BILL NUMBER: AB 891 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Alquist
FEBRUARY 25, 1999
An act to amend Section 8205 of the Government Code, to amend
Sections 1569.156, 1599.73, 7100, 7151, and 24179.5 of, to repeal
Section 1418.8 of, and to repeal Chapter 3.9 (commencing with Section
7185) of Part 1 of Division 7 of, the Health and Safety Code, and to
amend Sections 811, 1302, 2105, 2355, 2356, 3200, 3201, 3203, 3204,
3206, 3207, 3208, 3210, 3211, 3722, 4050, 4100, 4121, 4122, 4123,
4128, 4203, 4206, 4260, and 4265 of, to amend the heading of Part 7
(commencing with Section 3200) of Division 4 of, to add Sections
1302.5, 3208.5, and 3212 to, to add Part 4 (commencing with Section
4500) to Division 4.5 of, and to add Division 4.7 (commencing with
Section 4600) to, and to repeal Part 4 (commencing with Section 4600)
and Part 5 (commencing with Section 4900) of Division 4.5 of, the
Probate Code, relating to health care decisions.
LEGISLATIVE COUNSEL'S DIGEST
AB 891, as introduced, Alquist. Health care decisions.
Existing law, the Power of Attorney Law, among other things,
governs and regulates durable powers of attorney for health care, as
specified. Existing law also establishes the Natural Death Act,
providing that an adult person has a right to make a written
declaration instructing his or her physician to withhold or withdraw
life-sustaining treatment in the event of a terminal condition or
permanent unconscious condition if that person is unable to make
those decisions for him or herself, among other provisions.
This bill, operative July 1, 2000, would repeal the provisions
regarding durable powers of attorney for health care under the Power
of Attorney Law, repeal the Natural Death Act, and revise and recast
these provisions as part of a new act, the Health Care Decisions Law.
This law would provide for the creation, form, and revocation of
advance health care directives, for the designation and selection of
health care surrogates, and for the manner of making health care
decisions for patients without surrogates. The bill would also make
various related and conforming changes.
Because this bill would create a new crime, it would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8205 of the Government Code is amended to read:
8205. (a) It is the duty of a notary public, when requested:
(1) To demand acceptance and payment of foreign and inland bills
of exchange, or promissory notes, to protest them for nonacceptance
and nonpayment, and, with regard only to the nonacceptance or
nonpayment of bills and notes, to exercise any other powers and
duties that by the law of nations and according to commercial usages,
or by the laws of any other state, government, or country, may be
performed by notaries.
(2) To take the acknowledgment or proof of advance health
care directives, powers of attorney, mortgages, deeds, grants,
transfers, and other instruments of writing executed by any person,
and to give a certificate of that proof or acknowledgment, endorsed
on or attached to the instrument. The certificate shall be signed by
the notary public in the notary public's own handwriting. A notary
public may not accept any acknowledgment or proof of any instrument
that is incomplete.
(3) To take depositions and affidavits, and administer oaths and
affirmations, in all matters incident to the duties of the office, or
to be used before any court, judge, officer, or board. Any
deposition, affidavit, oath, or affirmation shall be signed by the
notary public in the notary public's own handwriting.
(4) To certify copies of powers of attorney under Section 4307 of
the Probate Code. The certification shall be signed by the notary
public in the notary public's own handwriting.
(b) It shall further be the duty of a notary public, upon written
request:
(1) To furnish to the Secretary of State certified copies of the
notary's journal.
(2) To respond within 30 days of receiving written requests sent
by certified mail from the Secretary of State's office for
information relating to official acts performed by the notary.
SEC. 2. Section 1418.8 of the Health and Safety Code is repealed.
1418.8. (a) If the attending physician and surgeon of a resident
in a skilled nursing facility or intermediate care facility
prescribes or orders a medical intervention that requires informed
consent be obtained prior to administration of the medical
intervention, but is unable to obtain informed consent because the
physician and surgeon determines that the resident lacks capacity to
make decisions concerning his or her health care and that there is no
person with legal authority to make those decisions on behalf of the
resident, the physician and surgeon shall inform the skilled nursing
facility or intermediate care facility.
