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Over the years the California legislature has wrestled with the problem of how to handle the situation where a person is unable to make decisions regarding his or her own medical care and treatment. It was decided to use a legal document which allows a person to appoint an agent to make these decisions if the person is physically or mentally unable to do so.
This document was formerly called a "general durable power of attorney for health care decisions." Over the years it has been revised. Many people also have signed other documents such as a "living will" and/or "health care directive." Because of the confusion, in 2001 California law was changed to incorporate the various documents into a single document called an "Advance Health Care Directive."
There are a number of different types of forms available. One is printed in the California Probate Code, under Probate Code section 4701. Others are duplicates of this Probate Code form or similar forms and are sold and distributed by the California Medical Association, health care providers, local medical associations, some physicians, and stationery outlets. Many attorneys devise their own form and use it for their clients. Any of the forms can be used.
It is also possible to devise one's own form and customize it for the person signing it. The older "General Durable Power of Attorney for Health Care Decisions" form which was printed starting in 1992 is still valid, and it is not necessary to use the new form. However, copies of this form printed prior to 1992 should be reviewed since they probably had a seven year expiration date, which was removed from the later and current forms.
The form allows the principal (the person who signs it) to name only one agent at a time to make medical decisions. If a parent has three children, the three children cannot be named jointly. They can be named in some order, but only one at a time can act. The power of attorney comes into play if, in the doctor's opinion, the principal is not able to make medical decisions.
The agent acting under this signed document has the legal authority to examine the principal's medical records, consent to or withhold consent to medical treatment, consent to having the principal taken off of a life support system if in the doctor's opinion the principal would not likely live if taken off the machine, and, at death, consent to donation of body organs for transplant purposes, and arrange for the funeral, burial or cremation. The agent may also request an autopsy at death if the agent wishes one.
All of the above are subject to the principal's written directions. These can be customized on the form. Many of the detailed options on the nine page form may be omitted, leaving these options available to the agent.
The form either requires two witnesses to the principal's signature or, alternatively, the notarization of the principal's signature. An agent may not be the owner or manager of a convalescent hospital, and the agent may not be a doctor unless the doctor is related to the principal by blood or marriage. If the principal is a patient in a convalescent hospital, there also must be a witness who is a state certified ombudsman for the facility. This ombudsman must then discuss the document with the principal and must be a witness to it before it is valid.
Photocopies of the document are treated as originals and can be presented to doctors, hospitals, and other health care persons or organizations.
© Milton Berry Scott, A Professional Corporation, 1998-2005