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Advanced Health Care Directives: What You Should Know During Pandemic

During this COVID-19 crisis, hospitals can be a scary place.  Fear of contagion, staff and supply shortages, and delayed testing and medication make it even more terrifying.  Most people feel completely out of control in this high intensity environment.  In reality, we are all “out of control” once we enter the emergency room doors.  However, the Advance Health Care Directive (“AHCD”) can help you ensure you stay in control of the decisions being made to you or a loved one’s behalf.

Invented by statute in 2001, AHCDs are the pre-made decisions and appointments of trusted decision makers prior to a patient ever walking into the hospital.  It is a legal document, that must be obeyed (except for extreme/emergency situations).

Do doctors have to follow the AHCD?  Generally, yes.  In general, a doctor or hospital providing care to you must comply with your health care instructions, and with instructions made by a person authorized by you to make health care decisions for you if you cannot, the same as if the decision had been made by you[1].

When can a doctor disobey the AHCD?

  • Reasons of conscious[2];
  • If the instruction or decision is contrary to a policy of the hospital that is expressly based on reasons of conscience, so long as the policy was told to you or your AHCD agent as soon as they knew there was a conflict[3].
  • A decision that requires medically ineffective health care, or health care that is contrary to generally accepted health care standards applicable to the health care provider or institution[4].

What happens if the doctor disobeys the AHCD?  The doctor or hospital must promptly so inform you and your AHCD agent[5].  Unless you or your AHCD agent refuses assistance, the doctor or hospital must immediately make all reasonable efforts to find another doctor or hospital willing to comply with your decision[6].  Additionally, the doctor or hospital must continue caring for you until a transfer can be accomplished, if possible. This includes pain relief.[7].

Why Should You Have an AHCD?  An AHCD is private and gives you an inexpensive tool to address health care needs and preferences before incapacitation. It also gives the you control over choosing a trusted agent, a person you trust to make medical decisions on your behalf if you no longer have the capacity do so. Most people prefer to have their affairs controlled by someone they trust, especially when their health is at issue. You can feel secure knowing the agent knows your preferences regarding important health care decisions and will act in your best interests.

By Andrew R. Stilwell, Esq., Attorney at Contreras Law Firm

[1] See Probate Code § 4733

[2] Ibid.

[3] See Probate Code § 4734(b)

[4] See Probate Code § 4735

[5] See Probate Code § 4736(a)

[6] See Probate Code § 4736(b)

[7] See Probate Code § 4736(c)

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