(b) For purposes of subdivision (a), a resident lacks capacity to
make a decision regarding his or her health care if the resident is
unable to understand the nature and consequences of the proposed
medical intervention, including its risks and benefits, or is unable
to express a preference regarding the intervention. To make the
determination regarding capacity, the physician shall interview the
patient, review the patient's medical records, and consult with
skilled nursing or intermediate care facility staff, as appropriate,
and family members and friends of the resident, if any have been
identified.
(c) For purposes of subdivision (a), a person with legal authority
to make medical treatment decisions on behalf of a patient is a
person designated under a valid Durable Power of Attorney for Health
Care, a guardian, a conservator, or next of kin. To determine the
existence of a person with legal authority, the physician shall
interview the patient, review the medical records of the patient and
consult with skilled nursing or intermediate care facility staff, as
appropriate, and family members and friends of the resident, if any
have been identified.
(d) The attending physician and the skilled nursing facility or
intermediate care facility may initiate a medical intervention that
requires informed consent pursuant to subdivision (e) in accordance
with acceptable standards of practice.
(e) Where a resident of a skilled nursing facility or intermediate
care facility has been prescribed a medical intervention by a
physician and surgeon that requires informed consent and the
physician has determined that the resident lacks capacity to make
health care decisions and there is no person with legal authority to
make those decisions on behalf of the resident, the facility shall,
except as provided in subdivision (h), conduct an interdisciplinary
team review of the prescribed medical intervention prior to the
administration of the medical intervention. The interdisciplinary
team shall oversee the care of the resident utilizing a team approach
to assessment and care planning and shall include the resident's
attending physician, a registered professional nurse with
responsibility for the resident, other appropriate staff in
disciplines as determined by the resident's needs, and, where
practicable, a patient representative, in accordance with applicable
federal and state requirements. The review shall include all of the
following:
(1) A review of the physician's assessment of the resident's
condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where known. To
determine the desires of the resident, the interdisciplinary team
shall interview the patient, review the patient's medical records and
consult with family members or friends, if any have been identified.
(4) The type of medical intervention to be used in the resident's
care, including its probable frequency and duration.
(5) The probable impact on the resident's condition, with and
without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or
utilized and reasons for their discontinuance or inappropriateness.
(f) A patient representative may include a family member or friend
of the resident who is unable to take full responsibility for the
health care decisions of the resident, but has agreed to serve on the
interdisciplinary team, or other person authorized by state or
federal law.
(g) The interdisciplinary team shall periodically evaluate the use
of the prescribed medical intervention at least quarterly or upon a
significant change in the resident's medical condition.
(h) In case of an emergency, after obtaining a physician and
surgeon's order as necessary, a skilled nursing or intermediate care
facility may administer a medical intervention which requires
informed consent prior to the facility convening an interdisciplinary
team review. If the emergency results in the application of
physical or chemical restraints, the interdisciplinary team shall
meet within one week of the emergency for an evaluation of the
medical intervention.
(i) Physician and surgeons and skilled nursing facilities and
intermediate care facilities shall not be required to obtain a court
order pursuant to Section 3201 of the Probate Code prior to
administering a medical intervention which requires informed consent
if the requirements of this section are met.
(j) Nothing in this section shall in any way affect the right of a
resident of a skilled nursing facility or intermediate care facility
for whom medical intervention has been prescribed, ordered, or
administered pursuant to this section to seek appropriate judicial
relief to review the decision to provide the medical intervention.
(k) No physician or other health care provider, whose action under
this section is in accordance with reasonable medical standards, is
subject to administrative sanction if the physician or health care
provider believes in good faith that the action is consistent with
this section and the desires of the resident, or if unknown, the best
interests of the resident.
