Who’ll Make Health Care Decisions?

It is a nightmarish telephone call. The police tell you that your live-in lover has been hurt in an accident and lies in a coma at a nearby hospital. When you arrive, decisions have to be made quickly about his medical care. But will the doctors listen to you, or will they want a family member to decide?

In practical terms, a doctor or hospital is more likely to follow the instructions of a family member than a lover or friend. But even a spouse may have trouble when it comes to persuading a doctor to withdraw life-sustaining equipment.

Still, there is a legal way to designate in advance the person who will have final authority, and thus avoid any conflicts. It is called the “durable power of attorney for health care.”

A regular power of attorney designates someone (called the “attorney in fact” in legalese) as your agent to handle your affairs. However, it does not give the “attorney in fact” the power to make health care decisions on your behalf.

In California, a special separate power of attorney for health care is needed, and the Legislature has created a statutory fill-in-the-blanks form to use. (Most other states recognize the concept but few have such forms.)

In the form, you designate a person to act as your agent for health care. You should name a second choice in case the first person is unavailable or unable to serve.

Try to pick someone who is likely to be around in an emergency--it wouldn’t be wise to pick your brother if he lives thousands of miles away, because health care decisions often must be made promptly with little warning.

You should be sure that the person understands your wishes when it comes to the use of life-sustaining treatment. The form should also clearly set forth your instructions on that issue.

The California Medical Assn. has developed three alternative clauses with different instructions--one that requires life support to prolong life in all cases, one that asks for life support unless doctors have concluded that you are in an irreversible coma, and one that prohibits the use of life-sustaining equipment in most cases.

Sample Statement

As an example, the last clause reads: “I do not want my life to be prolonged, and I do not want life-sustaining treatment to be provided or continued if the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering and the quality as well as the extent of the possible extension of my life in making decisions concerning life-sustaining treatment.”

Don’t try to write your own power of attorney using this sample clause. There are other technical requirements necessary in the form, and it must be witnessed by two adults in a specified fashion. So read the statutory form or the statute completely before you try anything yourself.

Many stationery stores carry the form. If it’s not in your local one, try Wolcott’s in downtown Los Angeles. The form is also reprinted in the law that authorizes it, Civil Code Section 2500, which you can find in any law library.

If you have special concerns, you can have a lawyer prepare one for you, and the California Medical Assn. also has endorsed a form. An excellent resource is “The Power of Attorney Book” by Denis Clifford, published by Nolo Press in Berkeley.

You can make the authority of the power of attorney begin immediately or only have it become operative if you become incapacitated.

It is common to provide for immediate authority if there is an ongoing health crisis, such as a terminal disease. But more commonly, it is written so it only becomes effective when and if you become incapacitated.

And you can specify a family doctor, if available, as the person who decides if you are incapacitated, thus alleviating the need for a court hearing on that issue. You can also designate which hospital or doctor you prefer.

The power of attorney for health care can be used by unmarried couples to make sure that the well partner has authority over the health care needed for the sick mate.

But it also is an excellent idea for all others, because it allows you to direct your own health care from your sick bed by giving you the chance to write out your preferences in advance and appoint someone to speak on your behalf, when you are unable to speak.