Completing Your Own Advance Health Care Directive (AHCD)

· What is it?

An Advance Health Care Directive (AHCD) is also known as a “Durable Power of Attorney for Health Care,” “Advance Directive,” or “Living Will.” It is a legal document which allows you to record your decisions about future health care treatment in the event you are no longer able to make your own decisions.

There are two components to an AHCD, and you can choose to complete either one or both: (1) Choose and appoint agent/s to make health care decisions for you, and (2) Provide your health care wishes or instructions. You are called the “principal” in this document.

Remember that an agent can never override your wishes- you are not giving away your own decision- making power by completing an AHCD, and an AHCD can be revoked at any time and can be changed by creating a new document.

· Why do I need one?

Everyone should complete an AHCD, regardless of age and health, and the best time to complete it is before a crisis occurs. It is a common misconception that only those who are older or anticipating medical treatment should have an AHCD- this could not be more wrong. Another common misconception is that a spouse or child would automatically be able to step in and make health care decisions on your behalf, even if you have not designated them as agent/s in an AHCD. In California, nobody automatically has such authority¹. Without an AHCD, family members may be left confused about what to do, may argue about who should make decisions and what those decisions should be, may be forced to go to court to seek a conservatorship to make decisions, or, in some cases, a physician could be forced to appoint the person they believe is best suited to act.

An Advance Health Care Directive is the simplest and surest way to control future health care treatment, ensure that your wishes will be respected, and importantly, make it easier for children and loved ones to make the right decisions on your behalf. While we are social distancing in our homes, it is a perfect time to start those conversations that most of us have been avoiding.

Bet Tzedek has created a simple AHCD form which is included in this packet. While we often assist our clients in completing this form in person, we want to provide the option here to do it on your own. You will be responsible for correctly filling out the form on your own.

To create a valid AHCD, you will need two adult witnesses or a notary to witness your signature and acknowledge that you are competent and acting under your own volition. The witnesses cannot be the persons you are appointing as your agents or your health care provider.

· How does the witnessing work?

You can fill out everything in the AHCD except the final signature beforehand, and then sign the final line in front of your witnesses or a notary.

A common approach is to ask neighbors to witness your signature if you do not have household members who are able to do so. We have included a handout for you to provide to your intended witnesses with information to help you explain what they are signing and to ease any worries they may have.

What if I do not have two witnesses? A notary can be used in place of witnesses, but notaries do charge for their services. If you do decide to use a notary, make sure you confirm that they follow social distancing and safety protocols before hiring them. Notaries can come to you if you are not able to travel.

If you do not have two witnesses and cannot pay for a notary, then your AHCD cannot technically be complete and valid. However, a signed document that is not witnessed or notarized, or only witnessed by one person, could still be better than having nothing should an emergency arise. A health care provider or family members could potentially use the incomplete document for guidance or direction.

*If you are currently residing in a nursing facility, special rules apply, and your AHCD would need to be additionally witnessed by the facility ombudsman. You would need to work with the facility and unfortunately cannot complete it on your own.

· Filling out the form:

We have included a sample form for you, with each section numbered. Review the sample and think about your choices before starting to fill out your own form. The numbers below correspond with the numbered locations on the sample form. If the form is not filled out correctly it could create problems.

Name: Your current name
- also known as/formerly known as: Any names you have previously used if you think you may have medical records in these names.
Immediate or only upon incapacity: This is a personal The default is that your agents do not have any authority to act on your behalf until you are no longer able to do so. If that is your wish, you can move on to the next step. Should you have the need for immediate help managing your medical care, this may be a good option for you, and you would initial in this box.

3. Naming Your Agent and Alternate Agent(s):

*If you do not wish to appoint an agent, move on to the next section, having an ACHD is still beneficial without appointing an agent.

The agent you choose will have legal authority to speak for you in health care matters should you become unable to make your own health care decisions (or immediately if that is your preference). The agent you choose should be a person whom you trust and who understands your values, beliefs, and desires. Your agent must be at least 18 years old and cannot be your physician or an employee of a health care facility where you receive care.

You can appoint up to three agents, a primary agent and two alternatives who would step in should the primary agent not be You do not have to select alternative agents,but it is a good option if possible, so that someone is able to speak for you even if your primary agent is not available (if they are out of the country or ill for example).

Trust and reliability are more important than location- think first of which potential agent you feel comfortable discussing these topics with and would better carry out your wishes, rather than focusing on who lives closer.
Remember that your agent can never override your wishes, they must follow your instructions to the best of their knowledge, and they will not be responsible for your medical Note also that you are not forcing anyone to act by appointing them as your agent, they can decline if they are not able to carry out the function. We have provided more information in the attached Agent Instruction Form.
It is very important to use the correct spelling and contact information for your agent to avoid any issues in the Please confirm that you have the correct information before completing the form.