(l) The determinations required to be made pursuant to
subdivisions (a), (e), and (g), and the basis for those
determinations shall be documented in the patient's medical record
and shall be made available to the patient's representative for
review.
SEC. 3. Section 1569.156 of the Health and Safety Code is amended
to read:
1569.156. (a) A residential care facility for the elderly shall
do all of the following:
(1) Not condition the provision of care or otherwise discriminate
based on whether or not an individual has executed an advance
directive, consistent with applicable laws and regulations.
(2) Provide education to staff on issues concerning advance
directives.
(3) Provide written information, upon admission, about the right
to make decisions concerning medical care, including the right to
accept or refuse medical or surgical treatment and the right, under
state law, to formulate advance directives.
(4) Provide written information about policies of the facility
regarding the implementation of the rights described in paragraph
(3).
(b) For purposes of this section, "advance directive" means
instructions relating to the provision of health care when
individuals are unable to communicate their wishes regarding medical
treatment. The "advance directive" may be a written document
authorizing an agent or surrogate to make decisions on an individual'
s behalf, including a durable power of attorney for health care, as
defined in Section 4700 of the Probate Code, a written statement such
as a declaration, as defined in Section 7186.5, an
"advance health care directive," as defined in Section 4605 of the
Probate Code, or some other form of instruction recognized
under state law specifically addressing the provision of health care.
SEC. 4. Section 1599.73 of the Health and Safety Code is amended
to read:
1599.73. (a) Every contract of admission shall state that
residents have a right to confidential treatment of medical
information.
(b) The contract shall provide a means by which the resident may
authorize the disclosure of information to specific persons, by
attachment of a separate sheet that conforms to the specifications of
Section 56 of the Civil Code. After admission, the facility shall
encourage competent residents having capacity
to make health care decisions to execute a durable
power of attorney for health care an advance health
care directive in the event that he or she becomes unable to
give consent for disclosure. The facility shall make available upon
request to the long-term care ombudsman a list of newly admitted
patients.
SEC. 5. Section 7100 of the Health and Safety Code is amended to
read:
7100. (a) The right to control the disposition of the remains of
a deceased person, the location and conditions of interment, and
arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section
7100.1, vests in, and the duty of disposition and the liability for
the reasonable cost of disposition of the remains devolves upon, the
following in the order named:
(1) An attorney-in-fact agent under
a durable power of attorney for health care
executed pursuant to Chapter 1 governed by
Division 4.7 (commencing with Section 4600) of Part 4
of Division 4.5 of the Probate Code.
(2) The surviving spouse.
(3) The sole surviving adult child of the decedent, or if there is
more than one adult child of the decedent, one-half or more of the
surviving adult children. However, less than one-half of the
surviving adult children shall be vested with the rights and duties
of this section if they have used reasonable efforts to notify all
other surviving adult children of their instructions and are not
aware of any opposition to those instructions on the part of more
than one-half of all surviving adult children. For purposes of this
section, "adult child" means a competent natural or adopted child of
the decedent who has attained 18 years of age.
(4) The surviving parent or parents of the decedent. If one of
the surviving parents is absent, the remaining parent shall be vested
with the rights and duties of this section after reasonable efforts
have been unsuccessful in locating the absent surviving parent.
(5) The surviving competent adult person or persons respectively
in the next degrees of kindred. If there is more than one surviving
person of the same degree of kindred, the majority of those persons.
Less than the majority of surviving persons of the same degree of
kindred shall be vested with the rights and duties of this section if
those persons have used reasonable efforts to notify all other
surviving persons of the same degree of kindred of their instructions
and are not aware of any opposition to those instructions on the
part of one-half or more of all surviving persons of the same degree
of kindred.
(6) The public administrator when the deceased has sufficient
assets.
(b) (1) If any person to whom the right of control has vested
pursuant to subdivision (a) has been charged with first or second
degree murder or voluntary manslaughter in connection with the
decedent's death and those charges are known to the funeral director
or cemetery authority, the right of control is relinquished and
passed on to the next of kin in accordance with subdivision (a).
