CALIFORNIA ADVANCE HEALTH CARE DIRECTIVE
(Living Will & Durable Power of Attorney for Health Care)
[// GUIDANCE: This comprehensive template is drafted to satisfy Division 4.7 of the California Probate Code (Cal. Prob. Code § 4600 et seq.). Sections most commonly customized by counsel appear in brackets. Replace bracketed text with client-specific information and delete brackets prior to execution.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
1.1 Title. California Advance Health Care Directive (“Directive”).
1.2 Parties.
(a) “Principal”: [PRINCIPAL FULL LEGAL NAME], residing at [ADDRESS];
(b) “Primary Agent”: [PRIMARY AGENT NAME], residing at [ADDRESS];
(c) “Alternate Agent(s)”: [ALTERNATE AGENT #1 NAME]; [ALTERNATE AGENT #2 NAME] (if any).
1.3 Recitals.
A. Principal is of sound mind and intends this Directive to:
(i) appoint one or more agents to make health-care decisions when Principal lacks capacity; and
(ii) state binding instructions regarding life-sustaining treatment, pain relief, organ donation, and related matters.
B. This Directive is made in consideration of Principal’s fundamental right to control medical treatment and pursuant to the California Health Care Decisions Law (Cal. Prob. Code § 4600 et seq.).
1.4 Effective Date. This Directive becomes effective on the date executed below and remains in effect until revoked pursuant to Section 9.2.
1.5 Governing Law. This Directive is governed by and construed in accordance with the laws of the State of California, without regard to conflict-of-laws principles.
2. DEFINITIONS
“Adult” means an individual 18 years of age or older.
“Agent” means the person designated in Section 3.1 to make health-care decisions for Principal.
“Capacity” means the ability to understand the nature and consequences of a health-care decision and to make and communicate such decision, as determined under Cal. Prob. Code § 4609.
“End-Stage Condition” means an incurable or irreversible condition that will result in death within a relatively short time and for which life-sustaining treatment would only postpone the moment of death.
“Life-Sustaining Treatment” means any medical intervention that, in the judgment of the attending physician, serves only to prolong the dying process and not to cure or substantially improve the underlying condition.
“Primary Physician” means the physician designated pursuant to Section 3.4 or, if none is designated, the physician who has primary responsibility for Principal’s health care.
[// GUIDANCE: Add or delete definitions to match customized provisions.]
3. OPERATIVE PROVISIONS
3.1 Appointment of Agent. Principal appoints the Primary Agent named in Section 1.2(b) to make health-care decisions on Principal’s behalf when Principal lacks Capacity.
3.2 Authority of Agent.
(a) Scope. Agent’s authority includes, without limitation:
(i) consenting to, refusing, or withdrawing any care, treatment, service, or procedure;
(ii) approving pain-relief and comfort-care measures;
(iii) hiring and discharging health-care providers;
(iv) accessing Principal’s medical records; and
(v) making post-death decisions regarding autopsy, organ donation, and disposition of remains, subject to Sections 3.5 and 3.6.
(b) Limitation. Agent shall act consistently with Principal’s express instructions herein and any previously communicated wishes.
3.3 Agent Hierarchy. If the Primary Agent is unable, unwilling, or legally disqualified to serve, authority passes in the numerical order listed under Section 1.2(c).
3.4 Designation of Primary Physician (Optional). Principal designates [PHYSICIAN NAME, LICENSE NO.] as Primary Physician. If that physician is unavailable, the attending physician is deemed the Primary Physician.
3.5 Health-Care Instructions (Living Will).
(a) Life-Sustaining Treatment. If Principal is in an End-Stage Condition or permanent unconscious state with no reasonable expectation of recovery, Principal instructs:
☐ Withhold or withdraw Life-Sustaining Treatment.
☐ Provide Life-Sustaining Treatment.
☐ Provide Life-Sustaining Treatment for a time period of [] days, then reassess.
(b) Artificial Nutrition & Hydration.
☐ Withhold or withdraw.
☐ Provide.
☐ Provide for [] days, then reassess.
(c) Pain Relief. Principal directs that adequate pain relief be administered even if it may hasten death.
(d) Pregnancy (if applicable). [INSTRUCTIONS].
3.6 Anatomical Gifts. Principal:
☐ makes no anatomical gift.
☐ donates the entire body for purposes of organ transplantation, therapy, research, and education.
☐ donates the following organs/tissues only: [SPECIFY].
3.7 Guardian Nomination. If a court decides a guardian must be appointed, Principal nominates Agent named in Section 1.2(b) to serve, pursuant to Cal. Prob. Code § 4621.
3.8 Compensation & Reimbursement. Agent serves without compensation but is entitled to reimbursement for reasonable expenses incurred in good faith.
3.9 Reliance by Third Parties. Any person, institution, or physician may rely on a photocopy or electronically transmitted copy of this Directive to the same extent as an original.
4. REPRESENTATIONS & WARRANTIES
4.1 Principal represents and warrants that:
(a) Principal is an Adult, of sound mind, and executing this Directive voluntarily;
(b) All information provided herein is accurate;
(c) No undue influence or duress has been exerted; and
(d) Principal understands the legal effect of this Directive.
