Medical power of attorney in California: how to sign one

The question underneath a medical power of attorney is simple. If you can't speak for yourself, who talks to the doctor?

In California, you answer it with one document, the Advance Health Care Directive. This page covers how it works, how to sign it so it holds up, and what happens if you never fill one out. It is one of our state-by-state estate planning guides. For the general idea behind the role, see what a medical power of attorney is.

What is California's Advance Health Care Directive?

It is California's name for the document most people call a medical power of attorney. The part that names your decision-maker is called a "power of attorney for health care." The person you name is your agent.

The same form also holds your written wishes. California has no separate living will. End-of-life wishes are written as "individual health care instructions," and they sit in Part 2 of the statutory directive form (Prob. Code 4701). You can also give an instruction orally or in writing while you have capacity (Prob. Code 4670).

So one document does two jobs: it names your agent, and it tells your agent what you'd want. Our post on health care power of attorney vs living will explains why both jobs matter.

The statutory form is optional. The statute itself says you are free to use a different form (Prob. Code 4701).

How do I sign it?

The directive must be dated and signed by you. Another adult can sign for you, in your presence and at your direction. Then it must be either notarized or signed by two adult witnesses (Prob. Code 4673).

The witness rules are strict, so read them before you pick (Prob. Code 4674). These people can't be witnesses:

• Your health care provider, or the provider's employee.
• The operator or an employee of a community care facility.
• The operator or an employee of a residential care facility for the elderly.
• The agent you are naming.

And at least one of the two witnesses must be neither related to you by blood, marriage or adoption, nor entitled to inherit from you under a will or by law.

Two more rules apply in special cases. If you live in a skilled nursing facility, a patient advocate or ombudsman must sign as a witness, either as one of the two or in addition to a notary (Prob. Code 4675). And an electronic directive is allowed, but then it needs a notary (Prob. Code 4673).

Using a notary sidesteps most of the witness puzzle. The nursing facility ombudsman rule still applies.

What can my health care agent do?

Your agent makes the health care decisions you would make if you could, guided by the instructions you wrote in Part 2. The clearer those instructions, the less your agent has to guess. That makes your agent a fiduciary: legally required to act in your interest and follow what you wrote.

The role can reach past your last day, too. A health care agent can be given authority to direct what happens to your remains (Prob. Code 4683). An agent with that right ranks first in California's funeral decision list, ahead of a spouse or children (Health and Safety Code 7100). Our post on funeral wishes covers what to write down.

A medical agent doesn't handle money. Paying the bills takes a separate document, covered in our guide to power of attorney in California. For how both kinds of power of attorney fit together, start there.

Who decides if I haven't named anyone?

California works differently from many states here. There is no fixed ranking of relatives.

First, the law looks for a "legally recognized health care decisionmaker" (Prob. Code 4711):

1. A surrogate you named out loud to your supervising doctor. This lasts only for the current illness or stay, or 60 days, whichever is shorter.
2. The agent in your Advance Health Care Directive.
3. A conservator or guardian with health care authority.

If none of those exist, the doctor or facility "may choose a surrogate" (Prob. Code 4712). The surrogate must be an adult who has shown special care and concern for you, knows your values, and is reasonably available and willing. The surrogate may be chosen from your spouse or domestic partner, an adult child, a parent, an adult sibling, an adult grandchild, or an adult relative or close personal friend.

The statute doesn't make that list a strict ranking. A close friend can serve on the same footing as a relative if they meet the special care and concern test. This version of the law took effect January 1, 2023.

Once chosen, the surrogate must follow your known wishes, or otherwise your best interest (Prob. Code 4714). And while you have capacity, you can rule anyone out, family included. You do it in a signed writing or by telling your supervising doctor (Prob. Code 4715).

This flexibility helps when your closest person isn't a relative. But it leaves the choice to a doctor you may never have met. Naming an agent puts the choice back with you. Our post on medical decisions without a power of attorney shows how other states handle it, and the 50-state guide to default decision-makers compares them all.

Who should I name?

Pick someone who will pick up the phone, get to the hospital and follow your wishes even when they'd choose differently. Our post on how to choose a medical power of attorney has nine questions to ask.

Here is a typical case, a composite. Linda is 72, widowed, and lives in San Diego. Her daughter is in Chicago. Linda names her neighbor Pat, who walks Linda's dog on weekday afternoons, as her health care agent, and her daughter as backup. She has the directive notarized at her bank.

When Linda is admitted after a fall, Pat is there within the hour and calls Linda's daughter after each talk with the doctor.

Some people would like a professional standing by. A Kinly membership includes a medical power of attorney written for California, and Trella Trust Company can be named in the role, first or behind a friend or relative.

For what happens to your estate after death, see our guide to California probate and small estates.

Common questions

Does a California Advance Health Care Directive need to be notarized?

No. It can be notarized or signed by two qualified adult witnesses. An electronic directive must be notarized. If you live in a skilled nursing facility, a patient advocate or ombudsman must also sign.

Can a family member witness my Advance Health Care Directive?

One of your two witnesses can be a relative, as long as they aren't your agent or your health care provider. At least one witness must be unrelated to you and not entitled to inherit from you.

Does my spouse automatically make medical decisions for me in California?

No. If you haven't named an agent or a surrogate, the doctor may choose a surrogate from a list that includes a spouse, adult children, other relatives and close friends. The list isn't a strict ranking. The person must have shown special care and concern for you.

Can I name someone just by telling my doctor?

Yes, for a short time. You can tell your supervising doctor who should decide for you. That choice lasts for the current illness or stay, or 60 days, whichever is shorter. For anything longer, sign an Advance Health Care Directive.

Is there a separate living will in California?

No. Your end-of-life wishes go in the same Advance Health Care Directive, as individual health care instructions in Part 2 of the statutory form.

Sources

• Cal. Prob. Code 4670: Individual health care instructions (California Legislative Information)
• Cal. Prob. Code 4673: Signing requirements (California Legislative Information)
• Cal. Prob. Code 4674: Witness requirements (California Legislative Information)
• Cal. Prob. Code 4675: Skilled nursing facility residents (California Legislative Information)
• Cal. Prob. Code 4683: Scope of agent's authority (California Legislative Information)
• Cal. Prob. Code 4701: Statutory Advance Health Care Directive form (California Legislative Information)
• Cal. Prob. Code 4711: Legally recognized health care decisionmakers (California Legislative Information)
• Cal. Prob. Code 4712: Choosing a surrogate (California Legislative Information)
• Cal. Prob. Code 4714: Surrogate's standard for decisions (California Legislative Information)
• Cal. Prob. Code 4715: Disqualifying a surrogate (California Legislative Information)
• Cal. Health and Safety Code 7100: Right to control disposition of remains (California Legislative Information)