(2) If the charges against the person are dropped, or if the
person is acquitted of the charges, the right of control is returned
to the person.
(3) Notwithstanding this subdivision, no person who has been
charged with first or second degree murder or voluntary manslaughter
in connection with the decedent's death to whom the right of control
has not been returned pursuant to paragraph (2) shall have any right
to control disposition pursuant to subdivision (a) which shall be
applied, to the extent the funeral director or cemetery authority
know about the charges, as if that person did not exist.
(c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains, and to proceed
under this chapter to recover usual and customary charges for the
disposition, when both of the following apply:
(1) Either of the following applies:
(A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (6), inclusive, of
subdivision (a) exists.
(B) None of the persons described in paragraphs (1) to (6),
inclusive, of subdivision (a) can be found after reasonable inquiry,
or contacted by reasonable means.
(2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts. Written notice may be delivered by
hand, U.S. mail, facsimile transmission, or telegraph.
(d) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kindred and upon the estate of the decedent. However,
if a person accepts the gift of an entire body under subdivision (a)
of Section 7155.5, that person, subject to the terms of the gift,
shall be liable for the reasonable cost of final disposition of the
decedent.
(e) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
(f) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
(g) For purposes of paragraph (5) of subdivision (a), "competent
adult" means an adult who has not been declared incompetent by a
court of law or who has been declared competent by a court of law
following a declaration of incompetence.
SEC. 6. Section 7151 of the Health and Safety Code is amended to
read:
7151. (a) Except as provided in Section 7152, any member of the
following classes of persons, in the order of priority listed, may
make an anatomical gift of all or part of the decedent's body or a
pacemaker for an authorized purpose, unless the decedent, at the time
of death, has made an unrevoked refusal to make that anatomical
gift:
(1) The attorney-in-fact agent under
a valid durable power of attorney for health
care that expressly authorizes or does not limit the
authority of the attorney-in-fact agent
to make an anatomical gift of all or part of the principal's
body or a pacemaker.
(2) The spouse of the decedent.
(3) An adult son or daughter of the decedent.
(4) Either parent of the decedent.
(5) An adult brother or sister of the decedent.
(6) A grandparent of the decedent.
(7) A guardian or conservator of the person of the decedent at the
time of death.
(b) An anatomical gift may not be made by a person listed in
subdivision (a) if any of the following occur:
(1) A person in a prior class is available at the time of death to
make an anatomical gift.
(2) The person proposing to make an anatomical gift knows of a
refusal or contrary indications by the decedent.
(3) The person proposing to make an anatomical gift knows of an
objection to making an anatomical gift by a member of the person's
class or a prior class.
(c) An anatomical gift by a person authorized under subdivision
(a) shall be made by a document of gift signed by the person or the
person's telegraphic, recorded telephonic, or other recorded message,
or other form of communication from the person that is
contemporaneously reduced to writing and signed by the recipient.
(d) An anatomical gift by a person authorized under subdivision
(a) may be revoked by any member of the same or a prior class if,
before procedures have begun for the removal of a part from the body
of the decedent, the physician, surgeon, technician, or enucleator
removing the part knows of the revocation.
(e) A failure to make an anatomical gift under subdivision (a) is
not an objection to the making of an anatomical gift.
SEC. 7. Chapter 3.9 (commencing with Section 7185) of Part 1 of
Division 7 of the Health and Safety Code is repealed.
SEC. 8. Section 24179.5 of the Health and Safety Code is amended
to read:
24179.5. Notwithstanding any other provision of this chapter,
this chapter shall does not apply to an
adult person in a terminal condition who executes
a directive directing the withholding or withdrawal of
life-sustaining procedures pursuant to Section 7188. To the extent
of any conflict, the provisions of Chapter 3.9 (commencing
with Section 7185) of Part 1, of Division 7 shall prevail
Division 4.7 (commencing with Section 4600) of the Probate Code
prevails over the provisions of this chapter.
