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What is a Living Will?

Living wills are legal documents that contain future healthcare decisions regarding end-of-life treatments. The document takes effect when you are incapable of making rational choices. A living will allows you to express your wishes regarding the provision or withdrawal of life-sustaining treatments like ventilators, dialysis, or gastrostomy tubes.

Note: Living wills could exist as oral or written agreements directed to the healthcare provider.

The California Probate Code Sections 4800 to 4805 cover guidelines on living wills and other advanced health care directives.

What are the legal requirements for creating living wills in California?

Per Section 4673 of the Probate Code, living wills are legal documents, provided they fulfill these criteria:

  • They contain instructions about your end-of-life care options
  • They contain your personal information and signature
  • They contain the signatures of adult witnesses. The witnesses must fulfill these legal requirements. Per Section 4675, one of the witnesses must not have any relationship with the patient. Also, the witnesses must not be:
    • The patient's healthcare provider or any employee of the provider.
    • The owner or employee of a senior citizen residential care facility.

Note: The Department of Aging may designate a patient advocate as a witness if the patient is in a nursing facility. Legally approved living wills created in other states are also legal in California.

Advance Directive vs. Living Will: What’s the Difference?

In California, advance directives are a broad term for instructions that take effect when the principal is mentally unfit to make decisions. For example, California's health care advance directive covers medical power of attorney and living wills.

Living wills are a form of advance directive. However, these documents are distinct since they only apply to end-of-life medical situations.

Why Would You Need Living Wills in California?

Living wills are legal-binding documents that provide these benefits:

  1. Living wills protect loved ones from making difficult decisions.
    Family members are often conflicted about the best end-of-care treatment for their loved ones. This creates conflicts due to differences in opinions. However, you can avoid these ugly situations by setting up a living will. A living will is legally binding and supersedes your loved one’s opinions.
  2. Living wills help you choose your preferred medical treatment
    Certain medical treatments may contradict your beliefs or personal values. In some cases, you may be allergic to some medications. By setting up a living will, you get to outline your preferences.
  3. It protects your family from dealing with medical debts.
    Family members are often burdened with these huge bills. Sometimes, the patient's estate is used to settle these bills. You can set up a living will to withhold life-sustaining treatment to avoid accumulating medical debts.
  4. It helps you authorize future medical treatments.
    Healthcare providers may require authorization before providing certain medications. However, with a living will, you may be able to bypass this requirement to access the best treatments.

Potential Risks of Having a Living Will in California

Living wills also have the following downsides:

  1. It may limit your future choices
    Living wills may contain instructions that do not align with the current circumstance. For example, the will may direct physicians to withhold life-sustaining treatments even though the patient has a high survival rate.
  2. Healthcare providers may not comply with the directive
    Most healthcare providers have written policies on advanced directives. The provider may overrule the living will if it contradicts their policies. Also, they may refuse the directive if it violates state or federal statutes.
  3. Healthcare providers may not have a copy of the living will

Living wills are effective if your attending physician or healthcare facility knows it. For this reason, you must notify the provider and other concerned parties about the will.

In What Situations Will I Need a Living Will?

In California, you need a living will to prepare for end-of-life or terminal conditions. A will protects your choices and prevents healthcare providers or agents from exploiting you. For instance, healthcare providers may sign you up for organ donation without your consent. They may also choose to discontinue life-sustaining treatments in terminal situations. With your living will, you have more control when you cannot make decisions.

When Does a Living Will take effect in California?

In California, a living will take effect immediately if you are incapacitated. The healthcare provider will determine if the patient is mentally incapable before enforcing the will. Note that the attending physician must be aware of the living will.

What are the legal requirements for the start and duration of a living will in California?

Under the California Probate Code, a living will starts after it is notarized and signed in the presence of two witnesses. In addition, you can officially start a living will by registering it with the Advance Health Care Directive Registry. It is the agency's responsibility to provide the form upon request to the healthcare provider or legal guardian. To register your living will, you must follow these steps:

  1. Complete a copy of the Registration of Written Advance Health Care Directive.
  2. Attach a copy of the living will
  3. Create a separate form that contains your name, address, birthdate, and place.
  4. Include a valid government-issued ID card
  5. Attach a $10 check payable to the Secretary of State
  6. Mail all the aforementioned files to:

Secretary of State
Special Filings Unit
P.O. Box 942870
Sacramento, CA 94277-2870
Phone: (916) 653-3984

Living wills end when the principal becomes mentally fit or dies. You can also specify the duration of a living will by setting a timeframe when drafting it. For example, you may state that the will starts six months into an end-of-life situation.

What factors affect the duration of a living will in California?

Revocation, state or federal laws, and healthcare compliance may affect a living will's duration. For example, California state laws may revoke living wills if the principal is pregnant.

