By Cozette Vergari
This article was first published in LOS ANGELES LAWYER / NOVEMBER 2007
AHCDs, Surrogacy, and Conservatorship
Spouses who seek to ensure their ability to make healthcare decisions for one another can make their wishes known in an Advance Health Care Directive (AHCD), a form of protection provided under the Probate Code. AHCDs have replaced the Durable Power of Attorney for Health Care, the former statutory device for this purpose. While AHCD forms may be obtained from healthcare providers and online sources, estate planning attorneys may prepare AHCDs as well, tailoring each directive to ﬁt the circumstances of individual clients. An AHCD is often included in an estate-planning package with other estate documents such as a trust or a will.
Spouses can use an AHCD to express their carefully considered choices about future medical treatment and end-of-life issues. These choices may be modified from time to time with an updated AHCD. Among the topics that may be addressed in an AHCD include organ donation, the decision to allow or forbid an autopsy, pain management, and the use of life-sustaining equipment, among others. With an AHCD, a patient who becomes incapacitated temporarily or permanently will still be able to communicate his or her wishes through this writing, which can be legally relied upon by the patient’s designated agent and the healthcare providers.
The AHCD is the means by which a spouse can assert the authority, granted by his or her spouse, to make healthcare decisions on behalf of his or her incapacitated spouse. If the spouse is named as the sole agent in the AHCD, the spouse holds the exclusive right to assume this authority. If the spouse is named as a co-agent, the spouse will work with the other designated co-agent or agents in making the necessary decisions on behalf of the patient. In some cases, individuals do not want to name a spouse as an agent and will designate someone else. There are many reasons why this may be an individual’s choice. If there is no spouse, the individual will appoint whomever he or she deems appropriate.
The agent or co-agents must follow the patient’s directives. These decisions have been expressed in writing by the patient, who has given his or her agents the power to make sure the patient’s wishes are honored by the healthcare providers in the event the patient is incapacitated. No agent may ignore the expressed intent of the patient.
Another way a spouse can gain exclusive authority to make healthcare decisions on behalf of a husband or wife is through the patient’s oral appointment of surrogacy that is communicated to the healthcare providers. Absent an AHCD—the existence of which is often queried by a healthcare provider or facility during the patient intake or admissions process so that the document, if it exists, can be placed in the patient’s records—a patient may orally communicate his or her choice of a surrogate to act on behalf of the patient. This oral appointment, along with the patient’s speciﬁc medical wishes regarding treatment, should be noted in the patient’s records by the healthcare provider. The patient may name a spouse to act as the surrogate who will assume the healthcare decision-making power if the patient becomes incapacitated. The medical wishes of the patient, as recorded by the healthcare provider, must be followed and implemented under the authority of the surrogate spouse. The patient may name anyone as a surrogate to act on his or her behalf.
A surrogate, however, might not have the same expansive authority as an agent named in an AHCD. The patient may not have expressed his or her wishes regarding the full range of circumstances that could emerge during a period of incapacity. A decision by the surrogate that lacks a foundation of evidence of the patient’s intent may be disregarded by healthcare providers who deem the decision to not be in the best interests of the patient. An AHCD provides firmer ground for the spouse acting on behalf of his or her incapacitated spouse. A spouse acting as the patient’s agent under an AHCD has the power to implement the patient’s wishes, which have been expressly stated in a writing. This writing constitutes clear and convincing evidence of the patient’s intent.
A spouse appointed as a surrogate may be absolutely certain of what the patient’s philosophical or spiritual choices would be regarding treatment. However, in the absence of specific evidence of intent in the patient’s medical file, the surrogate is powerless. This is true not only when the patient does not address an issue in the oral communication of surrogacy but also when the oral communication is not properly recorded by the healthcare provider.
The least desirable option available for obtaining the right to make medical decisions on behalf of one’s spouse is a petition to the court for a conservatorship. A spouse or other interested party may request to be appointed as a conservator of the patient. This appointment is subject to objections from other parties. Through proper notice, the patient’s due process rights must be considered, along with those of extended family members. The court may decide to appoint an independent legal representative for the potential conservatee and may also choose to limit the scope of the conservator’s authority. This process can be untimely, cumbersome, and expensive. Conservatorship is a highly scrutinized area of the law and requires expertise.
The execution of an AHCD can avoid the need for a conservatorship. However, if the need for an appointment of a conservator arises, even when an AHCD exists, the good news is that the nomination of a conservator by the patient usually is embodied in the AHCD. Therefore, if a petition to the court is necessary, there will be no controversy regarding the appointee. The AHCD is clear and convincing evidence of the individual’s intent and choice of conservator.
Our next segment of this topic will cover Nonspousal Healthcare Authority
Cozette Vergari, founder of Vergari & Associates, practices estate planning and family law. She and her staff assist clients in the preparation of wills, trusts, advance healthcare directives, deeds, and powers of attorney, as well as probate and family law proceedings throughout the County of Los Angeles court system.