SEC. 9. Section 811 of the Probate Code is amended to read:
811. (a) A determination that a person is of unsound mind or
lacks the capacity to make a decision or do a certain act, including,
but not limited to, the incapacity to contract, to make a
conveyance, to marry, to make medical decisions, to execute wills, or
to execute trusts, shall be supported by evidence of a deficit in at
least one of the following mental functions, subject to subdivision
(b), and evidence of a correlation between the deficit or deficits
and the decision or acts in question:
(1) Alertness and attention, including, but not limited to, the
following:
(A) Level of arousal or consciousness.
(B) Orientation to time, place, person, and situation.
(C) Ability to attend and concentrate.
(2) Information processing, including, but not limited to, the
following:
(A) Short- and long-term memory, including immediate recall.
(B) Ability to understand or communicate with others, either
verbally or otherwise.
(C) Recognition of familiar objects and familiar persons.
(D) Ability to understand and appreciate quantities.
(E) Ability to reason using abstract concepts.
(F) Ability to plan, organize, and carry out actions in one's own
rational self-interest.
(G) Ability to reason logically.
(3) Thought processes. Deficits in these functions may be
demonstrated by the presence of the following:
(A) Severely disorganized thinking.
(B) Hallucinations.
(C) Delusions.
(D) Uncontrollable, repetitive, or intrusive thoughts.
(4) Ability to modulate mood and affect. Deficits in this ability
may be demonstrated by the presence of a pervasive and persistent or
recurrent state of euphoria, anger, anxiety, fear, panic,
depression, hopelessness or despair, helplessness, apathy or
indifference, that is inappropriate in degree to the individual's
circumstances.
(b) A deficit in the mental functions listed above may be
considered only if the deficit, by itself or in combination with one
or more other mental function deficits, significantly impairs the
person's ability to understand and appreciate the consequences of his
or her actions with regard to the type of act or decision in
question.
(c) In determining whether a person suffers from a deficit in
mental function so substantial that the person lacks the capacity to
do a certain act, the court may take into consideration the
frequency, severity, and duration of periods of impairment.
(d) The mere diagnosis of a mental or physical disorder shall not
be sufficient in and of itself to support a determination that a
person is of unsound mind or lacks the capacity to do a certain act.
(e) This part applies only to the evidence that is presented to,
and the findings that are made by, a court determining the capacity
of a person to do a certain act or make a decision, including, but
not limited to, making medical decisions. Nothing in this part
shall affect affects the decisionmaking
process set forth in Section 1418.8 of the Health and
Safety Code, nor provided in Chapter 4 (commencing
with Section 4720) of Part 2 of Division 4.7. This part does not
increase or decrease the burdens of documentation on, or
potential liability of, health care providers who, outside the
judicial context, determine the capacity of patients to make a
medical decision.
SEC. 10. Section 1302 of the Probate Code is amended to read:
1302. With respect to a power of attorney , the grant or
refusal to grant the following orders is appealable
governed by the Power of Attorney Law (Division 4.5 (commencing with
Section 4000)), an appeal may be taken from any of the following
:
(a) Any final order under Section 4941
4541 , except an order pursuant to subdivision (c) of Section
4941 4541 .
(b) Any final order under Section 4942, except an order
pursuant to subdivision (c) of Section 4942.
(c) An order dismissing the petition or denying a motion
to dismiss under Section 4944 4543 .
SEC. 11. Section 1302.5 is added to the Probate Code, to read:
1302.5. With respect to an advance health care directive governed
by the Health Care Decisions Law (Division 4.7 (commencing with
Section 4600)), an appeal may be taken from any of the following:
(a) Any final order under Section 4766.
(b) An order dismissing the petition or denying a motion to
dismiss under Section 4768.
SEC. 12. Section 2105 of the Probate Code is amended to read:
2105. (a) The court, in its discretion, may appoint for a ward or
conservatee:
(1) Two or more joint guardians or conservators of the person.
