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Today’s Question:
Last time I was in the hospital, I told my doctor who should make medical decisions for me if I could not make them for myself. My doctor promised to “put it in the system”. Does that mean that I don’t need an Advance Health Care Directive?
The Answer
No, you still need an Advance Health Care Directive. What you created was a surrogate. Surrogacy is valid only for a maximum of 60 days and has limited authority.
Under California Probate Code Section 4711, a patient may designate, orally or in writing, a surrogate who may make health care decisions for the patient. Should an oral designation of a surrogate be made, it must be promptly recorded in the patient’s health care record. The surrogate must be an adult who is not already a health care agent or conservator for the patient.
Naming a surrogate is a nice back-up, but there are problems.
First, it expires. 60 days may not be enough time to treat your injury, and if you don’t have a health care agent in place, you might be at risk.
Second, it only applies to the illness you are suffering from at the time your doctor asks you to name a surrogate. If you go to the hospital for “illness 1”, but after 5 days it’s discovered that you instead need to be treated for “illness 2”, unless you are again asked to name a surrogate, your original surrogate may not be asked to make decisions regarding “illness 2”.
An advance health care directive is simple, inexpensive, and long-lasting. Typically it is drafted to protect you for life, allowing your named agent to decide for you only after your doctor concludes that you are unable to decide for yourself.
Bonus Question: What if I hire an attorney to draft an Advance Health Care Directive, I choose my father as my health care agent, 20 years go by, I’m in the hospital, my father is still healthy and willing to serve, but I’d rather my spouse of 15 years act instead. Am I stuck with my father?
Answer: No. California probate code 4711 states that when a patient chooses a health care agent through a power of attorney for health care, but orally chooses a surrogate during the course of treatment, the surrogate has priority over the agent for the period specified (for a maximum of 60 days).
Therefore, an Advance Health Care Directive offers a lot of protection with very little risk.