Mutual Wills containing Last Will and Testaments for Unmarried Persons with No Children
CALIFORNIA PROBATE CODE, 4400-4409 and 4670-4701
ADVANCE HEALTH CARE DIRECTIVES
(PROBATE CODE, 4670-4701)
An adult having capacity may give an individual health care instruction. The individual instruction may be oral or written and may be limited to take effect only if a specified condition arises.
An adult having capacity may execute a power of attorney for health care which may authorize the agent to make health care decisions and may also include individual health care instructions.
The principal in a power of attorney for health care may grant authority to make decisions relating to the personal care of the principal, including, but not limited to, determining where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment.
A written advance health care directive may include the individual's nomination of a conservator of the person or estate or both, or a guardian of the person or estate or both, for consideration by the court if protective proceedings for the individual's person or estate are thereafter commenced. The court will give effect to the most recent writing whether or not the writing is a written advance health care directive.
A written advance health care directive is legally sufficient if all of the following requirements are satisfied:
The advance directive contains the date of its execution.
The advance directive is signed either by the patient or in the patient's name by another adult in the patient's presence and at the patient's direction.
The advance directive is either acknowledged before a notary public or signed by at least two witnesses.
If the written advance health care directive is signed by witnesses, the following requirements shall be satisfied:
The witnesses shall be adults.
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.
None of the following persons may act as a witness:
The patient's health care provider or an employee of the patient's health care provider.
The operator or an employee of a community care facility.
The operator or an employee of a residential care facility for the elderly.
The agent, where the advance directive is a power of attorney for health care.
At least one of the witnesses must 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.
Each witness must make the appropriate statutory witness declaration.
If an individual is a patient in a skilled nursing facility when a written advance health care directive is executed, the advance directive is not effective unless a patient advocate or ombudsman, as may be designated by the Department of Aging for this purpose pursuant to any other applicable provision of law, signs the advance directive as a witness, either as one of two witnesses or in addition to notarization. The patient advocate or ombudsman must declare that he or she is serving as a witness as required by law.
In the absence of knowledge to the contrary, a physician or other health care provider may presume that a written advance health care directive or similar instrument, whether executed in another state or jurisdiction or in this state, is valid.
Unless otherwise specified in an advance health care directive, a person authorized to make health care decisions for a patient has the same rights as the patient to request, receive, examine, copy, and consent to the disclosure of medical or any other health care information.
A power of attorney for health care is legally sufficient if it satisfies the requirements of 4673.
Unless otherwise provided in a power of attorney for health care, the authority of an agent becomes effective only on a determination that the principal lacks capacity, and ceases to be effective on a determination that the principal has recovered capacity.
Subject to any limitations in the power of attorney for health care:
An agent designated in the power of attorney may make health care decisions for the principal to the same extent the principal could make health care decisions if the principal had the capacity to do so.
The agent may make decisions that may be effective after the principal's death, including the following:
Making a disposition under the Uniform Anatomical Gift Act.
Authorizing an autopsy.
Directing the disposition of remains.
An agent must make a health care decision in accordance with the principal's individual health care instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.
Unless the power of attorney for health care provides otherwise, the agent designated in the power of attorney who is known to the health care provider to be reasonably available and willing to make health care decisions has priority over any other person in making health care decisions for the principal.
Unless the power of attorney for health care provides a time of termination, the authority of the agent is exercisable notwithstanding any lapse of time since execution of the power of attorney.
An agent under a power of attorney for health care may not make a health care decision if the principal objects to the decision. If the principal objects to the health care decision of the agent under a power of attorney, the matter shall be governed by the law that would apply if there were no power of attorney for health care.
If the principal becomes wholly or partially incapacitated, or if there is a question concerning the capacity of the principal, the agent may consult with a person previously designated by the principal for this purpose, and may also consult with and obtain information needed to carry out the agent's duties from the principal's spouse, physician, attorney, a member of the principal's family, or other person, including a business entity or government agency, with respect to matters covered by the power of attorney for health care.
A patient having capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider.
A patient having capacity may revoke all or part of an advance health care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.
If, after executing a power of attorney for health care, the principal's marriage to the agent is dissolved or annulled, the principal's designation of the former spouse as an agent to make health care decisions for the principal is revoked.
An advance health care directive that conflicts with an earlier advance directive revokes the earlier advance directive to the extent of the conflict.
The form provided in 4701 may, but need not, be used to create an advance health care directive.
