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California Living Wills and Advance Health Care Directives

Don't put off making a California advance health care directive (power of attorney and living will).

Nolo

Most everyone should consider creating a living will and medical power of attorney (called an "advance health care directive" in California). While you might never need to use it, an advance health care directive can help ensure that you get the medical care you want. It can also greatly help your loved ones by making your wishes known and eliminating agonizing guesswork on what you would've wanted. Below, you can learn all about these important health care documents and how to make legally valid ones in California.

What are health care forms called in California?

There are two basic kinds of health care documents that everyone should make. First, you'll need a document naming a trusted person to direct your health care if you are unable to do so yourself. This document is commonly called a durable power of attorney for health care.

Second, you should make a document setting out the types of medical treatment you would or would not like to receive in certain situations. This document is often known as a living will.

While in many states, these documents are created as separate documents, in California, they are combined into a single form called an advance health care directive. In other words, in California, making an advance health care directive requires simply filling out, signing, and getting notarized (or witnessed) one document.

What does a living will and power of attorney for health care do?

If you become unable to direct your own medical care because of illness, an accident, or advanced age, the right legal documents are your lifeline. When you don't write down your wishes about the kinds of medical treatment you want and name someone you trust to oversee your care, these important matters can be placed in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer.

Who needs a living will and power of attorney?

An advance health care directive (comprised of a living will and power of attorney) helps you plan for incapacity, whether expected or unexpected. It's not used unless you're unable to speak for yourself. While of course no one likes to think about such possibilities, the truth is that any adult can benefit from having an advance health care directive in place. This document helps you lay out your wishes for health care and designate someone you trust.

Of course, creating an advance health care directive can be more urgent for some. You may especially want to consider creating one if:

  • You have a long-term or terminal illness, or other serious health issues
  • You are undergoing a significant medical procedure or otherwise expect to be incapacitated, even temporarily
  • You are getting older and needing more help as you age
  • You are moving into a nursing or long-term care facility.

Who makes health care decisions for me in California?

In California, the person you name to make decisions for you is called your agent. Most people name a spouse, partner, relative, or close friend as their agent. Under California law, your agent may not be:

  • your treating health care provider
  • an employee of your treating health care provider, unless the individual is your registered domestic partner or is related to you by blood, marriage or adoption—or you and the employee both work for your treating health care provider
  • an operator or employee of a community care facility, unless the individual is your registered domestic partner or is related to you by blood, marriage or adoption—or you and the employee both work at the community care facility
  • an operator or employee of a residential care facility for the elderly, unless the individual is your registered domestic partner or is related to you by blood, marriage or adoption—or you and the employee both work at the residential care facility.

What else do I need to know about choosing a health care agent in California?

When choosing your agent, the most crucial criteria are trustworthiness and dependability. You might also want to choose someone you think will be good at asserting your health care wishes if others argue against them—that is, someone who is persistent or calm under pressure.

While you need not name someone who lives in California, the person you name should at least be willing and able to travel to your bedside if necessary.

Your agent will begin to make health care decisions for you when you lack the capacity to do so. For more information, see Living Wills and Powers of Attorney for Health Care: How They Work.

What are the legal requirements of a living will and power of attorney in California?

Your advance directive must be either witnessed by two adults or notarized. If you choose to have it signed by witnesses, California law imposes a few restrictions on who can be your witness. For example, one witness cannot be related to you, and neither witness can be your agent, health care provider, or employee of a nursing facility where you live.

If you live in a skilled nursing facility when you make your advance directive, you will also need to get an additional, special witness.

Learn more about finalizing your advance directive in California.

Do I need a lawyer to make health care documents in California?

You usually don't need a lawyer to prepare documents directing your health care. In fact, state governments have designed these forms for people to complete on their own by filling in the blanks. You can find the health care forms you need for California in Nolo's Quicken WillMaker & Trust software. The software includes detailed instructions for completing your documents and meets all California legal requirements.

For more on California estate planning issues, see our section on California Estate Planning.

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