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Health
Instrument: Power of Attorney for Health Care (POAHC)
What is it for?
The “power of attorney for health care” (POAHC) grants an adult (the “principal”) to give another (the “agent”) the power to make decisions relating to the principal’s health care and personal care if the principal lacks the capacity to make such decisions.
What does it do?
The POAHC is one kind of advance health care directive, and it may or may not include individual health care instructions. Cal. Prob. Code § 4671(a).
The POAHC authorizes the agent to make any health care decisions that the principal would be permitted to make if the principal had capacity to do so, unless the POAHC puts limits on the decisions that the agent may make. Cal. Prob. Code § 4683(a). The POAHC may also authorize the agent to make personal care decisions such as determining where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment. Cal. Prob. Code § 4671(b).
The agent must make health care decisions in accordance with the principal’s individual health care instructions, if any were included in the POAHC, as well as any other wishes of the principal to the extent known to the agent. Otherwise, the agent must make decisions in accordance with the agent’s determination of the principal’s best interest. In determining the principal’s best interest, the agent must consider the principal’s personal values to the extent known to the agent. Cal. Prob. Code § 4684.
An agent 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 POAHC, then the agent’s decision no longer controls. Cal. Prob. Code § 4689.
How does one make it?
The POAHC must include both the date of execution and the patient’s signature (either by the patient’s own hand or by another adult in the patient’s presence and at the patient’s direction). It must also be either notarized or witnessed by two eligible adults. Cal. Prob. Code §§ 4674 & 4680.
When does it come into effect?
Unless otherwise provided in the POAHC, the authority of an agent becomes effective only on a determination that the principal lacks capacity. Cal. Prob. Code § 4682. Although a principal may be determined to be either wholly or partially incapacitated, California’s POAHC statute does not specify how an incapacity determination must be made. Cal. Prob. Code § 4690.
How long does it last?
Generally, the agent’s authority continues for as long as the principal’s period of incapacity. Unless otherwise provided in the POAHC, the authority of an agent ceases to be effective on a determination that the principal has recovered capacity. Cal. Prob. Code § 4682.
How does one end it?
Unless the POAHC specifies a termination date, a principal having capacity may revoke the designation of the agent only by a signed writing or by personally informing the principal’s supervising health care provider. However, a principal may revoke any other part of a POAHC, such as health care instructions, at any time and in any manner that communicates an intent to revoke. Cal. Prob. Code § 4695.
A POAHC which conflicts with an earlier POAHC revokes the earlier POAHC to the extent of the conflict. Cal. Prob. Code § 4698.
What does an example look like?
California does not have a statutory POAHC form, but the California’s Office of the Attorney General provides a sample form here.
What else would one know?
No health care provider, health care service plan, health care institution, or insurer may require or prohibit the execution or revocation of a POAHC as a condition for providing health care, admission to a facility, or furnishing insurance. Cal. Prob. Code § 4677.
Last update November 2022
General
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to appoint another (the “agent” or “attorney-in-fact”) to act on the principal’s behalf with regard to the principal’s property, legal, or other matters, such as the principal’s education.
What does it do?
The POA lets a principal grant authority to an agent to act on the principal’s behalf with respect to a broad range of matters. The agent may be granted authority with regard to the principal’s property, personal care, or any other matter. Cal. Prob. Code §§ 4010 & 4450 et seq.
For the POA be “durable,” which means that the agent’s authority continues during a period when the principal lacks capacity, the POA must contain the phrases “This power of attorney shall not be affected by subsequent incapacity of the principal”; “This power of attorney shall become effective upon the incapacity of the principal.”; or similar words that show the principal’s intent for the POA to survive a period of incapacity. Cal. Prob. Code § 4124.
In making decisions for the principal, the agent must act solely in the interest of the principal and avoid conflicts of interest. Cal. Prob. Code § 4232. The agent must also keep in regular contact with the principal, communicate with the principal, and follow the principal’s instructions, if any. Cal. Prob. Code § 4234.
Third persons must generally accept decisions made by the agent as if the principal had made them. Cal. Prob. Code § 4234. They are not liable for doing so if the POA is presented by the agent, the POA appears to have been executed validly, and the POA is either notarized or witnessed by two adults. Cal. Prob. Code § 4303. They may be liable for the & 4406.
How does one make it?
A POA must be in writing, dated, and signed either by the principal or in the principal’s name by another adult in the principal’s presence and at the principal’s direction. The POA must also be either notarized or signed by at least two adult witnesses. Cal. Prob. Code §§ 4120-22.
When does it come into effect?
A POA can state that the agent’s authority begins either immediately upon execution, or at a specified future time or on the occurrence of a specified future event or contingency, including, but not limited to, the principal’s incapacity. In any of the latter cases, the POA is considered to be a “springing” POA. Cal. Prob. Code § 4030.
If the agent’s authority begins upon the principal’s incapacity, the POA itself may specify one or more persons who have the power to determine that the principal lacks capacity. In this case, the agent’s authority comes into effect when the named person(s) declare in writing under penalty of perjury that the principal lacks capacity. Cal. Prob. Code § 4405.
How long does it last?
The agent’s authority generally lasts until the POA’s purpose is fulfilled; the principal revokes the agent’s authority; the principal dies or is incapacitated (unless the POA is durable); the agent is removed by a court; the agent resigns, dies, or is otherwise incapacitated. Cal. Prob. Code § 4152.
How does one end it?
A principal may revoke a POA by using a method of termination contained in the terms of the POA document or by a separate written revocation. Cal. Prob. Code § 4151.
A principal must inform the agent for the revocation to have effect, either in writing or orally, unless the POA requires a certain method of communication. Cal. Prob. Code § 4153(a)(2).
What does an example look like?
A sample POA form is available at Cal. Prob. Code § 4401. Note that any printed durable POA form other than this statutory form must contain the “notice” provided at Cal. Prob. Code § 4128. The Superior Court of California also provides a sample form, which is available here.
What else should one know?
California’s POA is based on the Uniform Power of Attorney Act.
Last update November 2022