In 1990, the U.S. Supreme Court decided that every individual has the constitutional right to control his or her medical treatment.  Crusan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990).  The Court further held that medical personnel must follow "clear and convincing evidence" of a person's medical treatment wishes, even if the medical personnel or the patient's family do not share those wishes.

So long as you remain conscious and lucid, you can control your medical treatment by instructing your physician as to what procedures you do and do not want performed.  However, the picture becomes less clear if your health deteriorates to the point that you cannot make or communicate your health care decisions, as well as hospital protocol and physician preferences, come into play.  Wouldn't it be better to make these decisions by putting your wishes down in writing in advance?

In recognition of the legal right to control one's own medical treatment, all of the states now permit individuals to execute a document that provides the "clear and convincing evidence" of their wishes concerning life-prolonging medical care.  Different states permit different documents and call them by different names.  The most common names for these documents are "Living Will" (although the document is not actually a will), "Durable Power of Attorney for Health Care," and "Advance Directive."

A living will is a document that sets forth your decision whether or not to receive certain forms of medical treatment.  If your doctor wants to give you a treatment rejected in your living will, your doctor must either follow your wishes or transfer you to another physician or facility that will follow them.  A durable power of attorney for health care appoints someone of your choosing to ensure that your health care providers provide the types of care you want.  California and other states combine the living will document and the durable power of attorney for health care in one document, i.e., an Advanced Health Care Directive.

In a living will, you can direct that certain life-prolonging procedures, such as artificial breathing and cardiac apparatus be provided, or withheld; in the event you become unconscious, comatose, or terminally will.  In some states you can also direct that artificial administration of food and water be provided or withheld.  You can indicate your preferences regarding pain-relieving medications or procedures.  In order to make good decisions, talk to your doctor.  This will also help you to gauge your doctor's likely level of cooperation with your wishes.

In a durable power of attorney for health care, you can direct that a person of your choosing make decisions about your care in accordance with your wishes.  Your "agent" can also gain access to your medical records, speak to your doctors, and seek court intervention on your behalf if necessary.  A durable power of attorney for health care can go into effect when you sign it or when you later become unable to communicate your wishes.

An estate planning attorney can assist you in communicating your health care decisions in a properly executed living will and durable power of attorney for health care.  Once the document is properly prepared to your satisfaction and legally signed and witnessed, you should provide copies of the documents to your physicians, hospital, health care plan, close relatives and the person named as your "agent" in your durable health care power of attorney.

You can change your living will and durable power of attorney at any time.  However, it is important that these documents be changed in a legally binding written document.  It is advisable to review these documents from time to time to ensure that they still accurately reflect your wishes.  If they do not, you should consult with an estate planning attorney regarding how to make the changes you desire.

Please call (818) 991-6664 or email us now to get answers to your questions.

Copyright © 2007 Law Offices of John D. Williams. All rights reserved.

We are centrally located to represent clients throughout California, in Los Angeles County and Ventura County, including Camarillo, Moorpark, Newbury Park, Oak Park, Ojai, Oxnard, Simi Valley, Thousand Oaks, Ventura, Westlake Village, Agoura Hills, Calabasas, Canoga Park, Chatsworth, Encino, Granada Hills, Malibu, Northridge, Reseda, San Fernando Valley, Sepulveda, Sherman Oaks, Tarzana, Van Nuys, West Hills, Woodland Hills.