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There is an important distinction in estate planning between a power of attorney for financial affairs and an advance directive, also known as a power of attorney for health care. Both documents fulfill a similar purpose – appointing an agent to act on your behalf when you are incapable of doing so for any reason. In many cases, people choose to appoint the same person as agent for both purposes.

Court Invalidates Arbitration Agreement Signed Under Non-Healthcare Power of Attorney

A power of attorney and an advance health care directive are not interchangeable. When it comes to making “health care decisions” for you, a person holding only your power of attorney for financial affairs is powerless to act. Of course, defining what constitutes a “health care decision” is not always so clear.

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Paying for end-of-life care and final medical expenses can be a major problem for many California residents. California does offer federal Medicaid benefits for poor and disabled residents through the state’s Medi-Cal program. But Medi-Cal has a catch: once a recipient dies, the state is legally obligated (under federal Medicaid rules) to “seek reimbursement” from the person’s estate for any benefits paid.

This means Medi-Cal can go after the property in a deceased beneficiary’s probate estate or living trust. In many cases this includes the decedent’s home. When determining the eligibility of Medi-Cal benefits over the age of 55, the value of a person’s primary residence is excluded from income calculations. But after the beneficiary dies, the house becomes fair game for Medi-Cal officials seeking reimbursement.

However, there are a number of possible exemptions that heirs of a decedent may seek in order to avoid losing assets to a Medi-Cal claim. For example, if enforcing a lien against a property “would result in substantial hardship to other dependents, heirs, or survivors” of the decedent, Medi-Cal must waive its claim. Such “hardship waivers” are not automatically granted. The affected dependent or heir must apply for a waiver, and if it is denied, he or she may seek judicial review.

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A conservatorship exists whenever a California probate court determines that a person is not capable of taking care of him or herself or managing his or her finances. In the case of an individual who suffers from a mental disorder, a court may order what is known as an LPS conservatorship if there is sufficient evidence that the person is “gravely disabled,” and “unable to provide for his or her basic personal needs for food, clothing, or shelter.” But merely having a mental illness does not, in an and of itself, justify imposing a conservatorship against a person’s will.

Court Reverses “Close Call” Conservatorship Order

A California appeals court recently addressed the type of evidence necessary to create an LPS conservatorship for an individual with a mental disorder. The subject of this case is a man suffering from schizophrenia. He had been hospitalized multiple times over the years and has been required to take psychiatric medications since he was a child.

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A major part of estate planning is deciding how you wish to address quality-of-life issues if and when you suffer a terminal illness. Under current California law, a person has the “right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.” The most common means of exercising this control is through a California Advance Health Care Directive.

While a doctor must honor your decision not to receive life-sustaining treatment, he or she may not assist you in ending your life, such as by providing prescriptions drugs designed to hasten death. Existing California law expressly disapproves of “mercy killing, assisted suicide, or euthanasia.” Indeed, a physician may be held criminally liable for assisting a patient’s death.

The End of Life Option Act

However, the law in this area is in flux. On October 5, California Gov. Jerry Brown signed the End of Life Option Act, a law permitting terminally ill patients to request a physician prescribe an “aid-in-dying drug” to enable them to die “in a humane and dignified manner.” The California legislature passed the Act during its ongoing special session to address healthcare issues. In a signing statement, Gov. Brown noted the ongoing political and ethical controversy over assisted suicide, but noted if he was dying and in extreme pain, “it would be a comfort to be able to consider the options afforded by this bill,” and he could deny the same right to other California residents.

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You often hear the term “living will” used to describe a document outlining a person’s wishes in the event they become incapacitated or are otherwise unable to communicate with medical personnel. Actually, a living will is not a will at all. A will-i.e., a last will and testament-is a document that only takes effect after your death and relates to the disposition of your property.

In California, when we speak about a “living will,” we actually refer to one part of a document known as an advance health care directive. A health care directive performs multiple functions. First, it allows you to designate a person to make health care decisions for you if you become incapacitated. This person or agent would then hold your power of attorney for health care purposes only; he or she would not have control over your property or financial affairs unless you sign a separate power of attorney for that purpose.

