Living Will and Advance Health-Care Instruction Requirements in California

At a glance

California draws a line most states do not. An individual health care instruction is what you say or write about your own future care, and § 4670 lets it be oral. An advance health care directive is the formal written document, and only that document carries execution formalities. Under § 4600, both live in the Health Care Decisions Law, Probate Code division 4.7.

Requirements one by one

Governing law and document

Section 4670 is one sentence long in each of its three parts: "An adult having capacity may give an individual health care instruction. The individual instruction may be oral or written. The individual instruction may be limited to take effect only if a specified condition arises."

Under § 4671(a), an adult with capacity may execute a power of attorney for health care that "may authorize the agent to make health care decisions and may also include individual health care instructions." So the same paper can do one job or both.

The § 4701 statutory form is offered, not imposed. Its own explanation says: "If you use this form, you may complete or modify all or any part of it. You are free to use a different form." And § 4750(a) confirms that a directive "is effective and exercisable free of judicial intervention."

Who may make an instruction

An adult having capacity. Section 4609 defines capacity as "a person's ability to understand the nature and consequences of a decision and to make and communicate a decision," including, for proposed health care, understanding "its significant benefits, risks, and alternatives."

Section 4657 puts the thumb on the scale: a patient "is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate," and that presumption affects the burden of proof.

Someone physically unable to sign is not shut out. Section 4673(a)(2) allows a directive signed "in the patient's name by another adult in the patient's presence and at the patient's direction."

Oral, written, and signature form

For an oral instruction, there are no formalities at all — no witnesses, no notary, no writing. That is the whole of § 4670.

For a written directive, § 4673(a) requires exactly three things: the date of execution; the patient's signature or a directed signature; and either notarization or two witnesses meeting §§ 4674 and 4675.

Electronic directives are treated differently, and the difference is easy to miss. Section 4673(b) applies the same requirements "except that for the purposes of paragraph (3) of subdivision (a), an acknowledgment before a notary public shall be required." The two-witness alternative is unavailable electronically. If a digital signature is used it must also satisfy seven criteria: an approved algorithm, uniqueness, capability of verification, sole control, invalidation if the data changes, persistence with the document rather than in separate files, and binding to a digital certificate.

Witness, notary, and disqualifications

Choose one route. A notary acknowledgment alone suffices, and § 4674(g) confirms the witness rules "do not apply to a notary public before whom an advance health care directive is acknowledged."

If you use witnesses, both must be adults, and each must witness either the signing or the patient's acknowledgment of the signature or the directive (§ 4674(a)–(b)). Four categories are disqualified under § 4674(c): the patient's health care provider or that provider's employee; the operator or an employee of a community care facility; the operator or an employee of a residential care facility for the elderly; and the agent, where the directive is a power of attorney for health care.

Section 4674(e) adds an independence requirement for one of the two: at least one witness must be neither related to the patient by blood, marriage, or adoption, nor entitled to any portion of the patient's estate under an existing will or by operation of law. That witness signs a second declaration to that effect (§ 4674(f)), on top of the five-point declaration both witnesses sign under § 4674(d).

The skilled-nursing rule is covered under "What trips people up" below.

Covered conditions and trigger

California is an outlier here. There is no statutory list of qualifying conditions — no "terminal condition" definition gating the instruction, and no requirement that two physicians certify anything before an instruction operates. The maker sets the condition: § 4670 says the instruction "may be limited to take effect only if a specified condition arises."

Section 4658 assigns the finding to one person. Unless the written directive says otherwise, a determination "that a patient lacks or has recovered capacity, or that another condition exists that affects an individual health care instruction or the authority of an agent or surrogate, shall be made by the primary physician."

The optional § 4701 form supplies default language if you want it. Its "Choice Not To Prolong Life" applies where there is an incurable and irreversible condition resulting in death "within a relatively short time," unconsciousness with no return to consciousness to a reasonable degree of medical certainty, or likely risks and burdens outweighing expected benefits.

Treatment, nutrition, hydration, and comfort choices

The § 4701 form keeps the end-of-life choice and pain relief separate. Part 2 (2.1) offers the binary between not prolonging life in the listed circumstances and prolonging it "as long as possible within the limits of generally accepted health care standards." Part 2 (2.2) then states a default that survives either choice: "I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death," subject to whatever the maker writes in the space provided.

Artificial nutrition and hydration and CPR are not carved out. Section 4617 expressly defines a health-care decision to include directions "to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation."

Pregnancy and other statutory limits

California's Health Care Decisions Law states no pregnancy limit. There is no provision suspending or overriding an adult's instruction during pregnancy, and the § 4701 statutory form contains no pregnancy clause. This distinguishes California from many states whose living-will statutes carry an express pregnancy override.

