Understanding the Medical Power of Attorney: Definition and Purpose

Unexpected events like an accident or stroke can cause a person to lose their mental capacity or become too ill to speak for themselves. A medical power of attorney, a common advance directive, serves as a proactive measure for addressing such situations.

Beyond articulating a person's healthcare preferences in writing, a medical power of attorney details end-of-life instructions, ensuring that one's healthcare choices are respected even in emergency or critical scenarios.

This guide outlines the legal requirements and steps for executing a medical power of attorney in California.

What is a Medical Power of Attorney?

A medical power of attorney (MPOA) is a legal form designating a person, called the attorney-in-fact or agent, to make healthcare decisions on another's behalf. It is referred to as an Advance Health Care Directive (AHCD), Durable Power of Attorney for Health Care (DPOA-HC), or Health Care Power of Attorney in California.

Unless expressly limited, a medical power of attorney allows an agent to make all healthcare decisions for the principal (the individual executing the MPOA). This may include selecting the medical facilities or physicians the principal will use and determining who can see the principal's medical information.

California requires principals to adhere to specific legal requirements when creating medical powers of attorney, as outlined in Cal. Prob. Code §§ 4600 - 4806 (the Health Care Decisions Law). These include the principal having the "capacity" to enter a power of attorney relationship and the agent being 18 years of age or older.

Why Would You Need a Medical Power of Attorney in California?

Establishing a medical power of attorney is a crucial aspect of advance care planning (ACP) in California. At any time, at any age, a person may suffer a debilitating illness or be involved in a severe accident that impairs their functional capacity or competency. Interestingly, research shows that a significant number of U.S. citizens lack documented healthcare wishes if they become incapacitated. Studies estimate that approximately one in three U.S. adults participate in ACP. Another survey cites a majority of Californians (71%) saying they would want to die at home, but only just over a third (36%) passing away at their residences.

Granted, an individual does not have to create a medical power of attorney only to ensure their healthcare choices are observed in their incapacity. The document can also be drafted to name a proxy to handle healthcare decisions even while one is still mentally capable.

Some benefits of having a medical power of attorney in California include:

• It improves end-of-life care, ensuring a principal's medical care reflects their preferences and values.
• It reduces the stress, depression, anxiety, or uncertainty family members may experience when discussing or handling end-of-life matters.
• It gives the principal greater control over what happens to them.
• It offers comfort to family members, as they know, in advance, what the principal desires.

Designating a healthcare proxy ("agent") is not a statutory requirement in California, nor is it necessary for receiving treatment or other healthcare services. Still, legal and medical associations strongly recommend that people, especially young adults, consider appointing one.

Should a person not have an agent in place and become incapacitated in California, state laws will decide who can make those healthcare decisions. Typically, healthcare providers will involve a patient's family and friends or a judge in such scenarios. However, while this approach often works, it has its limitations. The party who assumes the role may have little to no knowledge about the patient's wishes, resulting in the patient not receiving care the way they would have envisioned or chosen.

When Does Your Medical POA Take Effect in California?

The effective condition or date for a medical power of attorney in California varies based on the document's terms. According to Cal. Prob. Code § 4682, a medical power of attorney generally takes effect upon a person's incapacitation and ceases to be effective once the patient regains their capacity.

However, a person can specify in their healthcare power of attorney if they want their agent's authority to begin immediately.

How to Get Medical Power of Attorney in California

Understanding one's healthcare options and preferences at the end of life is often the most important step when creating a medical power of attorney in California. Individuals may seek guidance from a physician, social worker, nurse, or other healthcare professional. They may also involve family, friends, or religious/spiritual leaders in the discussion. Key considerations might include:

• What medical care conditions and treatments are acceptable?
• What matters most in life, and what is relevant at the end of life?
• What religious or ethical beliefs should be honored?
• Are there specific after-death wishes? For instance, organ donation or autopsy.
• Would it be preferable to pass away at home, at a nursing home, or at a hospital?
• Should a doctor disclose the full extent of a medical condition, such as how long one may live?
• Should palliative care be applied?
• What non-medical information should a medical provider know?

Per Cal. Prob. Code § 4650, everyone has the legal right to control their health care decisions. They also have the right to designate someone else to make those decisions for them. However, principals must meet specific legal demands concerning powers of attorney for healthcare in California, which include:

• The principal must be of legal age (18 years or older).
• The principal must be of sound mind. That means the individual must have the mental capacity to comprehend the MPOA's benefits, effects, risks, and alternatives.