Review Agent Authority: Your AHCD will give your designated agent the authority to make all health care decisions on your behalf that you would otherwise make yourself, should you become incapacitated. If you do not want your agent to have the authority to conduct all of these activities, you may limit your agent’s authority by crossing out the post death authority in this section, or otherwise limiting the authority in “Other Instructions Authorizations” box discussed in the next
Nomination of Agent as Conservator: A conservatorship is a protective legal proceeding in which the court appoints a person or organization to make decisions for an incapacitated adult. A court may order a conservator of the person for someone if it is found that they cannot provide for their personal needs for physical health, food, clothing or shelter. If a conservator of your person ever needs to be appointed by the court, you may elect to have the agent(s) listed on your AHCD nominated to serve as your conservator. Ideally, having an AHCD in place would prevent the need for any such court intervention. However, should a conservatorship ever become necessary, you may indicate that you wish for your agent to be appointed as conservator. This nomination does not mean you consent to a conservatorship. If you would like to nominate your agent(s) initial in the box.
Health Care Instructions: An AHCD allows you to provide instructions on your health care treatment preferences. Specifically, the form will address the type of treatment you would like to receive in an end-of-life situation where artificial means are required to keep you alive because you are in an irreversible coma, persistent vegetative state, or terminally ill. The form includes two statutory choices. You may choose one of the two by initialing in the corresponding box, or you may choose neither if they do not apply to You may also list additional health care instructions in the ”Other Instructions/Authorizations” box below if you would like to.
- Remember that there is no correct choice, and this document is simply meant to make sure your wishes are fulfilled.
Signature: – DO NOT sign the document until witnesses or a notary are present!
Witness Signatures: When the witnesses have observed you sign the document, they sign and date here, and include their addresses.
Witness Declaration: One of the witnesses also needs to sign and date the witness declaration here, stating they are not related to you, nor do they stand to inherit your estate.

Ombudsman Declaration: *Do NOT fill this out*. This portion only applies if you are residing in a nursing If you are, you need to speak with the facility and will not be able to complete this form on your own.
Notary Acknowledgement: If you are NOT using witnesses, this is the portion a notary will complete. If you used witnesses, leave this blank.

· What do I do once the AHCD is completed and signed?

Make copies! You can take a photo with your phone or ask someone with a smartphone to take a photo. Then email it or make and give physical copies to your agents and to health care providers.

If you appointed an agent- talk to them about your wishes and give them attached agent instructions.

You can change your mind at any time and revoke your directive

Communicate your intent by telling your provider, signing a revocation, or tearing it up
Sign a new AHCD – this revokes any previous directive
inform your agent/s and provider that the old AHCD is no longer valid

You can change your agents and/or health care instructions at any time by signing a new AHCD.

· Attached documents:

Agent Instructions– Give this document to your agent and make sure you talk to them about the AHCD.

Principal Instructions– Review this document for yourself, and use it as a guide for your chat with your agent.

AHCD Sample Form– sample form filled out for you to follow along in.

AHCD Blank Form– blank form for you to complete and sign.

Handout for Witnesses– A short informational overview of the responsibilities of witnesses for you to give to a person you intend to ask to witness your document.

If you have questions about how to complete this form, or other questions related to Advance Planning, please call us at (323) 549-5886.

*The information presented herein is intended for educational purposes only. This information is not intended as legal advice. Your use of these materials creates no attorney client relationship between you and Bet Tzedek Legal Services.*

Advance Health Care Directive: Agent Instructions

You have been named a health care agent. This means you have the ability to make health care decisions on someone’s behalf should they become incapacitated. The person who gave you this authority is referred to as “the principal.” If you are named as an alternate agent your authority will only begin if the primary agent is not available.

Your Authority:

Physicians and other health care professionals will look to you to make decisions on behalf of the principal, your authority includes:

· Speaking to doctors, including asking questions and receiving information

· Accepting or refusing treatment

· Choosing a doctor

· Making funeral arrangements

· Accessing medical records

· Donating organs

(See CA Probate Code §§ 4615, 4617)

Your authority is limited; the principal retains the right to make their own health care decisions so long as they are able to give informed consent (unless specifically provided in the AHCD). You must act in accordance with the wishes of the principal to the extent that they are known, and when they are unknown, you should make decisions on behalf of the principal in their best interest. In determining what is the principal’s best interest, you should consider their personal values to the extent that you know them. You do not have the authority to:

· Place the principal in a mental health treatment facility

· Authorize assisted suicide or euthanasia

· Authorize convulsive treatment, psychosurgery, sterilization, or an abortion

(See CA Probate Code §§ 4652)

As a health care agent, you do not have any authority to manage the financial affairs of the principal. Your authority is limited to health care decisions only. You will not be responsible for any medical bills incurred in the treatment of the principal.

