Advance Healthcare Planning
Advance Directive California
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Advance Directive California

By 

Jennifer Mcgee

Head of Legal at TrulyWill

When a person chooses to make a Living Will, along with the Medical POA, these two legal documents become an Advance Directive. 

An Advance Directive may include your sign, names of witnesses, their signatures, etc in adherence to your state’s requirements. Every state has different requirements to be followed. Some states ask for witnesses and notaries, others look for different criteria to be followed. 

Likewise, some states consider Living Will and Advance Directive as different and separate documents, whereas others consider both documents the same. In some states, Living Will and Advance Directive are used interchangeably. 

In this article, you will get a complete guide for making an Advance Directive for Healthcare in California.  

TABLE OF CONTENTS

  1. Legal Requirements for a valid Advance Directive
  2. Who can be your witnesses in the California Advance Directive?
  3. Who can be your Proxy in the California Advance Directive?
  4. Sections of the California Advance Directive Form
  5. Notarization required for California Advance Directive?
  6. When does an Advance Directive come into effect in California?
  7. How can an Advance Directive be revoked?
  8. How to amend or change an Advance Directive?
  9. California rules for divorce after making your Advance Directive
  10. How can TrulyWill help?

Legal Requirements for a valid Advance Directive

  • Written by the grantor (maker of Advance Directive): Yes
  • Grantor must be:
  • Above the age of 18 years: Yes/emancipated minor
  • Sound mind and memory: Yes
  • Signed by the grantor: Yes/by any adult on the grantor’s behalf
  • Signed by Proxy/Agent: Yes
  • Proxy/agent accepts his role in writing: Yes
  • Witness required: Yes
  • Number of witnesses: 2
  • Signed by the witnesses: Yes
  • Number of documents required: 1 
  • Other names for a Living Will: Instructions for Healthcare
  • Other names for a Healthcare Power of attorney: Power of attorney for healthcare
  • Proxy can decide on mental health issues: No

Who can be your witnesses in the California Advance Directive?

Anyone can be your witness in California if

  • He is an adult i.e., above 18 years of age, &
  • He is a sound-minded person which means that he can understand the consequences of making an Advance Directive and the laws applied to it.

Note: Your witnesses cannot be: 

  • Your healthcare proxy/agent,
  • your supervising health care provider/ his employer,
  • Related to you by blood, adoption, or marriage (at least one witness),
  • Entitled to a share in the estate on your death (at least one witness),
  • the operator or an employee of a community care facility, 
  • the operator or an employee of a residential care facility for the elderly, 

At the time of writing the Advance Directive at least one witness must be a patient advocate or ombudsman when you are a patient in a skilled nursing facility.

Note: California state laws require the witnesses to sign the form and give in writing their declaration or you can give an acknowledgment before the public notary. 

Who can be your Proxy in the California Advance Directive?

Anyone can be your Proxy/Agent in California if

  • He is an adult i.e., above 18 years of age, &
  • He is a sound-minded person which means that he can understand the consequences of making an Advance Directive and the laws applied to it.

Who cannot be your Proxy/Agent:

  • your supervising health care provider, 
  •  if you are receiving care at a community care facility/residential care facility then its operator or its employee.
  •  if you are receiving care  at a health care institution then its employee.

Unless: 

  • the employee is related to you by blood, marriage, or adoption, 
  • the employee is your registered domestic partner, or 
  • the employee is your coworker at the facility or institution.

Other than the above legal requirements, the Proxy/Agent should be:

  • Trustable to adhere to your wishes and intentions.
  • Trustable to defend you if there’s any disagreement about your medical care.
  • He wanted to be your Attorney in Fact of his own free will to take care of your health affairs.
  •  He should not be your doctor or one of the caretakers.

Note: You can appoint an Alternate Proxy as well. The alternative Proxy/Agent will step in if the first person you name as a proxy is unable, unwilling, or unavailable to act for you or if you decide to revoke his authority.

A certificate stating that you have been advised of your rights would be signed by your lawyer if you want your conservator (appointed under the Lanterman-Petris-Short Act) to be your agent, as well. Or you may mention in your advance directive a nomination for the individual appointed as your conservator, if necessary. The court will consider your nomination in any protective proceeding.

Notarization required for California Advance Directive?

You can either get an Advance Directive executed by signing the form in presence of the witnesses or get your signature notarized by signing an acknowledgment in front of the public notary.

The state of California maintains California Advance Directive Registry. Your healthcare providers and loved ones would easily find a copy of your directive if you file your advance directive with the registry.

When does an Advance Directive come into effect in California?

In California, an Advance Directive doesn’t come into effect on signing the form by the grantor, proxy, and witnesses. An Advance directive comes into effect only when the doctor declares that you are incapable of deciding on your behalf and have become debilitated due to illness or injury.

Note: Your California Advance Directive will not be effective in any medical crisis or emergency unless you become incapacitated to understand and communicate your wishes and consent.

How can an Advance Directive be revoked?

You can revoke or terminate your California Advance Directive anytime by:

  • A written revocation,
  • An oral revocation, &
  • Tearing, burning, and obliterating or destroying the document in any other way.
  • Executing a new Advance Directive.

Note: An oral revocation of the Advance Directive or appointment of the Proxy/Agent will be effective once you give a written and signed revocation to your doctor.

How to amend or change an Advance Directive? 

You can make changes or amend your Advance Directive at any time in California but once you have signed and witnessed/notarized it you have to resubmit a new document with the required changes. It is recommended to go through, double-check, and make sure of everything before signing the Advance Directive.