Designated agents must also meet certain criteria (see below).

People who meet the state's qualifications can obtain a medical power of attorney form from a health care provider or institution, state or local health department, local nonprofit agency, senior citizen center, lawyer, or by referring to Cal. Prob. Code § 4701. There may be associated costs.

For example, California mandates a notary fee of up to $15 to acknowledge any power of attorney, but hiring a professional (lawyer or online service) to draft the document is purely optional. Individuals can find a free MPOA form online, print it, and complete it without legal or professional assistance.

However, those who seek external help should note that a professional may charge by the hour or have a flat fee, which varies depending on a document's length and complexity. Some professionals may offer estate planning bundles that include documents like a general POA, a POA for healthcare, and a last will and testament for an additional fee. When opting for third-party services, it is good practice to call various estate planning lawyers or providers and ask for a quote. One can also look up reviews to ensure their preferred choice is proficient.

How to Write Medical Power of Attorney in California

As mentioned, California refers to a medical power of attorney as an Advance Health Care Directive. This document combines a living will with a medical power of attorney to outline a person's healthcare choices if they cannot communicate their wishes.

Writing a medical power of attorney requires the interested person to obtain a form from a state, medical, or legal association. The State of California does not designate a single form individuals must use. However, specific provisions must appear in the advance health care directive. A sample form can be found in Cal. Prob. Code § 4701 or on the Office of the Attorney General's website.

Each principal is free to complete and modify any or all parts of the statutory form. However, these two sections must be included:

• Designation of the health care proxy, including the agent's name, contact information, and authority.
• Individual instructions for health care. This includes a person's end-of-life decisions (whether to prolong life in the event of a severe illness or condition), choice of palliative care, and other specific wishes.

Principals may also include optional fields, such as their decision about organ donation at death, funeral or burial wishes, and the designation of a primary physician.

Under Cal. Prob. Code § 4673, any advance health care directive established in California must contain the following to be legally valid.

• The date of the document's execution
• The principal's signature or the signature of another adult who signed the document on the principal's behalf and in the principal's presence
• A notary's acknowledgment of the document or the signatures of at least two competent witnesses that satisfy state requirements

California's witness criteria are outlined in Cal. Prob. Code §§ 4674 and 4675 and include the following:

• The witnesses must be adults.
• Each witness must either observe the principal signing the MPOA or the principal acknowledging the signature or MPOA.
• The witnesses must attest to the principal's competency and the absence of duress, coercion, or undue influence during the signing.
• Only one witness can be a relative by blood, marriage, or adoption.
• One of the witnesses must promise that they will not benefit financially (get any property or money) upon the principal's death.
• Where the principal lives in a nursing home, a patient advocate or county ombudsman must review and sign the advance directive, either as one of two witnesses or in addition to notarization.

A witness cannot be any of the following parties:

• The principal's healthcare provider or their staff
• The agent designated in the power of attorney for health care
• The operator of a community care facility or their staff
• The operator of a residential care facility for the elderly or their staff

After completing the medical power of attorney form, the next step is to share copies. The individual may give copies to trusted family members and friends, medical providers, their lawyer (if applicable), and other responsible adults who may be called upon in an emergency. At the same time, they may only hint at the document's existence to family and friends and keep it somewhere safe and accessible, such as in a locked file cabinet with other important papers. However, any agent named in an advance directive should receive a copy.

Note: California does not mandate the recording of a medical power of attorney, i.e., filing the document into a county's official public records.

How Often Must I Update My Medical Power of Attorney?

There is no fixed interval, statutory or otherwise, for updating a medical power of attorney in California. A person can modify their advance directive anytime, so long as they are mentally competent. To update a medical power of attorney, the individual must fill out a new form.

However, it is crucial to view a healthcare power of attorney as a continuous dialogue about one's values and medical preferences. As such, the document can be reviewed annually and upon significant life changes. For example, a person can update their advance directive if their health status or medical provider changes, if they get married or have children, or if they go through a divorce (especially when the spouse was the health care proxy).

After any modification, it is essential to destroy all copies of the old power of attorney and notify one's family, agent, and medical team of the change.

Note that changes to one's health care proxy must be made by a signed statement or by personally informing one's supervising physician.

Do I Need a Lawyer to Create a Medical Power of Attorney in California?

