Health Care Directive in California: Law and Procedure
Updated: Jun 2
The health care directive in California is gaining importance, more than ever, with the recent outbreak of COVID-19. As per the latest figures about COVID-19 victims, California is at number 4 with around 38,000 confirmed patients. As a Californian American, it is useful for everyone to know about the law and procedure on the health care directive.
What is a Health Care Directive?
A Health care directive also known as "advance health care directive" means an individual health care instruction or a power of attorney for health care. If the directive is in the form of individual instruction, it may be oral or in writing. However, if it is in the form of a power of attorney then it must be in writing signed by two witnesses.
What is the law on Health Care Directive?
The law that covers the advance health care directive in California is Division 4.7 of the California Code. The law as mentioned in the Code deals with the eligibility, procedure, and extent of healthcare directives. There are three options for a person for making decisions about his healthcare. A person can either make the decisions himself or can appoint someone as his agent for that purpose. The third option for a person is to have decision making power for himself and the agent, both.
Who Can Write a Health Care Directive?
Every adult having capacity can give individual healthcare instruction in writing or verbally. Capacity here means a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision. It also includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives. This means that a person or his agent has to make decisions about the health care of a patient when he is not in a position to make such decisions. The instructions are not absolute and a person may specify certain situations in which the instructions will be applicable.
What are Health Care Decisions?
Before moving on, it is important to know what actually the health care decisions are. The law gives a person the right to make decisions or to appoint an agent for decisions related to:
(a) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
(b) Select or discharge health care providers and institutions.
(c) Approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
(d) Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(e) Donate the organs, tissues, and parts, authorize an autopsy and direct disposition of remains.
Is there any Specific Form for the Directive?
The law allows a person to write and advance health care directive to use any form for authorizing health care decisions. However, California Probate Code Section 4701 provides a statutory advance health care form for reference. This form may be used for individual instruction, power of attorney, or both, at the option of the person making it.
Who Can be a Health Care Agent?
Any adult having the legal capacity to act as an agent may be appointed through a power of attorney. However, by law, the following person cannot act as an agent for health care decisions unless they are related to the patient or are coworkers:
(1) The patient’s health care provider or an employee of such health care provider;
(2) The operator or an employee of a community care facility;
(3) The operator or an employee of a residential care facility for the elderly.
Limitations on Power of Attorney
Since the advance health care directive in the form of power of attorney is a principal-agent relationship, it's not absolute. The principal has all the rights to impose limitations and restrictions on the authority of the agent, at his/her sweet will. In addition, the principal has the right to modify/revoke the full or partial authority of the agent.
How to Prepare a Power of Attorney?
A power of attorney may be made on the statutory form mentioned above or in any other form. Once the preparation of the power of attorney is complete, the person making it must sign or authorize signatures on his behalf.
The advance health care directive will be valid if the patient or another adult in the patient's name signs it. Such a signature must be in the presence and on the instructions of the patient. Further, it must have a date and signatures of witnesses or have acknowledgment before a notary public.
Witnesses or Notarization
In addition, this power of attorney document must have signatures of two witnesses. However, in the case of acknowledgment before a notary public, there is no need for witnesses. If the document is witnessed, one of the two witnesses must be an individual who is not related to the patient by blood, marriage, or adoption. Further, such a person must not be entitled to any portion of the patient’s estate upon the patient’s death. under an existing will or by operation of law.
Most importantly, a person who is not qualified to be an agent can also not sign the power of attorney as a witness. Further, in case of power of attorney, an agent cannot be a witness.
How to Revoke Health Care Directive?
Under the law, if a person has made an advance health care directive, he has also a right to revoke it, fully or partially. A person may revoke individual instruction in any manner that conveys intent to revoke. However, in case of the power of attorney, he may revoke the directive in the form of signed writing or by personally informing the supervising health care provider.
Besides, the power of attorney stands revoked if the principal’s marriage to the agent is dissolved or annulled. However, it may revive in case of remarriage.
The Healthcare Directive in California is a tool for an in advance communication by a person about his health care treatment. He can communicate the instructions himself or can appoint an agent for that purpose. In addition, a person has full control of the treatment of his body after his death.