The division's express limits are subject-matter ones, and they bind anyone consenting on a patient's behalf. Section 4652 says the division "does not authorize consent to any of the following on behalf of a patient": commitment to or placement in a mental health treatment facility; convulsive treatment; psychosurgery; sterilization; and abortion.

Section 4653 adds the natural-dying boundary: the Act does not authorize mercy killing, assisted suicide, euthanasia, or another affirmative or deliberate act or omission to end life beyond withholding or withdrawing health care to permit the natural process of dying.

Section 4677 protects the choice itself. A provider, plan, institution, disability insurer, self-insured welfare plan, or nonprofit hospital plan "may not require or prohibit the execution or revocation of an advance health care directive as a condition for providing health care, admission to a facility, or furnishing insurance."

Revocation, notice, and registry

Section 4695 splits revocation in two, and the halves have different rules.

Instructions: a patient with capacity may revoke all or part of a directive other than the agent designation "at any time and in any manner that communicates an intent to revoke" (§ 4695(b)). No writing, no witnesses.

Agent designation: revocable "only by a signed writing or by personally informing the supervising health care provider" (§ 4695(a)).

Two automatic rules operate without any act by the patient. A later directive revokes an earlier conflicting one to the extent of the conflict (§ 4698). And dissolution or annulment of a marriage to the agent revokes that designation, revived if the couple remarries (§ 4697).

Section 4696 puts a duty on the people who hear about a revocation: a provider, agent, conservator, or surrogate who is informed of one "shall promptly communicate the fact of the revocation to the supervising health care provider and to any health care institution where the patient is receiving care."

Under § 4731, that provider promptly records a known directive or revocation, requests a copy if it is in writing, and maintains a furnished copy in the patient's health-care record.

The Secretary of State registry under § 4800 is optional. Registrants pay a cost-recovery fee and receive a registry identification card. Section 4802 requires a registrant to notify the registry of revocation and reregister after a later directive; §§ 4803–4804 say nonregistration does not affect validity and registration creates no presumption of validity or priority.

Provider duties, recognition, and effect

Section 4733 states the baseline duty: comply with the instruction and with "a reasonable interpretation of that instruction" made by someone then authorized to decide for the patient.

Two exceptions follow. Under § 4734 a provider may decline "for reasons of conscience," and an institution may decline where the instruction is contrary to an expressly conscience-based policy "timely communicated" to the patient or decision-maker. Under § 4735 either may decline care that is "medically ineffective" or "contrary to generally accepted health care standards."

Declining triggers three obligations under § 4736: promptly inform the patient if possible and any authorized decision-maker; unless assistance is refused, "immediately make all reasonable efforts to assist in the transfer"; and provide continuing care until transfer occurs or clearly cannot. The section closes with a floor: "In all cases, appropriate pain relief and other palliative care shall be continued."

Under § 4740, good-faith compliance is immune from civil liability, criminal liability, and discipline. Section 4742 supplies teeth in the other direction: $2,500 or actual damages (whichever is greater) plus fees against a provider or institution that intentionally violates the part, and $10,000 or actual damages plus fees against anyone who falsifies, forges, conceals, defaces, or obliterates a directive or a revocation without consent, or who coerces or fraudulently induces someone to give, revoke, or not give one.

Out-of-state documents are honored. Section 4676(a) validates a directive executed elsewhere "in compliance with the laws of that state or jurisdiction or of this state," and (b) lets a provider presume validity absent knowledge to the contrary.

What trips people up

A skilled-nursing-facility patient needs an extra signature, and it is not optional. Under § 4675(a), if you are a patient in a skilled nursing facility when you execute a written directive, that directive "is not effective unless a patient advocate or ombudsman ... signs the advance directive as a witness, either as one of two witnesses or in addition to notarization." Notarizing does not excuse it. The advocate or ombudsman must declare they are serving as a witness under this subdivision. The Legislature explained why in the statute itself: some patients in these facilities "are insulated from a voluntary decisionmaking role, by virtue of the custodial nature of their care."

Going electronic removes the witness option. People assume the two routes stay parallel online. Section 4673(b) requires notarization for an electronic directive and does not offer witnesses as an alternative.

Revoking your instructions is easy; revoking your agent is not. Telling a nurse you have changed your mind about treatment can revoke that instruction under § 4695(b)'s "any manner" standard. The same statement does not remove your agent — § 4695(a) requires a signed writing or personally informing the supervising health care provider.

One disinterested witness, not two. Section 4674(e) requires only "at least one of the witnesses" to be unrelated and not an estate taker. A spouse or child may serve as the other witness, provided they are not the agent and not in a § 4674(c) category.

No condition has to be certified for your instruction to matter. Because California requires no terminal-condition finding and no second physician, a limited instruction takes effect on the terms you wrote, with the primary physician making the capacity call under § 4658 unless your directive assigns it differently.

