Health Care POAs & Directives

Basic Requirements of Valid Health Care Directive

Capacity: Who can create?

  • 18 years old or older & capacity:
    • to understand the nature & consequences of a health care decision (here, of making an advanced health care directive),
    • to make & communicate this decision, &
    • to understand the significant benefits, risks, & alternatives.
  • Cal. Probate Code § 4609

Signature

To be valid, an written advanced health care directive must be:

  • signed by the principal (the person making the directive) or in the principal’s name by another adult in the principal’s presence & at their direction;
  • & dated.
  • Cal. Probate Code § 4673(a) & 4680

Witness or Notary

The directive must be either:

  • acknowledged before a notary publicor
  • signed by at least two witnesses
    • But if the directive is witnessed rather than notarized, pursuant to Section 4674 of the Probate Code, the witnesses must:
      • be adults
      • observe the principal either sign the directive or acknowledge their signature on the directive
      • make a declaration as provided by the statute, &
      • at least one witness must not be related to the principal by blood, marriage, or adoption, nor entitled to any part of the principal’s estate under a will or operation of law (e.g. by intestacy or court order)
    • the following persons do not qualify as witnesses:
      • the patient’s health care provider,
      • operator or employee of an elder care facility,
      • the agent who is to execute, or the directive.

Who can be an Agent with Power of Attorney

The Principal is the person who makes the Power of Attorney or Advanced Health Care Directive & the Agent is the person appointed by the principal to make decisions.

Certain people such as employees of nursing homes where the person is staying cannot act as a Agent for making health care decisions:the supervising health care provider,

Durable Power of Attorney

A durable Power of Attorney enables a person with capacity power to make decisions on another’s behalf. One common Power of Attorney is the Power of Attorney for Health Care, but the Power-of-Attorney devise can also be used for reasons such as to provide for a person’s living needs or to manage financial resources.

Capacity. The capacity to create a Power of Attorney is higher than the standard to create a trust or will. The standards for determining capacity are based on whether the Principal who creates the POA is capable of managing financial resources & resisting fraud or undue influence. Cal. Civil Code § 2296 & Prob. Code § 4120.

Date of Execution & Signature are required. Cal. Prob. Code § 4121.

Witnesses & Notary.

  • To be valid, certain statutory Power of Attorney forms must be notarized. Prob. Code § 4402(c).
  • A non-statutory Power of Attorney may be either
    • acknowledged before a notary public or
    • signed by at least two witnesses both of whom are at least 18, neither of whom is the agent, & each of whom observes the principal sign the instrument or acknowledge the signature. Prob. Code §§ 4121(c), 4122.

Revocation of POA


A valid, advanced health care directive or POA generally remains active for the principal’s lifetime, unless the directive limits authority of the agent or the Principal revokes it & provides notice to their Agent. (Prob. Code § 4686.)

To revoke their agency designation, the principal must have capacity to revoke & must do so only in a signed writing or by personally informing the supervising health care provider. Prob. Code § 4695(a).

To revoke the all or part of the instructions of advance health care directive, a Principal having capacity may do so at any time & in any manner communicating their intent to revoke. Prob. Code § 4695(b).

Supervising health care providers must make reasonable efforts to notify the agent or surrogate of any revocation or disqualification of which they are aware. Prob. Code § 4731.

Death & Remains Decisions

Under California Probate Code section 4683 (b), an Agent may also be authorized to make decisions that are effective after the Principal’s death including:

• Authorizing an autopsy;

• Directing disposition of remains;

• Authorizing the release of necessary records;

• Making gifts under the Uniform Anatomical Gift Act. Cal. Health & Safety Code §§ 7150 – 7151.40.

Disposition of Remains

An Advanced Health Care Directive (and other estate documents) may make specific requests concerning disposition of remains upon death, such as burial, cremation, or other directions.

When a client chooses cremation, the client may direct the executor in the advance health care directive to scatter the client’s ashes. Non-binding language may be included regarding the scattering of ashes. California laws generally restricts disposition of ashes to:

• Placing ashes in a mausoleum;

• Burying ashes on cemetery grounds;

• Keeping ashes at home (the custodian must sign a permit & agree not to remove the ashes from their container).

• Scattering ashes at sea or inland navigable waters be at least 500 yards from the shore, but not in lakes and streams.

See the “Consumer Guide to Funeral and Cemetery Purchases” by the California Cemetery & Funeral Bureau. For scattering at sea, special rules apply. See the Environmental Protection Agency’s webpage, Burial at Sea. It is also possible to obtain permission to scatter ashes on federal land, for example in a national park. See the National Park Service website.

In the event that written instructions were not provided regarding disposition of remains, priority to control disposition of that person’s remains goes to particular family members or close friends. Cal. Health & Saf. Code § 7100.

Resuscitation Requests

Resuscitation requests are not health care directives. The forms to make the requests are approved by the California Emergency Medical Services Authority & must be executed by both the Principal & their physician or nurse-practitioner. Two types of forms regarding resuscitation measures are DNRs & POLSTs.

DNR or Do Not Resuscitate Orders allows a person to prevent the administration of certain specific resuscitative measures. A DNR does not include any directions regarding other types of health care procedures or emergency care. A person may obtain DNR medallion engraved with the DNR orders, which may be worn at all times so that their DNR wishes will be readily apparent before emergency workers begin resuscitation. Prob. Code § 4780(e).

POLSTs or Physician Orders for Life-Sustaining Treatment provide for certain additional treatment options that affect end-of-life care, beyond DNRs. A health care provider completes a POLST based on patient preferences and medical indications. An admitted patient’s POLST may be revoked in a manner that demonstrates that intent. Prob. Code § 4780(d).

  • Cal. Prob. Code §§ 4780 to 4788


A mentally competent person in California, for the most part, has the right to control the health care they receive, but there are some key ingredients to making a valid Advanced Health Care Directive.

An advanced health care directive may include on or both of the following:

  • a Power of Attorney for health care — this authorizes someone (the agent or attorney-in-fact) to make health care decisions; &/or
  • Health Care Instructions — directing particular health care decisions to be made.
  • Prob. Code §§ 4605, 4623, 4629

A health care decision is any decision regarding the patient’s health care including:

  • directions to provide, withhold or withdraw artificial nutrition, hydration & other forms of health care;
  • selecting & discharging health care providers or institutions;
  • approving or disapproving tests, procedures, medications.
  • Cal. Prob. Code § 4617

An Agent may also be authorized to:

  • decide where the principal will live
  • hire household employees
  • provide transportation & meals
  • handle mail
  • arrange recreation & entertainment.
  • Prob. Code § 4671(b)

Certain things are not health care decisions in California:

  • placement in a mental health treatment facility
  • convulsive treatment
  • sterilization
  • abortion
  • assisted suicide or euthanasia.
  • Prob. Code §§ 4652 – 4653

The Agent is required to carry out the health care decisions of the principal as stated in the directive or to the extent known by the Agent. The Agent otherwise makes decisions in the principal’s best interest, rather than substituting their own wishes. Prob. Code § 4684; Wendlund v Wendlund (2001) 26 Cal.4th 519.

Obtaining Medical Records

Generally, the Agent of a Health Care POA has the same right as the Principal to obtain, examine, copy, and consent to the disclosure of medical or other health care information. No separate HIPAA release is required. Prob. Code § 4678.

The principal may nonetheless still wish to execute a HIPAA release so that others, such as family members, can review medical records.