Your Obligations:

You have been given a great responsibility and it is very important that you take the time to speak with the principal about their preferences for health care and what is important to them when choosing medical treatment, as well as review the Advance Health Care Directive for any instructions the principal has provided therein. You must follow all the instructions and wishes of the principal to the best of your knowledge. You are immune from liability as long as you act in good faith.

Important additional topics to discuss include:

What is the principal’s wish for end-of-life care? How does the principal feel about the use of life sustaining measures (for example, the use of a respirator or artificial nutrition) in the face of an irreversible coma or terminal illness?
Does the principal have any religious instructions or preferences for the handling and disposition of their body?
Has the principal made any burial arrangements? If they have already made arrangements, get all available information and keep it in a safe place to avoid confusion later. If the principal has expressed a wish to be buried, what appearance do they want to maintain (for example, dress, hairstyle/length, makeup, etc.)?
Does the principal wish to donate their body? If the principal wishes to donate their body, it is important to make these arrangements before death.
Does the principal have instructions regarding how they want to be addressed or referred to in medical care and post-death, including name and pronoun(s)?

What to do Next:

You should keep an easily accessible copy of the Advance Health Care Directive in case of a health care emergency. It would also be helpful for you to confirm with the principal that they have provided copies of the directive to their health care providers. In addition to keeping a paper copy of the Advance Health Care Directive, it is a good idea to keep an electronic copy so it is always with you. Scan it and email it to yourself or take a picture so it is always accessible should you need it. You need to be able to provide a copy of the directive in order to exercise your authority. If the principal has had a legal name and/or gender marker change, it may be helpful to have a copy of the court order to link the principal to health records under a previous legal name.

Advance Health Care Directive: Principal Instructions

You have completed an Advance Health Care Directive. This document will be valid for the rest of your life unless you revoke it or set a date for it to expire.

If you have designated an agent/s in your Advance Health Care Directive, it is very important for you to speak to your agent/s about your end-of-life health wishes and concerns, even if they are specified on the form. Make sure to take the time to sit down with your agent/s and discuss your preferences, make sure they understand your health care and end-of-life wishes, and are willing to accept this responsibility. Informing your agent of your preferences will help them make informed decisions on your behalf and feel confident in their actions.

Important additional topics to discuss include:

What is your wish for end-of-life care? How do you feel about the use of life sustaining measures (for example, the use of a respirator or artificial nutrition) in the face of an irreversible coma or terminal illness?
Do you have any religious instructions or preferences for the handling and disposition of your body?
Have you made any burial arrangements? If you have already made arrangements, provide the agent with all available information to avoid confusion If you wish to be buried, what appearance do you want to maintain (for example, dress, hairstyle/length, makeup, etc.)?
Do you wish to donate your body? If you wish to donate your body, it is important to make these arrangements before death.
Do you have instructions regarding how you want to be addressed or referred to in medical care and post-death, including name and pronoun(s)?

Provide your agent/s, primary care physician, and other health care providers with a copy of the Advance Health Care Directive so they may keep it on file. Copies of the Advance Health Care Directive are just as valid as the original.

It is useful to maintain a list of the people and institutions that have been provided with copies of your Advance Health Care Directive. This will assist you in providing updates to the appropriate people should you make changes to your directive in the future.

You should keep a wallet card to alert medical personnel that you have an Advance Health Care Directive and to ensure your agent/s’ contact information is readily accessible in case of emergency. Make sure to keep several copies of the Advance Health Care Directive along with the original, but note that if you need to make copies of the original, do not remove the staple.

If you have had a legal name and/or gender marker change, it may be helpful to give your agent a copy of the court order to link you to health records under a previous legal name.

Wallet cards for your convenience:

Important Notice to Emergency Medical Personnel

I, (name/s) (date of birth)

have executed an Advance Health Care Directive. If I am unable to make my own health care decisions, my designated agent has the legal authority to make those decisions on my behalf, including decisions concerning life sustaining treatment. In such an event, one of the persons listed on the reverse of this card should be contacted immediately, in the order listed.

Agent’s Name: Phone: Ph./email:
Agent’s Name: Phone: Ph./email:
Agent’s Name: Phone: Ph./email:

Witnessing an Advance Health Care Directive

Hello, I am completing my Advance Health Care Directive. For this document to be valid, two witnesses have to watch me sign the document, and then they have to sign and date the witness portion and write down their addresses.

I am asking you to watch me sign and be my witness. By witnessing my signature on this document, you are not taking any responsibility for, or getting involved with my health care, nor do you need to read the contents of the document. By signing you are only stating the following:

That you know who I am (or I have shown you my ID if you do not know my name!);
That I signed the document in front of you;
That I appear to know what it is I am signing and that nobody is forcing me to do it; and
That you are not my agent or my health care

One of the two witnesses has to sign twice- that person is also stating one more fact:

That you are not related to me, and that you are not going to inherit my estate when I pass away.

Thank you so much!

Download The Resource Here