4.2 Survival. The representations and warranties in this Section survive execution and remain effective for the term of the Directive.
5. COVENANTS & RESTRICTIONS
5.1 Agent’s Fiduciary Duties. Agent shall:
(a) act in accordance with Principal’s known wishes and best interests;
(b) avoid conflicts of interest;
(c) maintain confidentiality of medical information; and
(d) keep reasonably detailed records of decisions made.
5.2 Monitoring. Any interested person defined in Cal. Prob. Code § 4766(b) may petition a court of competent jurisdiction to review Agent’s performance.
5.3 Notice of Inability to Act. Agent shall promptly notify Alternate Agent(s) and Primary Physician if Agent becomes unable or unwilling to serve.
6. DEFAULT & REMEDIES
6.1 Events of Default. The following constitute defaults:
(a) Agent’s breach of fiduciary duty;
(b) Agent’s incapacity, resignation, or death;
(c) Judicial determination that Agent is unfit.
6.2 Cure & Removal. Interested persons may deliver written notice specifying the alleged default. If not cured within five (5) days, a petition for removal and appointment of a successor agent may be filed under Cal. Prob. Code § 4766.
6.3 Remedies. Courts may:
(a) enjoin Agent actions;
(b) remove Agent;
(c) award reasonable attorney fees and costs to prevailing parties.
7. RISK ALLOCATION
7.1 Indemnification of Health-Care Providers. Principal agrees that any health-care provider, institution, or professional (“Provider”) that acts in good-faith reliance on this Directive shall be indemnified and held harmless by Principal’s estate to the fullest extent permitted by law (“provider_protection”).
7.2 Limitation of Liability. No Provider or Agent acting in good faith and in substantial compliance with this Directive shall incur civil or criminal liability for such action (“good_faith_standard”). Nothing herein limits liability for gross negligence, willful misconduct, or bad faith.
7.3 Insurance. [OPTIONAL] Principal maintains health insurance under policy no. [___]. This Directive does not alter coverage rights.
7.4 Force Majeure. Performance of obligations under this Directive is excused to the extent rendered impossible by acts of God, war, terrorism, or governmental action.
8. DISPUTE RESOLUTION
8.1 Governing Law. See Section 1.5.
8.2 Forum. Not applicable; matters arising under this Directive shall be heard in any court of competent jurisdiction within the State of California.
8.3 Arbitration. Not applicable.
8.4 Jury Waiver. Not applicable.
8.5 Injunctive Relief. Because irreparable harm may result from non-compliance with Principal’s health-care instructions, courts are authorized to issue temporary, preliminary, and permanent injunctive relief to enforce this Directive (“healthcare_directive”).
9. GENERAL PROVISIONS
9.1 Amendment. Principal may amend this Directive at any time in writing, signed and either notarized or witnessed in accordance with Section 10.3.
9.2 Revocation. Principal may revoke this Directive at any time by:
(a) a signed, dated writing;
(b) personally informing the attending physician or Agent of the intent to revoke;
(c) physically destroying all known executed originals; or
(d) executing a subsequent advance directive.
9.3 Assignment. The authority granted herein is personal to the Agent and may not be assigned or delegated except as expressly provided.
9.4 Severability. If any provision is held invalid, the remainder shall be enforced to the maximum extent possible.
9.5 Integration. This Directive constitutes the entire understanding regarding the subject matter and supersedes all prior oral or written directives.
9.6 Counterparts & Electronic Signatures. This Directive may be executed in counterparts, each of which is deemed an original. Signatures transmitted by electronic means shall be deemed original for all purposes.
10. EXECUTION BLOCK
10.1 Principal’s Signature.
I, [PRINCIPAL FULL LEGAL NAME], declare under penalty of perjury under the laws of the State of California that I am the person identified herein, I have read this Directive, and the facts stated in it are true and accurate.
Date: __, 20 Signature: __________
[PRINCIPAL NAME]
10.2 OPTION A – NOTARY PUBLIC
State of California )
County of [_] )
On _/_/20___, before me, [NOTARY NAME], a Notary Public, personally appeared [PRINCIPAL NAME], who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to this instrument, and acknowledged executing the same.
______
Notary Public
My commission expires: ___
10.3 OPTION B – TWO (2) ADULT WITNESSES (See Cal. Prob. Code § 4673)
[// GUIDANCE: Use either the notary section (10.2) or witness section (10.3), not both, unless desired for redundancy.]
I declare under penalty of perjury under the laws of the State of California that:
1. I am an Adult and not the person appointed as Agent by this document;
2. I am not a health-care provider, nor an employee of a health-care facility caring for the Principal;
3. I am not related to the Principal by blood, marriage, or adoption and I am not entitled to any portion of the Principal’s estate; and
4. I witnessed the Principal sign or acknowledge this Directive.
| Witness #1 | Witness #2 | |
|---|---|---|
| Name & Address | [______] | [______] |
| Signature & Date | __ | __ |
| Telephone | [______] | [______] |
[// GUIDANCE: Once executed, provide copies to the Agent(s), Primary Physician, and any health-care institution likely to provide treatment. Recommend uploading a PDF to the California Secretary of State’s Advance Health Care Directive Registry, if desired.]