How to choose someone to make medical decisions if you cannot

This page is general information, not legal or medical advice. For your situation, talk with a free legal clinic.

What is an advance health care directive?

It is a written paper that speaks for you when you can't. In California it can do two main things:

1. Name your agent. This is the person who makes health care decisions for you if you can't make them yourself. The legal name for this part is a "power of attorney for health care."
2. Give instructions. You can write down what care you want or don't want, like how you feel about machines that keep you alive or about pain medicine.

You can do one part or both. The state form also has optional parts for organ donation and for naming your main doctor.

Why should I do this now?

Because emergencies don't give warning. Without a directive, your doctor or hospital may have to choose someone to speak for you. They may choose from your spouse or domestic partner, an adult child, a parent, an adult sibling, an adult grandchild, or another adult relative or close friend. California law does not rank those people. The person chosen must care about you, know your values and be available.

That can mean the person your family would least expect, or a fight between relatives at the worst moment. Writing it down now means your choice is the one that counts.

Who can make one?

Any adult (18 or older) who can make their own health care decisions.

The law that says who can sign a directive (Probate Code 4671) and who can't be your agent (Probate Code 4659) says nothing about immigration status or citizenship. If your situation is unusual, ask a free legal clinic. You don't need a Social Security number, a lawyer or a notary to make a valid directive.

Who should I choose as my agent?

Choose someone who:

• Will follow your wishes, even if they would choose differently
• Can stay calm and speak up to doctors
• Lives close enough, or can be reached fast by phone
• Knows you well: your faith, your values, what matters most to you
• Says yes when you ask

Who can't be your agent: your supervising doctor or other provider, a worker at the hospital or clinic where you get care, or a worker at a care home or residential care facility where you live. There is an exception for a worker who is your relative or registered domestic partner, or who works at the same place you do. Your supervising provider can never be your agent.

Name backups. The state form lets you name a first and a second alternate. They step in if your agent can't, won't or can't be reached.

If your agent is your spouse: a divorce or annulment cancels a former spouse's role as agent.

What can my agent do?

Your agent can only act once it is determined that you can't make your own decisions, unless your form says the agent can start right away. Your agent's power stops when you can decide for yourself again.

When your agent decides, the law says they must:

1. Follow your written instructions first
2. Then follow your other wishes they know about
3. If neither answers the question, choose what is best for you, keeping your values in mind

Your agent also gets the same right you have to see your medical records, unless your directive limits it.

How do I make it legal?

California law requires three things:

1. The date you sign it
2. Your signature. If you can't sign, another adult can sign your name for you, in front of you and at your direction.
3. Two witnesses or a notary. One of these is enough.

Rules for witnesses:

• Neither can be your agent.
• Neither can be your health care provider or work for your provider.
• Neither can run or work for a community care facility or a residential care facility for the elderly.
• At least one witness can't be related to you by blood, marriage or adoption, and can't be someone who would inherit from you. That witness signs an extra statement on the form.

A notary is optional. Two good witnesses are free. If you sign an electronic directive with a digital signature, it must be notarized.

Do I need a special witness?

Yes, if you live in a skilled nursing facility when you sign. Then a patient advocate or ombudsman must also sign as a witness, as one of your two witnesses or in addition to a notary. Without that signature, the directive does not take effect. Ask the facility how to reach the ombudsman.

What do I do after I sign?

• Make copies. Give one to your agent and your alternates, your doctor, your hospital or clinic, and family members who might be called in an emergency.
• Keep the original safe and easy to find. Tell people where it is. Don't lock it in a place no one can open.
• Talk about it. Sit down with your agent and go over your wishes. A form helps. A real conversation helps more.
• Register it (optional). The Secretary of State registry can share your information with your doctor, the public guardian or your legal representative when they ask. Registering does not make your directive valid or invalid. It is voluntary.

How to register: fill out Form SFL 461, Registration of Written Advance Health Care Directive, and mail it with a $10 fee to: Secretary of State, Advance Health Care Directive Registry, P.O. Box 942870, Sacramento, CA 94277-2870. You can attach a copy of your directive or just say where the original is kept. You can't register online.

How do I change or cancel it?

You can change your mind any time you are able to make your own decisions.

• To cancel your agent: put it in a signed writing, or tell your supervising doctor or provider in person.
• To cancel any other part: you can do it any way that shows you mean it, such as tearing up the form or telling your doctor.

Best practice: make a new form, date it, sign it properly, and give the new copies to everyone who had the old one. If you registered the old one, file an update with the registry.

Can I name someone without a form?

Yes, for a short time. If you are in the hospital or under a doctor's care, you can tell your supervising provider out loud that you want a certain adult to make decisions for you. The provider must write it in your chart. This only lasts for the current treatment, illness or hospital stay, or 60 days, whichever ends first. A written directive lasts much longer.

Can I plan for mental health care?

Yes. California law allows a psychiatric advance directive, a paper that records your mental health treatment choices before a crisis. It must be signed following the same rules as an advance health care directive. You can also use your regular directive to name someone to make mental health care decisions for you if you can't, and to write down what treatment has helped or hurt you before.

Talk with your counselor or psychiatrist as you write it. See Mental health care without fear.

Is this the same as a POLST?

No. A POLST is a medical order for people who are seriously ill. You fill it out with your doctor, and it tells emergency workers and hospitals your wishes about life sustaining treatment. An advance health care directive is for any adult, sick or well. Many seriously ill people have both. Ask your doctor.

What about my children?

An advance health care directive covers your own health care. It does not give anyone the right to care for your children. If you are a parent worried about being detained or deported, see Make a family preparedness plan and How to fill out the California Caregiver's Authorization Affidavit.

What mistakes should I avoid?

• Using your agent or your doctor as a witness
• Using two relatives as witnesses (at least one must be unrelated and not an heir)
• Forgetting to date the form
• Naming someone who doesn't know they were named
• Signing and then hiding it where no one can find it
• Leaving an old copy at the hospital after you change it
• Paying someone hundreds of dollars for a blank form. The state form is free.

Common questions

Do I need a lawyer? No. Many people fill out the form on their own. If your situation is complicated, a free legal clinic can review it.

Can my agent be someone in another country? The list of people who can't be your agent (Probate Code 4659) says nothing about where the agent lives. But your agent must be reachable when doctors need a decision. Pick someone who can answer the phone fast, and name a local backup.

Is my directive good if I move to another state? This page covers California. If you move, check the new state's rules.

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Your doctor's office, hospital or clinic: ask whether they have the form or a social worker who can help
• Legal Aid Society of San Mateo County: (650) 558-0915
• Bay Area Legal Aid advice line: 1-800-551-5554
• Community Legal Services in East Palo Alto: (650) 326-6440
• California Secretary of State Registry: (916) 653-6814
• 211: dial 211 for local legal and senior services. 211 is free and open 24/7 in many, but not all, California counties (211 California)

The three legal aid groups above serve San Mateo County and nearby areas. Outside the Bay Area, ask 211 or your county's senior services office for a free legal clinic.

Is there a checklist I can print?

Yes. Use it on the day you sign.

Making this choice is an act of love for the people who would have to decide for you.