2016 has already brought the loss of two giants in their
fields, David Bowie and Antonin Scalia.
As in life, their deaths were observed in completely different
manners. One of them requested direct
cremation with no public memorial, service, or observation, while the other had
a massive public viewing and a high mass funeral. Interestingly, in death these two individuals
exchanged their lifetime public personas.
Bowie opted to allow the release of his last album to be his parting
public engagement, while Justice Scalia lay in state while processions filed
past him to pay their respects and his priest son conducted his funeral in
Washington D.C.’s most visible Catholic Church.
So what did these two very disparate individuals have in
common? Aside from their enormous public
statures, they directed what would occur when they died. Had they not done so, presumably their loved
ones would have done what they thought best and hoped that the decedent would
approve and appreciate.
But is that fair to the ones left behind? Shouldn’t our loved ones, in their darkest
hour of grief, know with certainty what we want? And shouldn’t we, as our final
gift, leave instruction to those whom we know will carry out our wishes?
It may surprise some to learn that in California, it is not
one’s will that conveys our final wishes, but rather a document known as an
Advance Health Care Directive. This is a super important document that everyone
over the age of 18 should have. Not only
does it allow you to direct your final burial instructions, but it also
appoints who should oversee the final disposition arrangements, including organ
donation, whether or not an autopsy can be performed, and even the choice of
physician.
Most importantly, it contains the directives as to whether
you want life prolonging measures to be taken, or the “right to die” provisions
allowing your appointee to request that no heroic measures be taken if there will be no significantly measurable
quality of life. Wherever you stand on
the issue, isn’t it important to convey that to your loved ones?
The most prominent legal cases that deal with the right to
die, center around young women, several of whom were pregnant. In one New York case, the husband was
required to allow his wife to remain on life support until the fetus was
viable. In another famous German case, the pregnant mother’s parents were able
to convince the court to stop the termination of life support until the fetus
was viable. The issue is not whether the
courts were right or wrong, or the grandparents, or (as in the New York case,
total strangers), were wrong to take to the courts, but whether or not the results
were what the mother would have wanted. If so, wouldn’t it have been easier and
certainly cheaper if the mother had completed a directive so that everyone in
the family and hospital would have known what to do?
Aside from the issue of the right to die, the Advance Health
Care Directive also allows you to appoint the person or persons that you wish
to make your medical decisions if you are unable to make those decisions for yourself.
The document meets the federal privacy law (HIPAA) standards thereby allowing
your health care providers to discuss your case with your appointee. Without such written authorization, the
health care providers are barred by law from discussing your case with anyone.
Sometimes people mistakenly think that only “old” people,
near death, should have one of these documents.
Nothing could be further from the truth.
Once a person turns 18, they are an adult and the federal (HIPAA) laws
prohibit doctors, hospitals, and other health care providers from discussing an
individual’s medical condition with any third party without express written
authorization to do so. Thus, if your 19
year old college student is in an accident, you will be without legal authority
to discuss his condition with the doctor or hospital, much less make any of his
medical decisions even if he is unable to do that for himself.
You don’t have to be famous or a legal scholar to direct
what happens to you in the event of serious illness or death, but you do have
to take action. Your lawyer can provide
you with an Advance Directive For Health Care and they are also available on
the California Attorney General’s website.