(2) Two or more joint guardians or conservators of the estate.
(3) Two or more joint guardians or conservators of the person and
estate.
(b) When joint guardians or conservators are appointed, each shall
qualify in the same manner as a sole guardian or conservator.
(c) Subject to subdivisions (d) and (e):
(1) Where there are two guardians or conservators, both must
concur to exercise a power.
(2) Where there are more than two guardians or conservators, a
majority must concur to exercise a power.
(d) If one of the joint guardians or conservators dies or is
removed or resigns, the powers and duties continue in the remaining
joint guardians or conservators until further appointment is made by
the court.
(e) Where joint guardians or conservators have been appointed and
one or more are (1) absent from the state and unable to act, (2)
otherwise unable to act, or (3) legally disqualified from serving,
the court may, by order made with or without notice, authorize the
remaining joint guardians or conservators to act as to all matters
embraced within its order.
(f) If a custodial parent has been diagnosed as having a terminal
condition, as evidenced by a declaration executed by a licensed
physician, the court, in its discretion, may appoint the custodial
parent and a person nominated by the custodial parent as joint
guardians of the person of the minor. However, this appointment
shall not be made over the objection of a noncustodial parent without
a finding that the noncustodial parent's custody would be
detrimental to the minor, as provided in Section 3041 of the Family
Code. It is the intent of the Legislature in enacting the amendments
to this subdivision adopted during the 1995-96 Regular Session for a
parent with a terminal condition to be able to make arrangements for
the joint care, custody, and control of his or her minor children so
as to minimize the emotional stress of, and disruption for, the
minor children whenever the parent is incapacitated or upon the
parent's death, and to avoid the need to provide a temporary guardian
or place the minor children in foster care, pending appointment of a
guardian, as might otherwise be required.
"Terminal
condition," for purposes of this subdivision, means an incurable and
irreversible condition that, without the administration of
life-sustaining treatment, will, within reasonable medical judgment,
result in death.
Nothing in this section shall be construed to broaden or narrow
the definition of the term "terminal condition," as defined in
subdivision (j) of Section 7186 of the Health and Safety Code.
SEC. 13. Section 2355 of the Probate Code is amended to read:
2355. (a) If the conservatee has been adjudicated to lack the
capacity to give informed consent for medical treatment
make health care decisions , the conservator has
the exclusive authority to give consent for such medical
treatment to be performed on make health care
decisions for the conservatee as that
the conservator in good faith based on medical advice
determines to be necessary and the . The
conservator shall make health care decisions for the conservatee in
accordance with the conservatee's individual health care
instructions, if any, and other wishes to the extent known to the
conservator. Otherwise, the conservator shall make the decision in
accordance with the conservator's determination of the conservatee's
best interest. In determining the conservatee's best interest, the
conservator shall consider the conservatee's personal values to the
extent known to the conservator. The conservator may require
the conservatee to receive such medical treatment
the health care , whether or not the conservatee objects.
In any such this case, the
consent health care decision of the conservator
alone is sufficient and no person is liable because the
medical treatment is performed upon health care is
administered to the conservatee without the conservatee's
consent. For the purposes of this subdivision, "health care"
and "health care decision" have the meanings provided in Sections
4615 and 4617, respectively.
(b) If prior to the establishment of the conservatorship the
conservatee was an adherent of a religion whose tenets and practices
call for reliance on prayer alone for healing, the treatment required
by the conservator under the provisions of this section shall be by
an accredited practitioner of that religion.
SEC. 14. Section 2356 of the Probate Code is amended to read:
2356. (a) No ward or conservatee may be placed in a mental health
treatment facility under this division against the will of the ward
or conservatee. Involuntary civil placement of a ward or conservatee
in a mental health treatment facility may be obtained only pursuant
to Chapter 2 (commencing with Section 5150) or Chapter 3 (commencing
with Section 5350) of Part 1 of Division 5 of the Welfare and
Institutions Code. Nothing in this subdivision precludes the placing
of a ward in a state hospital under Section 6000 of the Welfare and
Institutions Code upon application of the guardian as provided in
that section. The Director of Mental Health shall adopt and issue
regulations defining "mental health treatment facility" for the
purposes of this subdivision.
