Just over a decade ago, the phrase “end of life counseling” became controversial in many quarters across the United States. The phrase “end of life counseling” was included within the Affordable Care Act, also known as Obamacare. As a result, the phrase became a target of proponents and opponents of the ACA. Ultimately, the concept and practice of end of life counseling became muddied and distorted as a result of the political process associated with the passage of the ACA into law. 

Basic Definition of End of Life Counseling

At its essence, end of life counseling provides you an opportunity to understand what options are available to you when it comes to your medical, hospice, palliative care, as well as other treatments, procedures and resources at the end of your life. End of life counseling typically involves a person’s primary care physician. Other professionals can be involved in the counseling process as well, including hospice directors, mental health professionals, clergy members and others.

It is important to underscore that, properly undertaken, no professional involved in the grief counseling process makes decisions or even recommendations for a person seeking end of life counseling. These professionals are charged with providing crucial, vital information about matters associated with end of life issues. 

In the final analysis, end of life counseling doesn’t involve shortening the life of an individual. Rather, it is designed to remove impediments from the natural death process within parameters permitted by law and according to the specific, informed wishes of an individual. 

What End of Life Counseling Is Not

As a result of end of life counseling being injected into the political arena, a considerable amount of confusion has existed and remains today about what this process is all about. A decade ago during the initial debate over the ACA, end of life counseling became associated with the widely and wildly used phrase “death panels.” The matter of so-called death panels is a discussion for another day. The purpose of this article is not to ponder politically but to provide you meaningful, accurate information about end of life counseling. On some level, end of life counseling might better be labeled medical and legal education to aid in personal end of life decision making. 

The most important fact to bear in mind about end of life counseling is that it isn’t designed to provide people with strategies to hasten their ultimate demise. Moreover, properly undertaken, end of life counseling is not a process that involves healthcare professionals and others advocating for certain end of life related decisions. Rather, comprehensive end of life counseling is designed to provide information and to support the unique, lawful decisions an individual makes about his or her own end of life objectives, needs, and desires.

Ultimately, the result of end of life counseling is that a person develops a meaningful advanced healthcare directive that in California consists of two components that commonly are known as a:

  • Durable power of attorney for healthcare
  • Living will 

Importance of a California Advance Healthcare Directive

As is the case in many states, California has a comprehensive instrument that includes what would otherwise be an independent living will and durable power of attorney for healthcare. In the Golden State, this omnibus instrument is known as an advance healthcare directive. The standard California advance healthcare directive can be downloaded for your use here

The living will component of an advance directive delineates what limitations you might desire on extraordinary procedures to be used if you are unable to make these decisions for yourself. There is no element in a living will that calls for the affirmative hastening of death. Rather, a living will addresses the prospect of not using certain extraordinary procedures in an attempt to extend life when the quality of life at that juncture would be limited. A living will specifically identify desired and delineated circumstances that will not be used so that the natural course of death can be permitted to proceed. 

The durable power of attorney for health care element of a California advance care directive allows a person the ability to appoint a trusted family member or friend to make healthcare decisions when the creator of such a directive is unable to do so on his or her own. The person so designated carries out an incapacitated person’s desires as set forth in the companion living will component of the advance directive. The designated agent is capable of making other medical and healthcare decisions as well, constrained by the parameters established in the living will element of the directive. 

Overview of the California Natural Death Act

The state of California codified what is and is not permissible in regard to the parameters of a living will and associated end of life counseling. The law is known as the California Natural Death Act and provides that any medical intervention, treatment, or procedure designed only to prolong the process of dying does not have to be utilized if a person is in irreversible coma or a persistent vegetative state. This does not include treatment designed to provide comfort or alleviate pain. If a living will was created prior to the person becoming incapacitated, seven criteria must be satisfied:

  • Person was in sound mind at the time the living will was created
  • Individual was at least 18 years old
  • Individual personally signed the instrument
  • Two people witnessed the execution of the instrument
  • Instrument needs to be the California form or substantially similar to it
  • Instrument becomes operative when two physicians certify the individual is in a terminal state
  • Instrument is not effective while a person is pregnant

In the final analysis, all adults are wise to embark on their own course of end of life planning. Availing themselves of end of life counseling – education – can prove to be a helpful part of the overall planning process.