CALIFORNIA - ADVANCE DIRECTIVES

March 18, 2008

California state laws and regulations that affect your medical practice

Federal law requires all patients admitted to a health-care facility be informed of their right to make an advanced directive. Advanced directives are intended to direct physicians to a patient’s preferences when making treatment decisions.

In July 2000, California enacted the Health Care Decisions Act (Act) which allows individuals to insure that their health care wishes are known and considered if they become unable to make these decisions themselves. Under the Act, an Advance Health Care Directive is the legally recognized document for both appointing a health care agent and creating a living will. As such, while a Health Care Power of Attorney or Living Will that was valid before July 1, 2006, is still recognized, the preference is for patients to draft a new Advance Health Care Directive.

An Advance Health Care Directive can be completed by any California resident who is competent and at least 18 years old.

Cal. Prob. Code §4671 (West 2006).

The Directive is legally sufficient so long as it is: (1) dated, (2) signed by the patient or another at the patient’s direction, and (3) is either acknowledged by a notary or signed by 2 witnesses.

Cal. Prob. Code § 4673 (West 2006).

The 2 signing witnesses can not be the patient’s health care provider, the operator of employee of a health care facility in which a patient resides, or the appointed health care agent.

Cal. Prob. Code § 4674 (West 2006).

Where a patient has appointed a health care agent, the agent has legal authority to speak for the patient in health care matters. However, an agent’s authority may be limited by the patient and all decisions must be consistent with a patient’s explicit instructions. In all cases, it is important to review a patient’s directive before acting. Also, an agent cannot authorize convulsive treatment, psychosurgery, sterilization, abortion or placement in a mental health treatment facility.

In addition to the Advance Health Care Directive, California allows for one additional form: a Pre-hospital Do Not Resuscitate Order. This form instructsEMS personnel not to render CPR.

Copyright © Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

Updated 2008