IS AN ADVANCE HEALTH CARE DIRECTIVE THE SAME AS A LIVING WILL?

Yes - California's Advance Health Care Directive Form is what is commonly referred to as a living will. This form lets you do either or both of the following:

  1. Appoint someone to make health care decisions for you (i.e., create a power of attorney for health care)
  2. Make your health care wishes known, whether or not you create a power of attorney for health care.

California's Advance Health Care Directive Form is a statutory form. A statutory form is a form that is provided by statute (i.e., our laws). While use of the California Advance Health Care Directive is not mandatory, you can rest assured that it complies with the law and is therefore legally valid.

The law regarding the California Advance Health Care Directive is found in Division 4.7 of the California Probate Code, starting at section 4600, which is known as the Health Care Decisions Law. This law provides ways for adults to control the decisions regarding their own health care. It allows you to appoint an agent to handle your health care matters. Alternatively, you can make your health care wishes known without appointing an agent.



WHAT CAN I DO WITH A CALIFORNIA ADVANCE HEALTH CARE DIRECTIVE?

THE CALIFORNIA ADVANCE HEALTH CARE DIRECTIVE (LIVING WILL) FORM HAS SIX (6) PARTS. BELOW IS A SUMMARY CHART SHOWING WHAT YOU CAN DO WITH EACH PART.

ALSO, there is a statutory explanation regarding the California Advance Health Care Directive (Living Will) form. You should read this to better understand the form.

Part Name Description Completion Requirement  
Part 1 Power of Attorney for Health Care Allows you to appoint an agent to make
health care decisions for you
Optional
 
         

Part 2

Instructions for Health Care Allows you to give specific instructions
about any aspect of your health care,
whether or not you appoint an agent
Optional
 
         
Part 3 Donation of Organs At Death Allows you express your intent to donate
your organs at death
Optional
 
         
Part 4
Primary Physician
Allows you to designate a physician to have
primary responsibility for your health care
Optional
 
         
Part 5 Signature and Witnesses You must sign this form following
specific instructions as provided with
the completed form
Required
 
       
Part 6 Special Witness Requirement Execution by patient advocate or
ombudsman
Only required if you are a patient in a skilled nursing facility


WHAT ARE SOME USEFUL TERMS TO KNOW?
The following definitions are useful in helping you better understand the California Advance Health Care Directive (Living Will) form.

ADVANCE HEALTH CARE DIRECTIVE: Means either an individual health care instruction or a power of attorney for health care. Also known as a "living will."

INDIVIDUAL HEALTH CARE INSTRUCTION:
A patient's written or oral direction concerning a health care decision for himself or herself.

POWER OF ATTORNEY FOR HEALTH CARE:
A written instrument designating an agent to make health care decisions for the principal.

PRINCIPAL:
An adult who executes a power of attorney for health care.

AGENT: A person appointed in a power of attorney for health care to make a health care decision for the principal. Must be someone with capacity.

CAPACITY: Capacity means a person's ability to understand the nature and consequences of a decision and to make and communicate a decision. In the case of proposed health care, "Capacity" also includes the ability to understand the significant benefits, risks, and alternatives to the proposed health care. A patient is presumed to have capacity (California Probate Code section 4657). If a determination needs to be made as to whether the patient lacks or has recovered capacity, then such decision shall be made by the primary physician, unless it is specified otherwise in a written Advance Health Care Directive (California Probate Code section 4658). You must have capacity to prepare an advance health care directive (living will).

HEALTH CARE: Any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient's physical or mental condition.

HEALTH CARE DECISION: A decision made by a patient or the patient's agent, conservator, or surrogate, regarding the patient's health care, including the following:
     a) selection and discharge of health care providers and institutions.
     b) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication.
     c) Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation (See California Probate Code section 4617).

HEALTH CARE PROVIDER: An individual licensed, certified, or otherwise authorized or permitted by the law of this state (California) to provide health care in the ordinary course of business or practice of a profession.

HEALTH CARE INSTITUTION: An institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business.



DO I NEED ALTERNATE AGENTS?

It is not a requirement for you to choose an alternate agent. Do not feel compelled to appoint an alternate agent if you do not have a secondary person whom you can trust to make health care decisions for you. If you do have such a person however, it is helpful to appoint that person as an alternate agent in case your original agent's authority is revoked, or your original agent is not willing, able, or reasonably available to make health care decisions for you. In such event, your first alternate agent would step in to make health care decisions for you.

You can also appoint a second alternate agent in case both your original agent's AND your first alternate agent's authority is revoked, or if neither is willing, able, or reasonably available to make health care decisions for you. In such event, your second alternate agent would step in to make health care decisions for you.