Tips for specifying the start and duration of living wills in California

You can specify the start and duration in living wills by including the date when the living will takes effect. This is possible when you are diagnosed with a progressive terminal condition like cancer or renal failure.

How to Get Living Wills in California

In California, you can create a living will using the state-approved form. You can also amend the form by adding additional data to suit your preferences.

Per state laws, living wills are legal under these conditions:

  • The principal must be mentally fit at the time of creating the will.
  • The principal and two adult witnesses must sign the document. One of the witnesses must not have a direct or indirect relationship with the principal. Sections 4674 to 4675 outline the requirements and guidelines for witnesses in a living will. For instance, each witness must make declarations outlined in state law.

It is also legally required to notify your attending physician, healthcare provider, or concerned parties. The healthcare provider will record the living as part of your medical record. For online living directives that require electronic signatures, the signature must fulfill the requirements listed under Section 4673.

Note that no costs are generally incurred in California for creating and executing a living will. However, you may pay a $10 fee to register the directive with the Secretary of State. Estate planning attorneys may charge you fees for drafting or creating living wills.

In addition to official resources, third-party sites may feature templates for living wills. For example, California law firms may feature online fillable forms for living will forms.

Preparing a Living Will: How to Write One in California?

California's Probate Code provides a template for living wills. The template contains required and optional sections. It is compulsory to fill out sections two and five on the living will template. In these sections, you must provide the following information:

  • Your name, signature, and other personal details, like your birthdate and address,.
  • The witnesses’ names, declarations, and signatures
  • The designated physician’s name
  • Your preferred end-of-life procedures.

In contrast, sections three, four, and six are optional and include the following fields:

  • Organ donation directives
  • Appointment of physicians as the principal’s representatives.
  • Appointment of ombudsman or patient advocate.

What should I include in a living will form?

Your living will must contain the following details:

  • The principal and witnesses’ personal information and signatures
  • The witnesses’ declaration. You will find the declarations under Sections
  • Your preferred medical treatment. Include additional information, such as the need for painkillers or antibiotics.

Tips for accurately completing a living form in California

You can create an effective living will via these tips or strategies:

  • Notarize the directive. A notarized form is undisputable and legally binding. Register the form with the state’s Advanced Health Care Directive Registry.
  • Use concise and clear words in the form. Avoid using ambiguous statements when describing your preferred treatments. You may hire an estate planning attorney to draft the will.
  • Notify all concerned stakeholders about the directive. A living will is only effective if your healthcare provider and loved ones are aware of it. Draft the document and have them examine it to spot errors.

How do I execute and record a living will in California?

Here’s an example of how to execute and record living wills: Jamie was diagnosed with terminal, late-stage pancreatic cancer. According to his physician, he has less than eight months to live. So, Jamie creates a living will and states an intent to prolong his end-of-life treatment through assisted breathing and nutrition machines. He executes the will by signing it along with two adult witnesses. Next, he records the will by notifying his attending physician and loved ones.

How often must I update my Living Wills?

You must update your living will at least every four years or life-changing moments. In this context, life-changing moments could include a diagnosis of a terminal illness, relocation, marriage, or increased finances.

In California, you can update a living will through these steps:

  • Create a new living will and sign it alongside two adult witnesses
  • Notarize the will and notify all concerned parties, like the healthcare provider and loved ones. The healthcare provider will file the new directive into your medical record. Furthermore, you can also file the new directive with the Advanced Health Care Directive Registry.

You may update your living will after making major life decisions. Some may update their living will after moving to a new state or country. In some cases, you may update the will along with other advance directives.

It is quite easy to forget about updating a living will. For this reason, you may update it while filing your annual tax returns. There are also online scheduling apps to help you set specific dates to update the will.

Do I Need a Lawyer to Create a Living Will in California?

You don’t need a lawyer to create living wills in California. However, it is recommended to hire a legal expert, such as an estate planning attorney, to help you draft the will. Note that the attorney will charge fees for consultation and drafting the will.

What’s the Difference between a Living Will and a Medical Power of Attorney?

Under California laws, living wills and medical powers of attorney are different in these aspects:

  • Living wills are only effective for end-of-life decisions, whereas medical POAs are effective for all medical conditions.
  • You do not need to appoint an agent in a living will. However, you must appoint an agent to legalize a medical POA.
  • Furthermore, you must set an executive date when drafting a medical power of attorney. However, a living will does not require a specific execution date.

Can a Living Will Be Broken?

You can break or revoke a living will in California. The state laws require you to notify all concerned parties about the revoked will.

How can I revoke a living will in California?

Per California law, you can revoke a living will through these options:

  • By creating a written or oral statement to revoke the will and notifying all concerned parties.
  • By creating a new living will that conflicts with the previous one
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