California rules for divorce after making your Advance Directive 

Divorce from the spouse will not make any effect on the validity of the California Advance Directive unless the spouse was named under Section 1 as the Proxy/Agent then you have to make changes and fill a new document of Advance Directive. The divorce or annulment of marriage will revoke the California Advance Directive with immediate effect.

Sections of the California Advance Directive Form

Section 1: Power of attorney for health care

You can fill this form out and provide all the details. The appointment of the Healthcare Proxy/Agent and his details will be filled along with the instructions for the Proxy/Agent to follow.

On the left side, you will find a gray box that contains all the instructions that will help you in the application process. 

California Advance Directive Sample Form

SECTION 1: POWER OF ATTORNEY FOR HEALTH CARE 


(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health care decisions for me: 

(Name of individual you choose as agent) (address) (city) (state) (zip code)

(home phone) (work phone) 

OPTIONAL: If I revoke my agent’s authority or if my agent is not willing, able, or reasonably available to make a health care decision for me, I designate as my first alternate agent: 

(Name of individual you choose as first alternate agent)



…..

Section 2: Individual’s Instructions (Living Will)

This section states your wishes regarding medical care when your doctor determines that either:

  • that you are terminally ill & to prolong artificially your life you would need artificial life-sustaining procedures or your death will occur with or without the use of life-sustaining procedures, or 
  • that you are in a persistent vegetative state.

California Advance Directive Sample Form

SECTION 2: INSTRUCTIONS FOR HEALTHCARE 


END-OF-LIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: (Initial only one box) 


[ ] (a) Choice NOT To Prolong Life I do not want my life to be prolonged if 

(1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or 

(3) the likely risks and burdens of treatment would outweigh the expected benefits, OR 


[ ] (b) Choice To Prolong Life 


I want my life to be prolonged as long as possible within the limits of generally accepted health care standards


…..

Section 3: Donations of Organs at death

California Advance Directive Sample Form

SECTION 3 : DONATIONS OF ORGANS AT DEATH 

(OPTIONAL)


Upon my death (initial applicable box): 


[ ] (a) I do not give any of my organs, tissues, or parts and do not want my agent, conservator, or family to make a donation on my behalf, 


[ ] (b) I give any needed organs, tissues, or parts, OR 


[ ] (c) I give the following organs, tissues, or parts only 


My donation is for the following purposes: (strike any of the following you do not want) 

(1) Transplant 

(2) Therapy 

(3) Research 

(4) Education



…..

 

Section 4: Primary Physician

California Advance Directive Sample Form

SECTION 4 : PRIMARY PHYSICIAN

(OPTIONAL) 


I designate the following physician as my primary physician: 

(name of physician) 

(address) (city) (state) 

(zip code) (phone) 


OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician..



…..

Section 5: Execution

You must sign in the presence of two witnesses. The details of the witnesses along with their signs are also required.

California Advance Directive Sample Form

SECTION 5 : EXECUTION


OPTION 1: Sign before a Witness _______________________ ___________________________________ (date) (sign your name) __________________________________________________________ (print your name) __________________________________________________________ (address) __________________________________________________________ (city) (state) (zip code)


ACKNOWLEDGEMENT


State of California County of ___________________) On __________________________ before me,________________________________ (insert name and title of the officer) personally appeared _____________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies)......

….


I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing paragraph is true and correct. 


WITNESS my hand and official seal. 


Signature ______________________________________________

 

Section 6: Statement of Patient Advocate/Ombudsman

California Advance Directive Sample Form


STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN 



I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by section 4675 of the Probate Code. __________________________ ________________________________ (date) (signature) __________________________________________________________ (printed name) ___________________________________


…..

Give photocopies of the signed original to your agent and alternate agent, doctor(s), family, close friends, clergy, and anyone else who might become involved in your health care. If you enter a nursing home or hospital, have photocopies of your document placed in your medical records. 

Be sure to talk to your agent(s), doctor(s), clergy, family, and friends about your wishes concerning medical treatment. Discuss your wishes with them often, particularly if your medical condition changes

How can TrulyWill help?

We provide a quick and hassle-free online platform to create a Will or Trust to plan your estate or healthcare. In just 3 simple steps just like 1, 2 & 3 you can make a valid Estate or Healthcare Plan at the most affordable cost online. Guess what, we give a 30-day money-back offer!

Got Questions?

Hi, I’m Jennifer McGee.

Co-founder & Head of Legal at TrulyWill

Feel free to book a call with me to help you with your estate plan.

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Does an advance health care directive need to be notarized in California?
California state laws do not require you to have your Advance Healthcare Directive notarized to make it valid. However, you can have your document notarized instead of having two witnesses sign it. The state of California maintains California Advance Directive Registry. Your healthcare providers and loved ones will easily find a copy of your directive if you file your advance directive with the registry.
Does California recognize Advance Directive?
Yes, when your living will and medical power of attorney are combined into a single form called an advance health care directive in California.
What happens if a patient does not have an advance directive California?
If there's no advance directive & become incapacitated, the doctor may ask your family about your treatment and you could be given medical care you would not have wanted.
How do I get an advance directive in California?
To obtain or create an advance health care directive form: 1. Contact your health care provider. 2. Consult with private legal counsel. 3. Refer to the Office of the Attorney General's website. 4. Refer to Probate Code section 4701. 5. Last but not least, make an Advance Directive online.
How does an advance directive work in California?
An advance health care directive lets your physician, family, and friends know your health care preferences, including the types of special treatment you want or don't want at the end of life, your desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation, and organ donation.
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