(b) No experimental drug as defined in Section 111515 of the
Health and Safety Code may be prescribed for or administered to a
ward or conservatee under this division. Such an experimental drug
may be prescribed for or administered to a ward or conservatee only
as provided in Article 4 (commencing with Section 111515) of Chapter
6 of Part 5 of Division 104 of the Health and Safety Code.
(c) No convulsive treatment as defined in Section 5325 of the
Welfare and Institutions Code may be performed on a ward or
conservatee under this division. Convulsive treatment may be
performed on a ward or conservatee only as provided in Article 7
(commencing with Section 5325) of Chapter 2 of Part 1 of Division 5
of the Welfare and Institutions Code.
(d) No minor may be sterilized under this division.
(e) This chapter is subject to any of the following
instruments if a valid and effective :
(1) A directive of the conservatee under Chapter 3.9 (commencing
with Section 7185) of Part 1 of Division 7 of the Health and Safety
Code (Natural Death Act).
(2) A power of attorney for health care, whether or not a durable
power of attorney advance health care directive under
the Health Care Decisions Law (Division 4.7 (commencing with Section
4600)) .
SEC. 15. The heading of Part 7 (commencing with Section 3200) of
Division 4 of the Probate Code is amended to read:
PART 7. AUTHORIZATION OF MEDICAL TREATMENT
CAPACITY DETERMINATIONS AND HEALTH CARE DECISIONS FOR
ADULT WITHOUT CONSERVATOR
SEC. 16. Section 3200 of the Probate Code is amended to read:
3200. As used in this part, "patient"
part:
(a) "Health care" means any care, treatment, service, or procedure
to maintain, diagnose, or otherwise affect a patient's physical or
mental condition.
(b) "Health care decision" means a decision regarding the patient'
s health care, including the following:
(1) Selection and discharge of health care providers and
institutions.
(2) Approval or disapproval of diagnostic tests, surgical
procedures, programs of medication.
(3) Directions to provide, withhold, or withdraw artificial
nutrition and hydration and all other forms of health care, including
cardiopulmonary resuscitation.
(c) "Health care institution" means an institution, facility, or
agency licensed, certified, or otherwise authorized or permitted by
law to provide health care in the ordinary course of business.
(d) "Patient" means an adult who does not have a conservator
of the person and who is in need of medical treatment
for whom a health care decision needs to be made
.
SEC. 17. Section 3201 of the Probate Code is amended to read:
3201. (a) A petition may be filed to determine that a patient has
the capacity to give informed consent to a specified
medical treatment for make a health care decision
concerning an existing or continuing medical
condition.
(b) A petition may be filed to determine that a patient lacks the
capacity to give informed consent to a make a
health care decision concerning specified medical
treatment for an existing or continuing medical
condition, and further for an order authorizing a
designated person to give consent to such treatment
make a health care decision on behalf of the
patient.
(c) One proceeding may be brought under this part under both
subdivisions (a) and (b).
(d) In determining whether a person's mental functioning is so
severely impaired that the person lacks the capacity to give informed
consent to any form of medical treatment, the court may take into
consideration the frequency, severity and duration of periods of
impairment.
(e) Nothing in this part shall supersede the right that any person
may have under existing law to make medical decisions on behalf of a
patient, or affect the decisionmaking process of a long-term health
care facility, as defined in subdivision (b) of Section 1418.8 of the
Health and Safety Code.
(f) This chapter is permissive and cumulative for the relief to
which it applies.
(g) Nothing in this part shall be construed to supersede or impair
the right of any individual to choose treatment by spiritual means
in lieu of medical treatment, nor shall any person choosing treatment
by spiritual means, in accordance with the tenets and practices of
that individual's established religious tradition, be required to
submit to medical testing of any kind pursuant to a determination of
competency.
