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California law defines an advance directive for health care as a legal document that encompasses both individual health care instructions and a power of attorney for health care.
Similar to a living will, individual health care instructions allow patients—individuals who are creating advance directives for health care—to specify their preferences for medical treatments, interventions, end-of-life care, and other health care decisions.
On the other hand, as part of an advance directive, a durable power of attorney for health care (durable medical power of attorney) lets principals appoint an agent to make medical decisions if they become incapacitated and unable to make decisions themselves.
Signing Requirements for California Advance Health Care Directive
As outlined in Section 4673, the signing requirements for California advance directive vary depending on whether the advance directive is a written or electronic document:
Written Advance Health Care Directive
Date of execution. The advance directive must include its execution date.
Signature. The patient must sign the advance directive, or if signed by another adult on the patient's behalf, this must be done in the patient's presence and at the patient's direction.
Acknowledgment and witnesses. The advance directive must be either acknowledged before a notary public or signed by at least two witnesses who meet the requirements specified in Section 4674 and 4675 of the California Probate Code.
An Electronic Advance Health Care Directive
Compliance. It must meet the exact requirements of a written directive, including the date and signature requirements.
Notary public. An acknowledgment by a notary public is required for electronic documents.
Digital signature. If a digital signature is used, it must meet specific security and verification standards. This includes being unique to the signer, capable of verification, under the sole control of the signer, and linked to the data in such a way that changes to the data invalidate the signature. Additionally, the signature must persist with the document and be bound to a digital certificate.
California Advance Health Care Directive Revocation & Changing
In California, an advance health care directive becomes effective when a person is unable to make their own medical decisions due to incapacity.
On the other hand, you can revoke or change a health care advance directive in several ways:
Directive Revocation and Changes
Revoking the agent designation. If you want to revoke the designation of your California health care proxy, you can either sign a written document stating the revocation or inform your supervising health care provider personally.
Revoking the directive. To revoke all or part of the advance health care directive, simply communicate your intent to revoke it in any clear manner.
Conflicting directives. If you create a new advance directive that conflicts with an old one, the new directive takes precedence.
Marriage and divorce. A divorce or annulment automatically revokes a former spouse’s role as your agent. If you remarry the former spouse, their authority will be restored.
Additional Legal Considerations for a California Advance Health Care Directive
Under Section 4800, people who have written advance directives can register them with the Secretary of State registry system for advance health care directives by filling out a registration form. Failure to register an advance directive within the registry system doesn’t make an advance health care directive invalid.
While there is no requirement to use a specific form, Section 4701 provides a standard advance directive form. This form allows you to state your health care wishes and choose an agent, but you can also create your own document if you prefer.
According to Section 4676, advance health care directives are valid in California even if they were created in another state, as long as they follow California laws.
Section 4711 defines a surrogate as an adult designated by a patient to make health care decisions if the patient can’t decide for him or herself. This designation lasts up to 60 days or during the patient’s treatment or hospital stay, whichever is shorter, and gives the surrogate priority in decision-making over a health care agent for that period.
How to Choose a Health Care Agent in California
Choosing a health care agent in California involves selecting someone you trust to make medical decisions on your behalf if you can’t. You should look for a person who understands your health care preferences and values and who can handle difficult decisions.
Ensure they’re reliable, willing to advocate your wishes, and capable of communicating effectively with health care providers. Choosing the right person to act as a health care agent is a crucial aspect of successful advance care planning.
What Happens if You Don’t Have an Advance Directive in California?
If you have specific wishes regarding how you want your health care managed, it is vital to create an advance directive as part of your advance care planning.
Without one, decisions about your health care may not reflect your preferences and will instead be made by others, such as family members, an appointed guardian, or close friends.