Hey Kids, Let’s Have An Advance Health Care Directive


By Jeffrey K. Eisen

The recent death of Hollywood legend Mickey Rooney immediately was followed by a fight over the disposition of his remains. While Mr. Rooney’s body remained at a funeral home, various factions within his family fought for the right to determine where and how he would be buried. Fortunately for the dignity of Mr. Rooney, the fight was settled quickly, before a court could decide the matter.

This raises a point we make to our clients routinely about the importance of having an Advance Health Care Directive as part of a well-drafted estate plan. Most clients refer to this document as a “living will,” but in California it is known as an Advance Health Care Directive. Clients usually are familiar with the main purposes behind the Advance Health Care Directive—the ability to choose someone to make your medical decisions for you when you are no longer able to do so for yourself, and to express your wishes regarding “end of life” decisions (more commonly referred to as “pulling the plug,” or not doing so).

However, under California law, the agent you name under your Advance Health Care Directive has the authority to make three post-mortem decisions for you: to authorize an autopsy, to donate your organs and to determine the disposition of your remains. The named agent has top priority to make these decisions, above any spouse or child not named as agent, no matter how loudly they protest in the media. The statutory Advance Health Care Directive has places for you to express your wishes in this regard, which the agent is bound to carry out. But if you don’t specify wishes, the agent determines what to do.

None of the news stories I saw regarding the dispute over Mickey Rooney’s body made any mention of an Advance Health Care Directive. If Mr. Rooney had one, the person he named would have had the ability to bury or cremate him, and to determine where such remains would be interred. Any challengers to that authority would have had a very steep mountain to climb to try to override the authority of the agent under the Advance Health Care Directive, and I believe that challenge would not have been successful.

Therefore, when creating or updating your estate plan, be sure to include the execution of a new or updated Advance Health Care Directive, to make sure your post-mortem wishes are implemented, as well as your health care and “end of life” wishes.

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