California Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   California does not issue a separate Medical Power of Attorney form. What you are signing is Part 1 of the combined Advance Health Care Directive, and it works by letting you name a trusted adult, your agent, to make health care decisions for you if you ever cannot make them yourself.

2. 2

   By default, your agent's authority begins only after your primary physician determines you cannot make your own health care decisions (Probate Code Section 4682), but you can mark the document to make your agent's authority begin immediately instead.

3. 3

   Unless you limit it, your agent can make any health care decision you could make yourself, including decisions about life-sustaining treatment, and can also make anatomical gift, autopsy, and remains-disposition decisions after your death.

4. 4

   Your supervising health care provider, or an employee of the facility where you are receiving care, generally cannot be your agent, unless that person is your relative, your registered domestic partner, or a coworker at the same facility (Section 4659).

5. 5

   You can sign before a notary public or in front of two qualified witnesses. If you are a resident of a skilled nursing facility, a patient advocate or ombudsman must also witness the document, even if it is notarized.

6. 6

   You can revoke your agent's designation at any time you have capacity, but only by a signed writing or by personally telling your supervising health care provider. Simply telling a family member is not enough.

7. 7

   No agent can ever consent, on your behalf, to your commitment to a mental health facility, convulsive treatment, psychosurgery, sterilization, or abortion, no matter what your document says (Section 4652).

8. 8

   California runs a voluntary Advance Health Care Directive registry through the Secretary of State, but filing with it is optional and has no effect on whether your document is valid.

9. 9

   This is a different document from California's general Power of Attorney (Probate Code Division 4.5), which covers property and money and, by its own printed notice, does not authorize anyone to make health care decisions for you.

California Requirements for Healthcare Power of Attorney

• Designation of Agent (California Probate Code Section 4701)

  The principal designates a primary health care agent, with full name and contact information, using Part 1 of the statutory Advance Health Care Directive form (Probate Code Section 4701); the form also lets the principal name one or more alternate agents who serve if the primary agent is unwilling, unable, or not reasonably available.

• Alternate Agents (California Probate Code Section 4701)

  The statutory form lets the principal designate at least one alternate agent to serve if the primary agent is unwilling, unable, or unavailable to act, with each alternate identified by contact information.

• Agent Authority Commencement (California Probate Code Section 4682)

  Unless the principal states otherwise, the agent's authority becomes effective only on a determination that the principal lacks capacity, and ceases if the principal later regains capacity (Probate Code Section 4682). This is a default rule, not a mandatory one: the statutory form lets the principal instead mark an election making the agent's authority effective immediately upon signing, while still competent.

• Agent Powers (California Probate Code Section 4683)

  Subject to any limitations the principal states, the agent may make any health care decision the principal could make personally, including consenting to, withholding, or withdrawing treatment, and directing artificial nutrition, hydration, and cardiopulmonary resuscitation (Section 4683(a)). The agent may also make decisions effective after the principal's death: anatomical gifts under the Uniform Anatomical Gift Act, authorizing an autopsy, and directing disposition of remains (Section 4683(b)).

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the directive is in effect.

• End-of-Life Decisions (California Probate Code Section 4701)

  Part 2 of the statutory form lets the principal choose, in advance, between prolonging life within generally accepted health care standards or not prolonging life if an incurable and irreversible condition, permanent unconsciousness, or an unfavorable risk-benefit balance applies; the agent's authority under Part 1 to make end-of-life decisions on the principal's behalf independently derives from Section 4683(a).

• Organ Donation (California Health and Safety Code Sections 7150-7151.40)

  The Uniform Anatomical Gift Act governs the agent's post-death authority to make anatomical-gift decisions under Probate Code Section 4683(b)(1).

• Mental Health Treatment Decisions (California Probate Code Section 4652)

  No agent, regardless of how the document is written, may consent on the principal's behalf to commitment to or placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization, or abortion (Probate Code Section 4652). This is a fixed statutory exclusion, not something the principal can grant by specifying it in the document.

• Nomination of Conservator (California Probate Code Section 4672)

  The advance health care directive may include the principal's nomination of a conservator of the person or estate, for a court's consideration if conservatorship proceedings are later commenced, typically nominating the same person as the health care agent.

• Witness Requirements (California Probate Code Sections 4673, 4674)

  The principal signs before at least two qualified adult witnesses, or alternatively has the signature acknowledged before a notary public, with no witnesses required in that case (Section 4673). Neither witness may be the agent, the principal's health care provider or that provider's employee, or the operator or employee of a community care facility or residential care facility for the elderly; at least one witness must additionally be unrelated to the principal and not entitled to any part of the principal's estate (Section 4674).

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Health care facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a power of attorney for health care.

• Revocation Provisions (California Probate Code Section 4695)

  A principal with capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider (Section 4695(a)); this is a stricter rule than the one for revoking the separate treatment instructions. A provider informed of a revocation must promptly notify the agent and any other known current providers (Section 4696).

• Anatomical Gift Act Compliance (California Health and Safety Code Sections 7150-7151.40)

  The Uniform Anatomical Gift Act governs organ, tissue, and body donation, consistent with the agent's post-death authority under Probate Code Section 4683(b)(1).

• Nursing Home Admission Authority (California Probate Code Section 4671(b))

  The principal may grant the agent authority over the principal's personal care, including determining where the principal will live, which covers nursing-home or long-term-care admission and placement decisions (Probate Code Section 4671(b)).

• Statutory Form Compliance (California Probate Code Section 4701)

  Use of the statutory form is optional, not mandatory (Section 4700), but the document should substantially comply with California's combined statutory Advance Health Care Directive form to ensure recognition by health care providers.