Advanced directives

Advanced directives can provide instructions to others regarding your health care and other decisions when/if you are unable to communicate those decisions yourself. When creating an advance health care directive, for example, you can appoint health care agents (typically family members or close friends) to assist in carrying out your health care wishes when you are unable to express them yourself.

Why do I need an Advance Health Care Directive?

An advance health care directive lets you take control of what happens to you when you are no longer able to communicate your wishes. In the absence of an advance health care directive you may receive unwanted treatment, resulting in prolongation of suffering. Alternatively, treatment that you would choose may be withheld. Placing these decisions on another person, typically a spouse or child, can result in increased emotional distress and potential conflict between family members. When you provide instructions for them, they can be reassured that you are receiving the treatment that you want, and you have removed the weight of the decision from their shoulders.

Advance health care directives have become much more popular since the widely-publicized Terri Schiavo case illustrated the disastrous consequences of failing to document your health care wishes. An incapacitated woman’s parents and surviving spouse had opposing beliefs about what type of treatment Ms. Schiavo would have wanted, resulting in Ms. Schiavo left in a persistent vegetative state for 15 years.

What else does an Advance Health Care Directive do?

A thoroughly drafted Advance Health Care Directive can provide instructions beyond end of life decisions. For example, you can mention your religious or philosophical beliefs, and how you would like your care to relate to those beliefs; your wish to remain in your own home as long as it is safe and financially feasible; if in a facility where it is feasible you can arrange for your recreation and entertainment, and even visitation with your pets. Additionally you can include provisions regarding whether you would like to be an organ or tissue donor, or even the subject of research. You can list your wishes regarding autopsy, disposition of your remains, and what time of service or celebration should be held.

Additionally, it is prudent to nominate a conservator of the person in this document. At any time, the court can determine that you are unable to care for yourself, and a conservator is required to care for you. The person appointed by the court, may not be the person that you would choose for yourself. You can state your nomination for conservator of the person in an advance health care directive.

These types of issues are not covered in most basic health care documents, but are very important considerations. Although it is highly recommended to discuss these wishes with your named health care agents and health care providers; under the law, it is critical that you state these wishes in writing so that they may be honored.

By creating an Advanced Health Care Directive, am I giving up control over my life?

No. As long as you are able to make decisions and communicate your wishes, you may do so. You do not lose autonomy, and your agent will act as an advocate for you. Your health care agent is there to assist you when you are competent, and speak on your behalf when you are incompetent.

Will the doctors follow my Advanced Directive?

If a properly executed Advance Health Care Directive is accompanied by a HIPPA Release, there is no reason that your doctor should not follow your instructions. HIPPA (Health Insurance Portability and Accountability Act) prohibits doctors from disclosing patient information. A HIPPA release authorizes your doctor to communicate with your health care agent about your condition, courses of treatment, etc.

Of course, you cannot request that the doctor violates the law. Beyond that, the doctor should comply. An advance health care directive can grant the authority to your health care agent to transfer you to a different health care provider if your current provider refuses to honor your wishes.

Why McLaughlin Legal?

McLaughlin Legal is a boutique San Diego law firm, and we strive to provide each client with good judgment, personalized legal services, and great results. McLaughlin Legal prides itself on our three core values:

  • Concentrated practice area — McLaughlin Legal prioritizes expertise. Our firm practices the very specific discipline of tax law, and we believe this focus is key to our success. When a client needs tax law services, such as defense in an IRS audit or drafting a detailed estate plan, McLaughlin Legal can match the level of service of any other law firm.
  • Personalized service — McLaughlin Legal knows that each client’s goals, objectives, and issues are unique. We pride ourselves on a personalized approach to each client’s case and responsiveness to their needs. McLaughlin Legal is committed to having strong personal relationships with each individual client.
  • Committed to clients — McLaughlin Legal believes that being responsive, trustworthy, patient, professional, and honorable are the foundations of a successful law firm. Our firm is driven by the highest commitment to protecting our clients’ rights and achieving the best results possible.

McLaughlin Legal’s structure, plus our experience with tax litigation and tax controversies, allows us to represent clients who have tax problems (like an IRS audit or California tax issue) and also advise on other tax law issues with a perspective not found elsewhere. We strive to provide the highest quality services to anyone who entrusts us with their case. Together we can help you and your family achieve all of your estate planning goals.

If you are interested in learning more about estate planning or advanced directives, please feel free to contact us today for a free consultation.