Durable Power of Attorney for Health Care in California

By Joe Stone

In 2000, the California Legislature enacted amendments to the probate code that established the Advance Health Care Directive (AHCD) as the official document to use if you want to appoint someone to make health care decisions for you when you are incapacitated. The requirements for a valid AHCD are set forth in Probate Code section 4673. A durable power of attorney can be used as an AHCD, if the document meets the requirements of Probate Code section 4673.

Durable Power of Attorney for Health Care Decisions

Before 2000, California law approved the use of advance directives known as a Durable Power of Attorney for Health Care Decisions and a Natural Death Act Declaration. Such directives made prior to 2000 are still effective. Moreover, the printed forms for either directive that were valid prior to the 2000 probate code amendments are still valid, even if signed after the amendments became effective on July 1, 2000. As of October 2011, the statutory approved form for an AHCD is set forth in Probate Code section 4701.

AHCD Requirements

California law does not require the use of any particular form for a valid advance directive. The basic requirements for a valid directive include a written document with the date of execution and patient's signature that is notarized or witnessed by two qualified persons. If the patient is unable to sign the directive, it can be signed by another adult in the patient's name so long as the patient is present and instructs the other adult to sign the directive. The directive can also be signed electronically so long as the statutory requirements for a digital signature are met and it is done in the presence of a notary.

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AHCD Options

The substantive provisions of an AHCD should be prepared in consultation with a physician, a trusted adviser or someone knowledgeable regarding end-of-life health care decisions. Such provisions typically state the patient's preferences for administering or withholding particular treatment when the patient is incapacitated, comatose or unconscious and the prognosis for full recovery in doubt. The directive should also state the patient's preference for residing in a hospice, at home or in a hospital when death is approaching. A directive can also state any other matters that are important to the patient when he is dying.

Advance Health Care Directive Registry

The person appointed in an AHCD should be notified and informed of the provisions of the directive. The patient can also inform any other persons regarding the directive, including a personal physician, relatives and friends. The California Secretary of State's office also provides an AHCD registry where a patient can register his directive. The secretary's office will make a registered directive available to the patient's health care provider or other representative on a showing of need for the information. Registering with the secretary is not necessary for the directive to be valid.

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