The second part of the advance directive is what is commonly known as the living will. This part allows you to provide instructions regarding your care. For example, you might instruct your doctors not to prolong your life through artificial means should you fall into a coma. You may also specify whether you want to receive medication to ease your pain even if it might hasten your death.

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The recent case of Jahi McMath has renewed the media and ethical debate over the question of when an individual can truly be declared deceased. McMath was a 13-year-old girl declared legally brain dead on December 12th, 2013, in Alameda County. The family contested this diagnosis, claiming she still had heart and lung function. Although an Alameda County judge confirmed the hospital’s determination that McMath was dead, the family filed a federal lawsuit, arguing this violated their religious beliefs, as protected by the First Amendment, which hold that McMath is still alive.

Defining “Legally Dead”

A majority of U.S. states, including California, have adopted the Uniform Determination of Death Act, a model law developed at the behest of the White House and the medical community in the early 1980s. California incorporated the uniform act into its Health and Safety Code. The Act defines death as either “(1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.”

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An advance directive provides your physician and other healthcare providers with instructions regarding your care in the event you are no longer able to make your wishes known. An advance directive also enables you to appoint an agent to make healthcare decisions on your behalf. It’s important you provide clear instructions to your agent so that he or she does not act in a manner contrary to your wishes.

Even healthcare providers can misunderstand the scope of an advance directive. A recent California Court of Appeals decision addressed such a case. Please note, this case is discussed here for informational purposes only.

Goldman v. Sunbridge Healthcare, LLC

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Conservatorships are often thought of in the context of a person caring for an elderly parent who is no longer capable of making his or her own decisions. But conservatorships can also involve a parent caring for a physically or developmentally disabled adult child. These situations raise complex legal questions regarding the limits of personal liberty, as proven by a July 31 decision of the California 4th District Court of Appeal in Santa Ana.

The unnamed appellant in this case is a 25-year-old developmentally disabled woman. Upon reaching her 18th birthday, a probate judge appointed the woman’s mother as her “limited conservator,” authorizing the mother to direct her daughter’s medical care. For many years, the daughter has suffered from “severe and debilitating migraine headaches” related to an irregular menstrual cycle. After a number of treatments failed to treat the migraines, an obstetrician-gynecologist recommended the daughter undergo a total hysterectomy.

Although the daughter indicated she approved of the surgery, legally should could not give “informed consent,” so her mother, as conservator, had to petition the probate court for permission to proceed with the hysterectomy. The court appointed a public defender to represent the daughter’s legal interests.

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A power of attorney is an important estate planning tool that authorizes another person to make decisions for you should you become incapable of making them yourself. A health care power of attorney is a document that specifically applies to decisions regarding your personal care, treatment and maintenance. Health care powers of attorney are especially important for residents of a nursing home or other extended care facility. In these situations, the agent designated by the power of attorney must take care to safeguard the legal rights of the individual in the event something goes wrong.

Recently, a California appeals court thwarted a nursing home’s effort to enforce a clearly invalid health care power of attorney reportedly signed a by a resident who died under the facility’s care. The case, which is only discussed here for informational purposes and should not be construed as legal advice, demonstrates how failure to follow basic California legal requirements can lead to significant problems later.

No Witness, No Notary, No Power of Attorney

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There is no easy way to deal with the physical, mental, and emotional challenges of a battle against cancer. But being fully informed about the treatment options and legal ramifications of certain medical decisions is a good start. Unfortunately, there remains a great deal of confusion regarding cancer treatments, even among patients themselves. For example, a recent national study of 1,200 patients with aggressive cancers found that many patients were confused about whether the drugs they were receiving were intended to help them deal with the effects of the cancer or actually fight the cancer itself.

Specifically, 69% of patients with advanced cancer of the lung and 81% of patients with advanced cancer of the colon mistakenly “believe that the drugs could render them cancer-free.”

Doctors suggest that more assistance is needed to discuss the prognosis with cancer patients, including someone who can help patients cope with the transition and someone who can explain advance directives.

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