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Matthew Hart column logoBy Matthew M. Hart, Esq.

Last month I talked about the Advance Health Care Directive (AHD).  Specifically I spoke about the role of the spouse in making medical decisions.  Assuming the spouse is able to make the decision, or wants to make the decision, all is usually fine.  However, when the spouse does not want to make health decisions, or more commonly cannot make health decisions for the sick spouse, who will make the decision?

When speaking with married couples, they sometimes forget someone is going to die first therefore having backup agents is critical.  The next logical choice for most families is to appoint the children as backup agents after the spouse to make the health decisions.

Most clients have the first thought that all of the children should be co-agents or in layman’s terms, they will make the decision together.  I usually advise against co-agents for the following reasons:

Generally speaking, a doctor will talk with all of the children present (if the spouse is unavailable) to see what course of action should be taken medically.  If the family agrees to the course of action everything is fine.  If the family does not agree, then the doctor will be looking to the AHD to see who will be the final word.  If the AHD says that all children equally will be the final word, then the AHD is pretty much useless and the next step is to go into court and get a judge’s final word.  Whereas if the AHD has a primary agent and backup agents then there is a final word if the children cannot agree.

Next month I will talk about non-family members as agents.

Matthew Hart is a California Licensed Attorney who is an Estate Planning, Trust & Probate Law Specialist certified by the State Bar of California.  He can be reached at 925-754-2000 or www.MatthewHartLaw.com and he has offices in Antioch and Walnut Creek.

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