WHO CAN'T BE AN AGENT?
If you decide to fill out Part 1 - the Power of Attorney for Health Care - you will need to appoint an agent (and may want to appoint alternate agents). You should talk to the person you consider naming as agent to make sure that he or she understands your wishes and is willing to take the responsibility. When appointing an agent, keep in mind that unless your agent is related to you or is a coworker, your agent may not be either of the following:

  1. An operator or employee of a community or residential care facility where you are receiving care.
  2. Your supervising health care provider or employee of the health care institution where you are receiving care.

And even if your agent is related to you or is a coworker, your agent still cannot be your supervising health care provider.

Finally, someone without capacity cannot be your agent.


WHAT CAN OR CAN'T MY AGENT DO?
WHAT CAN MY AGENT DO?

Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. If you wish to rely on your agent for all health care decisions that may have to be made, you need not limit the authority of your agent . If you choose NOT to limit the authority of your agent, your agent will have the right to:

  1. Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
  2. Select or discharge health care providers and institutions.
  3. Approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
  4. Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
  5. Make anatomical gifts, authorize an autopsy, and direct disposition of remains.

WHAT CAN'T MY AGENT DO?

Per California Probate Code section 4652, you can't authorize your agent to consent to any of the following:
  1. Commitment to or placement in a mental health treatment facility.
  2. Convulsive treatment (as defined in section 5325 of the Welfare and Institutions Code).
  3. Psychosurgery (as defined in section 5325 of the Welfare and Institutions Code).
  4. Sterilization.
  5. Abortion.


HOW DO I LIMIT MY AGENT'S AUTHORITY?

If you do not want your agent to do something, you should clearly state so on your California Advance Health Care Directive (Living Will). Use simple and accurate sentences.

EXAMPLE: If you do not want your agent to withhold artificial nutrition, but you want to allow his/her consent to it, you should write: "I do not authorize my agent to withhold artificial nutrition."

Be careful not to inadvertently write broad limitations. For the example above, it would be overly broad to use a sentence such as: "I do not authorize my agent to make decisions regarding artificial nutrition and hydration." This would not allow your agent to consent to, as well as withhold, artificial nutrition and hydration.

If desired, you may place broad restrictions on your agent's authority by limiting your agent's authority to only those matters that you give instructions for in Part 2 of the California Advance Health Care Directive (Living Will).

EXAMPLE: "My agent is only authorized to act on my behalf with respect to, and in furtherance of, the health care wishes I provided in part 2 of this California Advance Health Care Directive (Living Will). My agent is not authorized to make decisions or take action for me with respect to any other matters."

IF YOU DECIDE TO DO THIS, YOU MUST REMEMBER TO FILL OUT PART 2 OF THE ADVANCE HEALTH CARE DIRECTIVE FORM.

LIMITING YOUR AGENT'S POST-DEATH AUTHORITY
There is also a place on the form to limit your agent's post-death authority.

EXAMPLES:

  1. "My agent shall not be allowed to authorize an autopsy."
  2. "I do not authorize my agent to make decisions regarding funeral arrangements."

You can place any limitation on your agent's authority as you desire. Just be careful to make your instructions as clear and specific as possible.



HOW DO I MAKE MY PARTICULAR HEALTH CARE WISHES KNOWN?

Part 2 of the California Advance Health Care Directive (Living Will) form allows you to make your particular health care wishes known. The form has choices regarding two (2) subjects, and then allows you to add your own health care wishes.

"END OF LIFE" DECISIONS: The California Advance Health Care Directive (Living Will) form provides two choices. You may choose NOT to prolong your life under certain circumstances (indicated on the Intelligent Questionnaire for California Advance Health Care Directive (Living Will)). Alternatively, you may choose to prolong your life as long as possible. You may modify or give more specific instructions regarding your choice in the "other wishes" section of Part 2 of the California Advance Health Care Directive (Living Will) (see Example 2 below).

"RELIEF FROM PAIN" DECISIONS: The California Advance Health Care Directive (Living Will) form assumes that you want to receive treatment for pain even if it hastens your death. If this is not the case, you may write-in specific instructions regarding this subject matter.

EXAMPLE 1: You may write in: "I do not wish to receive treatment for alleviation of pain or discomfort if it hastens my death or causes me to be unconscious."

OTHER WISHES: Finally, you can enter any particular wishes you have about your health care, whether or not you have appointed an agent using Part I of this form. If you have appointed an agent in Part 1, your agent must make health care decisions for you in accordance with the specific instructions you make in Part 2 of the California Advance Health Care Directive (Living Will), and in accordance with your other wishes if known to the agent. California Probate Code section 4684.