No. One does not need a lawyer to create an advance health care directive in California. The document can be drafted by obtaining a form online, from a healthcare provider, or from a bookstore or stationery store.

Nonetheless, seeking legal advice may be prudent to ensure compliance with the relevant state regulations. A lawyer can also handle any questions or concerns about the process and advice on supporting documentation.

Who Should Be Selected as the Agent for This Type of PofA?

One primary consideration for selecting a healthcare proxy in California is the individual's trustworthiness. Often, an agent will be assigned complete control over a person's medical care matters, making it critical to choose someone who exhibits the following qualities:

• An individual who meets California's legal criteria
• An individual who knows the principal well and has their best interests at heart
• An individual unafraid to ask questions and advocate for the principal's wishes
• A person whom the principal trusts to respect and follow their wishes
• A person whom the principal trusts to view their medical records
• A person willing to discuss the principal's wishes with them
• A person who can make tough calls when the situation demands
• A person who is reasonably available to make decisions on the principal's behalf (preferably local or within travel distance)

Most of the time, people choose an agent from trusted relatives and friends. However, a person can designate their lawyer or a neighbor as a proxy. Note that an agent must also consent to the nomination.

Who Can Be a Medical Power of Attorney Agent?

The California legislature requires anyone who will serve as an agent for a healthcare power of attorney to be 18 years or older and mentally competent.

Groups commonly disqualified from acting as agents per California law) include:

1. Anyone below 18 years of age
2. The operator or employee of a community or residential care facility where the principal is receiving care
3. The principal's health care provider or staff of the medical facility where the principal is receiving care

An exception to the last two disqualifications is if the person is related to the principal or a coworker.

Can There Be More than One Agent?

Yes. Principals can designate more than one healthcare agent in California. The legal requirements for appointing a "successor" or "alternate" agent are identical to those for a primary agent (the first choice). A person simply needs to name the alternate agent(s) in their medical power of attorney.

The benefit of having multiple agents is that a successor can step in to act on the principal's behalf when the former is unable, unwilling, or reasonably unavailable. However, it can be problematic if the agents cannot work together or disagree on what is best for the principal, which may hinder or delay critical medical decisions. To circumvent this issue, principals should choose trusted and compatible agents or specify responsibilities in their powers of attorney, including whether agents must reach a collective agreement or act separately.

What Decision-Making Power Does the Medical Power of Attorney Grant the Agent?

A medical power of attorney established in California grants an agent or proxy the authority to make a wide range of healthcare decisions if the principal is incapacitated, such as:

• Choose or discharge health care providers and institutions.
• Donate the principal's organs, tissues, and parts, authorize an autopsy, and oversee the disposition of remains.
• Provide or refuse consent to any care, service, treatment, or procedure to diagnose, maintain, or otherwise affect a physical or mental condition.
• Approve or disapprove diagnostic tests, medications, or surgical procedures.
• Direct the provision, withdrawal, or withholding of artificial nutrition and hydration or other forms of health care, including cardiopulmonary resuscitation (CPR).
• Approve or decline access to the principal's medical information.
• Bring in a religious or spiritual leader.

Allowing an agent some flexibility in medical-related matters is generally recommended for optimal care. Nevertheless, a principal can limit their agent's powers in the POA form. They can also specify which decisions their physician should make or if another proxy should be responsible.

Can the Medical Power of Attorney Be Revoked?

Yes. California outlines the legal requirements for canceling a medical power of attorney under Cal. Prob. Code § 4695. Under the law, a principal can cancel an advance health care directive anytime and in any manner that communicates their intent to revoke, so long as they are mentally competent.

Moreover, a medical power of attorney is automatically revoked at a principal's death.

How Do I Revoke a Power of Attorney in California?

Anyone who creates a power of attorney in California can revoke the document following the provisions of Cal. Prob. Code § 4151. The law allows principals to cancel a POA in writing or as stated in the terms. In addition, it is necessary to destroy all copies of the old POA and inform everyone who had the former copy. If the principal established a new power of attorney, they should also provide copies to the respective parties.

Where a principal fails to revoke a medical power of attorney properly, the legal implication is that the document remains valid. As a result, any third party having the old form, without proper notice of its revocation, is legally protected if they enter a transaction with the agent in good faith. Essentially, they will not be liable for any loss or injury that might occur. However, the principal may still be held accountable for the agent's actions.