Common questions

Is a spoken instruction really binding on my doctor? Section 4670 authorizes it and § 4733 requires a provider to comply with "an individual health care instruction of the patient." The practical difficulty is proof, not validity — an oral instruction leaves no document for the next shift or the next facility, which is why the § 4800 registry and distributing copies of a written directive exist.

Do I need a lawyer or a notary to make this valid? Neither, if you use two qualifying witnesses on paper. The notary is one of two alternatives under § 4673(a)(3), and becomes mandatory only for an electronic directive under § 4673(b), or in addition to a required advocate or ombudsman signature for a skilled-nursing patient under § 4675.

Will my directive from another state work in California? Yes, if it complied with that state's law or with California's when executed (§ 4676(a)). A physician may presume it valid absent knowledge to the contrary (§ 4676(b)).

What happens if my hospital refuses to follow my instruction? It must promptly tell you or your decision-maker, immediately make all reasonable efforts to help transfer you, and keep caring for you until a transfer happens or proves impossible, with pain relief and palliative care continued throughout (§ 4736). An intentional violation exposes the provider or institution to at least $2,500 plus attorney's fees under § 4742(a).

Statutes and sources

All sections below are the current official text published by the California Legislative Counsel in its public bulk data release, section data timestamped 2026-07-27, retrieved 2026-08-01 from https://downloads.leginfo.legislature.ca.gov/. Each entry notes the operative amendment the official record assigns to that section.

• Cal. Prob. Code § 4670 — oral or written individual health care instruction; condition-limited instructions. Added by Stats. 1999, Ch. 658, Sec. 39, operative July 1, 2000.
• Cal. Prob. Code § 4673 — legal sufficiency of a written directive: date, signature or directed signature, notary or two witnesses; electronic directives requiring notarization and the seven digital-signature criteria. Amended by Stats. 2006, Ch. 579, Sec. 1, effective September 28, 2006.
• Cal. Prob. Code § 4674 — witness requirements, four disqualified categories, the two penalty-of-perjury declarations, the one-disinterested-witness rule, and the notary carve-out. Added by Stats. 1999, Ch. 658, Sec. 39, operative July 1, 2000.
• Cal. Prob. Code § 4675 — skilled nursing facility patient advocate or ombudsman witness requirement and identity-verification allowance. Added by Stats. 1999, Ch. 658, Sec. 39, operative July 1, 2000.
• Cal. Prob. Code § 4609 — definition of capacity. Amended by Stats. 2001, Ch. 230, Sec. 3, effective January 1, 2002. § 4657 — presumption of capacity affecting the burden of proof. Added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code § 4658 — primary physician makes the capacity and condition determinations unless the directive specifies otherwise. Added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code § 4701 — the optional statutory advance health care directive form, including the end-of-life and pain-relief choices. Amended by Stats. 2023, Ch. 171, Sec. 3 (AB 1029), effective January 1, 2024.
• Cal. Prob. Code § 4652 — five subjects the division does not authorize consent to. Added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code §§ 4617 and 4653 — artificial nutrition, hydration, CPR, and the mercy-killing, assisted-suicide, euthanasia, and natural-dying boundary. Section 4617 amended by Stats. 2023, Ch. 171, Sec. 1 (AB 1029), effective January 1, 2024; § 4653 added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code § 4677 — no provider, facility, or insurer may require or prohibit execution or revocation. Added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code §§ 4695, 4696, 4697, 4698 — revocation of instructions versus agent designation; duty to communicate a revocation; dissolution and remarriage; later conflicting directive. All added by Stats. 1999, Ch. 658, Sec. 39, operative July 1, 2000.
• Cal. Prob. Code §§ 4733, 4734, 4735, 4736 — duty to comply; conscience exceptions; medically ineffective care; and the inform, transfer, and continuing-care obligations on declining. All added by Stats. 1999, Ch. 658, Sec. 39, operative July 1, 2000.
• Cal. Prob. Code § 4676 — validity of directives executed in another jurisdiction and the provider's presumption of validity. Added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code § 4742 — statutory damages for intentional violation and for falsifying or coercing a directive. Added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code § 4800 — Secretary of State Advance Health Care Directive Registry. Amended by Stats. 2004, Ch. 882, Sec. 3, effective January 1, 2005.
• Cal. Prob. Code § 4731 and §§ 4802–4804 — medical-record notation and copy maintenance; registry revocation and later-directive duties; nonregistration and nonpriority rules. Added by Stats. 1999, Ch. 658, Sec. 39.
• Cal. Prob. Code § 4750 — directives effective free of judicial intervention. Added by Stats. 1999, Ch. 658, Sec. 39.