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"Cruzan," "Living Wills," and durable powers of attorney for health care

Question

I have followed the Cruzan case in the media – the case about the Missouri woman who had been kept alive in a vegetative state for eight years. How can we in California avoid this?

Christine M.
Almaden Valley

Dear Christine:

We Californians are a bit more fortunate than citizens of some other states—but only if we make our wishes known about our own healthcare decisions before a crisis arises. Important California cases have recognized the right of the patient's family, or someone acting on behalf of the family, to withdraw life-sustaining treatment in certain circumstances.

Therefore, if necessary, the family might be able to obtain a court order authorizing the withdrawal of life-sustaining measures. This requires, however, considerable expense and one is never certain about the outcome of any litigation.

A much preferable way of dealing with the crisis ahead of time is by the signing of a Durable Power of Attorney for Healthcare, which is available to all Californians. These documents are governed by California Civil Code §2430 et. seq.

A Durable Power of Attorney for Healthcare is an extremely important legal document. In it, you can specify the name of your healthcare agent, who will serve as your attorney-in-fact to make healthcare decisions for you as authorized in the document. You can specify your desires, special provisions, or limitations in as much detail as you wish. You can also specify an alternative agent and even a second alternative agent to exercise health decisions for you.

Of course, while you are still healthy the Durable Power of Attorney for Healthcare may be changed at any time. It is valid for seven years unless you are unable to sign a new Durable Power of Attorney for Healthcare because of incapacity.

You may wish to have a Durable Power of Attorney for Healthcare prepared in your attorney's office to achieve maximum flexibility and true expression of your intent, or you may wish to obtain a standard preprinted Durable Power of Attorney for Healthcare form through the California Medical Association or from your family physician.

I personally prefer the Durable Power of Attorney for Healthcare over the so-called "living will." One of the problems with "living wills" is that they are sometimes obtained from national organizations and may have no legal force in California. In California, we do have a "directive to physicians" (Health and Safety Code §7188), sometimes called a "living will." This is a short form and is at best binding only on the attending physician and only in very limited circumstances. I personally believe the Durable Power of Attorney for Healthcare is a much, much better document.

You should consult with your family attorney about these documents and have your wishes made known in writing. If you do, chances are you will reduce, if not eliminate many of the questions that were involved in the Cruzan case and others like it.

Best wishes, Christine, in your decision. Although this is not a very exciting topic, you should be commended for tackling the problem.