read the law itself, all you have to do is go online or visit a law library to look up the section number. Chapter 5 explains how.

You can also use this book if you are helping someone else to plan ahead and make the necessary documents. (See “If a Loved One Needs Help,” later in this chapter, for a discussion of some of the unique issues you may face.)

Why You Should Plan for Incapacity

Almost every adult can benefit from some planning for incapacity. Below are a few important reasons to take the time to make at least the basic documents directing your medical care and financial management—as well as to consider some of the other planning methods discussed at the end of this chapter.

Getting the Care You Want

Making an advance directive for health care and a power of attorney for finances is the best way—and sometimes the only way—to ensure that you will get the kind of care you want. If you don’t make documents directing your health care, you might receive treatment that is very different from what you would have wished. And if you don’t authorize someone to oversee your finances, a court could put those matters into the hands of someone you’d never choose for the job.

“Living Will” or “Advance Directive”?

You’ve probably heard the term “living will.” That’s the name commonly given to the document in which you state your preferences for health care if you are someday unable to communicate those wishes. People are usually most concerned with stating their wishes about the use of medical technology at the very end of life.

In California, a living will goes by a different name: advance health care directive. This document lets you do more than you can do in a traditional living will. You can use it to state your health care wishes in detail and to take care of other important tasks discussed later in this chapter.

This book uses the term advance health care directive, not living will. But you can rest assured that the document it offers is the one you need to ensure that your wishes are clearly communicated and carefully followed.

It’s especially important to plan ahead if you think it’s likely that family members won’t understand your wishes, or if a court might appoint someone other than your first choice to make decisions for you. For example, planning is essential if you are a member of an unmarried couple, straight or same-sex, and you want your partner to take responsibility for your health care and finances if someday you need help. Without the right legal documents, a court could choose another family member to make financial decisions on your behalf.

Benefits for Domestic Partners in California

Though same-sex marriage is now legal, many California couples still have valid domestic partnerships, and it is still possible to register a new domestic partnership with the state.

In California, registered domestic partners have as much authority to make medical decisions for each other as spouses do. (Cal. Prob. Code § 4716.) And if a court must appoint someone to make medical or financial decisions on your behalf, your registered domestic partner (or someone nominated by your partner) gets the highest preference—again, the same as a spouse. (Cal. Prob. Code § 1812.)

The law requires you to register your partnership with the state to qualify for these benefits. You and your partner may register if:

• you live together

• you agree to be responsible for each other’s basic living expenses for as long as your partnership lasts

• neither of you is married or the member of another currently registered domestic partnership

• you are not related by blood in a way that would prevent you from being married in California

• you are each at least 18 years old, and

• you are both capable of consenting to the domestic partnership.

In addition, you must meet one of the following requirements:

• you are of the same sex, or

• one or both of you is over the age of 62 and one or both of you meets the eligibility criteria for insurance benefits under Title II of the Social Security Act (42 U.S.C. § 402(a)) or the eligibility requirements for benefits under Title XVI of the Social Security Act (42 U.S.C. § 1381).

For information about domestic partnership registration and the forms you need to register, visit the Secretary of State’s website at www.sos.ca.gov/registries/domestic-partners-registry or call the office at 916-653-3984.

It’s also crucial to make a plan if you feel strongly about any of the details of your medical care or financial management. Only you know the particulars of your wishes—for example, that you never want to be placed on a respirator or that your house shouldn’t be sold while you are alive, even if you can no longer live there. Writing down these finer points is the best way to prevent them from being lost.

Helping Those Who Care About You

Writing down your wishes now can be a great help to those close to you if you ever become unable to care for yourself. In fact, your family members and close friends are likely to look upon your planning as a minor miracle. It means that loved ones won’t have to spend long, agonizing hours (and sometimes a lot of money) trying to sort out what you would want, perhaps facing disagreements and disputes among themselves as they do so. Even well-meaning family members can and do argue about decisions relating to health care and money. Especially during a stressful time, different people may sincerely and strongly disagree about what’s best for you.

By stating your wishes in advance, you may not take care of any discomfort others might have about your preferences—but most people will respect what you have asked for and accept your plan. And anyone who wants to challenge your documents will probably be unsuccessful, facing a losing battle in court unless he or she can show that you were not of sound mind when you made your plan, or that you signed documents under duress or as the result of fraud.

Avoiding Conservatorship Proceedings

It may be easiest to understand why it’s so important to plan ahead by considering in more detail what can happen if you don’t.

If you have not made documents directing your health care and you become incapacitated, the doctors who take care of you will suggest what kind of medical care you should receive and turn to family members for decisions. Problems often arise when family members disagree among themselves—or when family members and partners disagree—about what treatment is proper. The most common result is that emotions run high as family members and loved ones take sides in an attempt to take care of you in the way they think best, with all involved sincerely believing they have your best interest at heart.

In the most complicated scenarios, these battles over medical care wind up in court. If that happens, a judge, who usually has little medical knowledge and no familiarity with you, is called upon to decide the future of your treatment, usually by giving one person power to make health care decisions for you. (This person is called a “conservator.”) Such battles are costly, time consuming, and painful to those involved—and they are unnecessary if you have the foresight to use a formal document to express your wishes for your health care.

If you don’t make a document naming someone to manage your finances, similar battles may ensue. Without the necessary document, your relatives or other loved ones will have to ask a judge to name a conservator to manage your finances.

The upshot of all this is that, without a couple of simple legal documents prepared in advance, a court may have to appoint a conservator to take care of your medical care, your finances, or both. Conservatorship proceedings can be complicated, expensive, and embarrassing. Your loved ones must ask the court to rule that you cannot t...

Table of contents

• Cover
• Title
• Copyright
• Acknowledgments
• About the Author
• Table of Contents
• Your Living Will and Power of Attorney Companion
• 1 Planning Ahead—An Overview
• 2 Advance Health Care Directives
• 3 Do Not Resuscitate (DNR) and POLST Forms
• 4 Durable Powers of Attorney for Finances
• 5 Help Beyond the Book
• Appendixes
• Index