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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 I: Supported Decisionmaking Agreement
What is it for?
A “supported decisionmaking agreement” (SDMA) is an agreement that is written in plain language and that an adult with a disability enters into with one or more supporters, who are responsible for helping the adult with a disability to make life decisions while respecting their self-determination. Cal. Welf. & Inst. Code § 21001(c)-(e). Supported decisionmaking “offers adults with disabilities a flexible way to maintain autonomy and decisionmaking authority over their own lives by developing and maintaining voluntary supports to assist them in understanding, making, communicating, and implementing their own informed choices.” Cal. Welf. & Inst. Code § 21000(e).
What does it do?
The SDMA describes the decision-making assistance that each supporter may provide the adult with a disability within a wide range of areas, including day-to-day health, safety, welfare, and social and financial affairs, unless otherwise determined through legal proceedings. Cal. Welf. & Inst. Code § 21000(a).
The kinds of assistance that supporters may provide, unless otherwise stated in the SDMA, include:
- helping the adult with a disability obtain and understand information related to a life decision,
- communicating the decision to others, and
- assisting the adult with a disability to ensure their preferences and decisions are honored. Cal. Welf. & Inst. Code § 21003 (West)
The SDMA gives the adult with a disability the right to have supporters, or any other adult they wish, to participate “in any meeting or discussion, or to participate in any written communication.” This includes individual planning meetings for services, care or discharge, as well as meetings with providers of healthcare, residential, or long-term services and supports, and communications with a bank, financial institution, or financial planner.” Cal. Welf. & Inst. Code § 21004(a). A third party can only refuse to allow the presence of a supporter or other adult if the third party has good reason to believe that this person is defrauding, coercing, abusing or taking other actions that the third party is required to report to a protective agency. Cal. Welf. & Inst. Code § 21004(c).
Supporters who enter into an SDMA are responsible for:
- supporting and implementing the direction, will, and preferences of the adult with a disability;
- respecting the values, beliefs, and preferences of the adult with a disability;
- acting honestly, diligently, and in good faith within the scope of their supporter role; and
- keeping information about the adult with a disability confidential, unless the adult with a disability specifically allows its disclosure. Cal. Welf. & Inst. Code § 21002(c).
Supporters, however, may not coerce an adult with a disability and they may not assist an adult with a disability with any life decision where they have a conflict of interest . Also, they may not “make decisions for, or on behalf of, the adult with a disability” or “sign documents on behalf of the adult with a disability.” Nor may supporters obtain information about the adult with a disability unless that information is related to a life decision that the supporter is assisting the adult with a disability with. Cal. Welf. & Inst. Code § 21002(d).
Last, an adult with disability who enters into an SDMA can make decisions independently of the supporters described in the SDMA. Also, the SDMA cannot be used by a court or other entity as evidence of incapacity. Cal. Welf. & Inst. Code § 21003(b).
How does one make it?
The SDMA must be written in plain language accessible to the adult with a disability and signed voluntarily by the adult with a disability and their supporters. The SDMA may include images, be read aloud, or be video or audio recorded, in addition to the written version. Cal. Welf. & Inst. Code § 21001(d).
The SDMA must list the decision-making areas in which the adult with a disability requests support and in which each supporter agrees to provide support. The SDMA must also include information for the adult with a disability about their right to file a report under the Elder Abuse and Dependent Adult Civil Protection Act. The SDMA must also list any other SDMAs or other documents relating to the adult with a disability’s decision-making, such as powers of attorney, authorizations to share medical or educational information, authorized representative forms, or representative payee agreements. Last, the SDMA must state that each supporter is eligible to serve under California’s SDMA law. Cal. Welf. & Inst. Code § 21005(a).
The SDMA must be signed by the adult with a disability and each supporter in the presence of either two adult witnesses or a notary public. Cal. Welf. & Inst. Code § 21005(b).
The SDMA must be reviewed every two years and updated as needed. The updated SDMA must also be signed by the adult with a disability and each supporter in the presence of either two adult witnesses or a notary public. Cal. Welf. & Inst. Code § 21005(c).
When does it come into effect?
Unless specified otherwise, the SDMA comes into effect immediately upon signing.
How long does it last?
The SDMA remains in effect for the life of the adult with a disability unless it is revoked by the adult with a disability or all supporters, or all supporters become ineligible to serve as supporters under California’s SDMA law, such as, for example, if the adult with a disability makes a report of fraud or abuse. Cal. Welf. & Inst. Code § 21006(a).
How does one end it?
Either the adult with a disability or any supporter can end their participation in the SDMA by notifying all other parties either orally in writing of their intent to end their participation. The adult with a disability can also end their SDMA by any conduct intended to express an intent to end the SDMA, such as by destroying the SDMA or directing another adult to destroy the SDMA in their presence. Cal. Welf. & Inst. Code § 21006(a)(2).
However, if the SDMA involves more than one supporter, and a supporter ends their participation in the SDMA, the SDMA remains in effect with regard to the remaining supporters. Cal. Welf. & Inst. Code § 21006(b).
What does an example look like?
California’s SDMA law does not include a specific form. The Ventura County Bar Association has developed a sample SDMA template that is available here.
What else should one know?
The California Health and Human Services Agency is responsible for developing educational, information, and training materials on SDMAs in consultation with key stakeholders, including persons with disabilities, family members of persons with disabilities, and advocates for the rights of persons with disabilities. Cal. Welf. & Inst. Code § 21008.
Last update February 2025
Instrument II: 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