What is a California Healthcare Power of Attorney?

Generally, a California healthcare power of attorney is a legal document that permits another person (an agent) to make health care decisions on behalf of the individual granting the instrument (the principal) when the principal becomes incapacitated and is no longer able to make important decisions regarding their healthcare. A California healthcare power of attorney gives the agent the power to make health care decisions for the principal to the degree set forth in the instrument. The decisions made by the health care agent are binding on the principal’s health care providers as if the principal was making the decision himself or herself.

How long is a California Healthcare Power of Attorney valid?

Generally, a California Healthcare Power of Attorney lasts until it is revoked by the principal. The principal only loses the ability to revoke or amend the instrument when they become incapacitated under California law. The agent’s authority to act on your behalf terminates when you die.

What happens if I become incapacitated before a Healthcare Power of Attorney is created?

When the incapacitated individual has not nominated an agent through a valid California healthcare power of attorney, the California courts will appoint an individual (called a guardian) to make health care decisions during the period of incapacity. The incapacitated individual no longer has any control over who is appointed. California law has detailed provisions that dictate the order in which individuals must be considered by the courts. Generally, the California statute requires that the courts first consider the spouse or domestic partner of the incapacitated party. If the spouse or domestic partner is deceased, the court looks to whether there was anyone nominated by the deceased spouse or domestic partner in his or her will. Next, the courts consider the adult children of the incapacitated party or an individual nominated in the deceased child’s will. The statute then requires courts to look to parents, adult siblings, and relatives that the individual has resided with for more than 6 months before the petition was filed, respectively. After the court has exhausted all of these options, the court may consider any other individual. While this specific order is unique to the District of Columbia, almost every state has similar provisions.

Is a California Healthcare Power of Attorney revocable?

Yes, California a Healthcare Power of Attorney is revocable. In addition, a California healthcare power of attorney is amendable. The principal only loses their ability to revoke or amend the instrument when they become incapacitated under California law.

Are there any disadvantages to having a California Healthcare Power of Attorney?

As with any legal instrument setting up a principal-agent relationship, the agent may breach the fiduciary duties owed to the principal. Generally, a health care power of attorney supersedes a court-appointed guardian. Therefore, California courts will not be supervising the process and making sure that the agent is acting in your best interest. This is why is it very important that the principal chooses someone they trust to act in their best interest.

Secondly, a California Healthcare Power of Attorney does not guarantee that a court-appointed  California guardianship will be avoided. If your nominated agents either refuse to act or are unable to act on your behalf, the default provisions provided by California law will be implemented.

What specific powers will the agent have under a California Healthcare Power of Attorney?

A California Healthcare Power of Attorney allows the principal to set forth the authority they are giving to their agent. A power of attorney may be limited. For example, the power of attorney may give the principal the authority to hire and fire medical personnel but prohibit them from making decisions regarding whether or not medical treatment should be administered.

Who should I choose to be my agent under a California Healthcare Power of Attorney?

Selecting a Healthcare Power of Attorney is an important decision. Typically people choose a close family member to act as their agent. However, any qualified person over the age of 18 can be chosen by a principal can serve as the individual’s agent. Some people might feel more comfortable choosing a close friend as their guardian, and California law allows clients to make this decision. Some people might also nominate alternate agents to serve under the instrument, in case the first agent is not willing or unable to act.

Under California law, an agent must act in the principal’s best interest when making decisions. It is extremely important that the principal nominates someone that they can trust and depend on to make the difficult decisions.

If I have a California healthcare power of attorney, do I still need a living will?

A healthcare power of attorney does not eliminate the need for a living will or an advance directive. These instruments will provide your agent with guidance on the types of decisions you want them to make. It is possible to combine a healthcare power of attorney, living will, and other advance directives in one document to ensure that your wishes are clear and properly carried out.