Essential Facts About Advance Directives For Testators
An advanced directive is a legal document which allows a testator to express their wishes in regards to health care decisions. This advanced directive only goes into effect when the individual becomes incapacitated or too ill to make decisions on their own.
The directive ensures they receive the level of care they want (including no more than what they want).
Anyone considering an advance directive must speak with an attorney that offers estate planning in San Diego. These documents are highly complex and cover many laws. Without proper drafting, the document could be considered void by the courts if a discrepancy or argument over its validity arises.
The Definition Of An Advanced Directive
The advanced directive is a legal document that provides instructions to medical professionals. It gives family members peace of mind as well, knowing that they do not have to guess what their loved one would have wished for regarding care.
The Two Types Of Advance Directives
There exist two main variations of advance directives, which may change depending on the state. In general, these include the power of attorney and the living will. Some states will combine both documents to generate an advance health care directive.
What Is The Living Will?
A living will is a health care declaration that is separate from one’s last will. It will direct the medical professional as to the type of care that the individual desires if they are unable to make medical decisions on their own. Some issues that the living will can address include the use of CPR, artificial life-sustaining equipment, and organ donation.
What Is The Health Care Power Of Attorney?
The health care power of attorney, also referred to as a medical power of attorney, allows a person to nominate an individual of their choosing to oversee all health care decisions if they become incapacitated.
The individual named in the document is often referred to as the “attorney of fact,” but they do not have to be an attorney. This health care proxy or agent is obligated by law (regardless of state) to follow the wishes directed to them in the healthcare power of attorney. They may not override the wishes of the individual, regardless if they disagree.
If there are instances where items are not covered in the health care directive, then a power of attorney can make decisions based on what they know about the individual.
State-Specific Laws And Advanced Directives
The laws for advance directives are complex. Estate planning in San Diego will address these laws based on what California statutes dictate. An advance directive should always be created in the state of the individual’s residence to ensure it addresses all applicable estate planning statutes.
When engaging in estate planning in San Diego, it is important for individuals to know that the advance directive (regardless of form) will go into effect only when the person is incapacitated. If they become mentally capable of making their own decisions, the document is no longer in effect.
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