April 21, 2005

Devries Column

Suggestions for your Advance Care Directive (Part 2)

In case you missed it, Part 1 of this topic concerned the need for us to have an Advance Health Care Directive (“Advance Directive” for short) in order to avoid a dilemma like the Teri Schiavo case. Ms. Schiavo was the woman in Florida who was kept alive with a feeding tube for 15 years or so while her husband and parents were involved in bitter court litigation.

That article, in the April 8-14, 2005 of the Almaden Times Weekly, focused on where to find Advance Directive forms to express your wishes concerning life support and related issues.

This article will focus on suggested contents of that document and various options you may want to consider—while your mind is clear and you have your full mental capacity—so that your wishes and directions are carried out concerning end-of-life decisions.

One of the most important decisions is the selection of an “agent” for health care, a person to make key decisions when you are not able to do so. It’s up to you as to the identity of that person. In the Terri Schiavo case, there was an obvious difference in the interpretation of Terri’s wishes on behalf of the husband as compared with Terri’s parents and siblings when it came to the question of removing the feeding tube.

In addition to your named agent, you might also want to have an alternate agent just in case. A good agent, often a close family member, is one who is willing to speak on your behalf, lives close by, or could travel to your side relatively quickly.

Your agent should know you well, understand what you want, and be able to handle the responsibility. It would also be helpful if that person will likely be available into the future, would be able to handle conflicts of opinion among other family and friends, and capable of being a strong advocate in the face of an unresponsive or uncooperative doctor or institution.

Contents of your Advance Directive may well include your directions as to when to stop life support and what to do if you are in severe pain or on a feeding tube to keep you alive, as in the Terri Schiavo case.

You may also want to specify that your organs can be used for donation. Although this may be a sensitive subject for some people, a family friend of mine, a young man, is alive and well today because of a donated liver and pancreas. (The DVM also provides a sticker for the back of your driver’s license that authorizes organ donations.)

It is also possible for you to specify your directions about the disposition of your remains, funeral or memorial arrangements, and similar issues.

For additional contents of your Advance Directive, you may want to review the “Statutory Advance Health Care Directive Form” found in Probate Code §4701. Log onto www.findlaw.com and head for California statutes. Then look for Probate. There is a complete form there, approved by the California Legislature. It may be a bit minimal when compared with your attorney-drafted Advance Directive, but it is far better than nothing.

After your Advance Health Care Directive is properly signed, you will want to review it every few years and upon major life changes, such as death of a spouse, divorce, or remarriage, as well as on other major changes, such as diagnosis with serious disease or terminal illness. You will also want to review it and update it if necessary if you lose the ability to live independently.

You will want to have the original document ready in a safe place, but not necessarily in a safe deposit box, since it must be readily accessible. A copy should be given to your agent, alternate agent and doctors, as well as to your health care facility and before undergoing any major diagnostic tests. It’s a good idea too to keep a copy in the glove compartment of your car.

If you have any questions about this very important document, be sure to consult with your own attorney at any time.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Visit his Web site at www.almadenvalleylawyers.com to view Almaden Times columns since 1986. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.