EXAMPLE 2: If you do not wish to stay in a comatose state indefinitely, you can write: "Despite my above choice to prolong my life as long as possible, if I fall into a comatose state, I do not wish to prolong my life for more than six (6) months."

You can enter in this section any other health care wish you may have. Be sure to write as clearly and specifically as possible.



HOW DO I DONATE ORGANS UPON DEATH?
Part 3 of the California Advance Health Care Directive (Living Will) form allows you to donate organs upon death. If you want to donate organs upon death, mark the appropriate choices. If you do not want to donate any organs, do not fill out Part 3.


WHO IS MY PRIMARY PHYSICIAN?
Part 4 of the California Advance Health Care Directive (Living Will) form allows you to designate a primary physician. You may designate a physician to have primary responsibility for your health care. Some people have a close or long standing relationship with a doctor whom they trust for their health care needs. If this is the case for you, you may name this doctor as your primary physician in Part 4 of the California Advance Health Care Directive (Living Will) form. If you do not know or are not close with a particular physician, you do not need to fill out this part of the form. If you appoint an agent in Part 1, your agent may select a health care provider when needed.


DO I NEED TO SIGN THIS FORM BEFORE A NOTARY PUBLIC?
Not necessarily, but it is a wise course of action. The law allows the form to be either 1) acknowledged before a notary public, or 2) signed by two qualified witnesses. See California Probate Code section 4673(c).


WHAT IS A QUALIFIED WITNESS?

Pursuant to California Probate Code section 4674, if you use witnesses to sign the California Advance Health Care Directive (Living Will), then the following requirements must be satisfied:

(a) The witnesses shall be adults.

(b) Each witness signing the advance directive shall witness either the signing of the advance directive by the patient or the patient's acknowledgment of the signature or the advance directive.

(c) None of the following persons may act as a witness:

  1. The patient's health care provider or an employee of the patient's health care provider.
  2. The operator or an employee of a community care facility.
  3. The operator or an employee of a residential care facility for the elderly.
  4. The agent, where the advance directive is a power of attorney for health care.

(d) Each witness shall make a declaration that is in substance the same as that provided in California Probate Code 4674. If you use the Intelligent Questionnaire for California Advance Health Care Directive (Living Will) to prepare an California Advance Health Care Directive (Living Will), the necessary language will be included in the completed California Advance Health Care Directive (Living Will) - ready for witness signing.

(e) At least one of the witnesses shall be an individual who is neither related to the patient by blood, marriage, or adoption, nor entitled to any portion of the patient's estate upon the patient's death under a will existing when the advance directive is executed or by operation of law then existing.

(f) The witness satisfying the requirement of subdivision (e) shall also sign another declaration as prescribed by law. If you use the Intelligent Questionnaire for California Advance Health Care Directive (Living Will) to prepare an California Advance Health Care Directive (Living Will), the necessary language will be included in the completed California Advance Health Care Directive (Living Will) - ready for witness signing.



WHAT IS A SKILLED NURSING FACILITY?

A skilled nursing facility is a health care facility that provides the following basic services: Skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis.

If you are a patient in a skilled nursing facility when executing your California Advance Health Care Directive (Living Will), then a patient advocate or ombudsman must sign the California Advance Health Care Directive (Living Will) as a witness, either as one of two witnesses or in addition to notarization. Otherwise, the document will not be effective.



WHO IS A PATIENT ADVOCATE OR OMBUDSMAN?

The patient advocate or ombudsman is a person who may be designated by the Department of Aging for this purpose pursuant to any other applicable provision of law. You can ask the health care provider's social worker or social services department to help you identify or locate a patient advocate or ombudsman.



HOW DO I REVOKE MY CALIFORNIA ADVANCE HEALTH CARE DIRECTIVE (LIVING WILL)?

If you have capacity, you may revoke all or part of an California Advance Health Care Directive (Living Will), at any time and in any manner that communicates an intent to revoke, EXCEPT for the designation of an agent. To revoke the designation of an agent, you must do it either by a signed writing or by personally informing the supervising health care provider.

Additionally, certain events operate to revoke all or part of an California Advance Health Care Directive (Living Will). Particularly, if your agent is your spouse, and you get a divorce, then your spouse's designation as an agent is revoked. If you remarry, then the designation is revived (unless also revoked by other means) See California Probate Code section 4697. Finally, if you make an California Advance Health Care Directive (Living Will) that conflicts with an earlier California Advance Health Care Directive (Living Will) that you made, then the earlier California Advance Health Care Directive (Living Will) is revoked only to the extent of the conflict.

If any revocation has been made, it is a good idea to inform your health care providers of any such revocation.



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