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New Rules Covering
Advanced Directives
By Waldene Drake, RN, MBA Vice President,
Risk Management
and
Dan Groszkruger, JD, MPH
Consulting Editor

Q. What changes have been made to the laws governing Advance Directives?

A. On July 1, 2000, both the Natural Death Act and the Durable Power of Attorney for Health Care laws were replaced by the Health Care Decisions Law (AB 891). The key elements of the new law and changes to Advance Directives are as follows:

• The new law is intended to simplify the execution of advance directives, using pre-printed forms, and thereby encourage more individuals to state their end-of-life preferences. The new forms will be available from the California Medical Association, through CMA’s Information On-Demand Fax Service, at (800) 592-4CMA, or on-line at: www.cmanet.org.
• Patients with existing Durable Powers of Attorney for Health Care NEED NOT execute new ones. They remain valid even if executed on or after July 1, 2000. All properly executed Natural Death Act Declarations remain valid. Also, valid Emergency Medical Services Pre-Hospital Do Not Resuscitate (DNR) forms remain in effect.
• The legislature’s intent is that the courts be used only as a last resort for these decisions. In the absence of a controversy, a patient is presumed to have the capacity to make decisions about advance directives. The primary (attending) physician shall decide whether a patient has lost the capacity to make an informed choice. If so, the physician may rely upon the decisions of a legal guardian, agent or surrogate when there is no controversy or reason to question motivation.
• Surrogate health care decision makers (agents, surrogates and conservators) are bound to make decisions “in accordance with the patient’s health care instructions, if any, and other wishes to the extent known” by the agent or surrogate. Otherwise, the agent or surrogate “shall make the decision in accordance with the [agent’s/surrogate’s] determination of the patient’s best interest.” ¹ In determining the patient’s best interest, the agent or surrogate shall consider the patient’s personal values, to the extent known.
• A physician is immune from civil or criminal liability for good faith conduct when in compliance with the new Health Care Decisions Law.²

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  ¹ CA Probate Code §§ 4684, 4714.
  ² See: CA Probate Code § 4740. Immunities for physicians and healthcare providers have been broadened. Such providers are now immune from civil or criminal liability or disciplinary action for “acting in good faith and in accordance with generally accepted [and applicable] health care standards” when complying with, or refusing to comply with, a health care decision by a surrogate; and when complying with, or refusing to comply with, an advance health care directive.”