SEC. 18. Section 3203 of the Probate Code is amended to read:
3203. A petition may be filed by any of the following:
(a) The patient.
(b) The patient's spouse of the patient
.
(c) A relative or friend of the patient , or other
interested person , including the patient's agent under a power
of attorney for health care .
(d) The patient's physician.
(e) A person acting on behalf of the medical facility
health care institution in which the patient is
located if the patient is in a medical facility
health care institution .
(f) The public guardian or such other county
officer as is designated by the board of
supervisors of the county in which the patient is located or resides
or is temporarily living.
SEC. 19. Section 3204 of the Probate Code is amended to read:
3204. The petition shall state, or set forth by medical
declaration attached thereto to the petition
, all of the following so far as is known to
the petitioner at the time the petition is filed:
(a) The nature condition of the
medical condition of the patient which
patient's health that requires treatment.
(b) The recommended course of medical treatment which
health care that is considered to be medically
appropriate.
(c) The threat to the health of the patient
patient's condition if authorization for the recommended
course of treatment health care is
delayed or denied by the court.
(d) The predictable or probable outcome of the recommended
course of treatment health care .
(e) The medically available alternatives, if any, to the
course of treatment recommended health care .
(f) The efforts made to obtain an informed
consent from the patient.
(g) If the petition is filed by a person on behalf of a
medical facility health care institution , the
name of the person to be designated to give consent to the
recommended course of treatment health care
on behalf of the patient.
(h) The deficit or deficits in the patient's mental functions
listed in subdivision (a) of Section 811 which
that are impaired, and identifying
an identification of a link between the deficit or deficits
and the patient's inability to respond knowingly and intelligently to
queries about the recommended medical treatment
health care or inability to participate in a
treatment decision about the recommended medical
treatment health care by means of a rational
thought process.
(i) The names and addresses, so far as they are known to the
petitioner, of the persons specified in subdivision (b) of Section
1821.
SEC. 20. Section 3206 of the Probate Code is amended to read:
3206. (a) Not less than 15 days before the hearing, notice of the
time and place of the hearing and a copy of the petition shall be
personally served on the patient and ,
the patient's attorney , and the agent under the patient's power
of attorney for health care, if any .
(b) Not less than 15 days before the hearing, notice of the time
and place of the hearing and a copy of the petition shall be mailed
to the following persons:
(1) The patient's spouse, if any, of the
proposed conservatee at the address stated in the petition.
(2) The patient's relatives named in the petition at
their addresses stated in the petition.
(c) For good cause, the court may shorten or waive notice of the
hearing as provided by this section. In determining the period of
notice to be required, the court shall take into account both of the
following:
(1) The existing medical facts and circumstances set forth in the
petition or in a medical affidavit
declaration attached to the petition or in a medical
affidavit declaration presented to the court.
(2) The desirability, where the condition of the patient permits,
of giving adequate notice to all interested persons.
SEC. 21. Section 3207 of the Probate Code is amended to read:
3207. Notwithstanding Section 3206, the matter presented by the
petition may be submitted for the determination of the court upon
proper and sufficient medical affidavits or
declarations if the attorney for the petitioner and the attorney for
the patient so stipulate and further stipulate that there remains no
issue of fact to be determined.
SEC. 22. Section 3208 of the Probate Code is amended to read:
3208. (a) The Except as provided in
subdivision (b), the court may make an order authorizing the
recommended course of medical treatment of
health care for the patient and designating a person to give
consent to the recommended course of medical treatment
health care on behalf of the patient if the
court determines from the evidence all of the following:
(1) The existing or continuing medical
condition of the patient patient's health
requires the recommended course of medical treatment
health care .
(2) If untreated, there is a probability that the condition will
become life-endangering or result in a serious threat to the physical
or mental health of the patient.
(3) The patient is unable to give an informed
consent to the recommended course of treatment
health care .
(b) If the patient has the capacity to give informed
consent to the recommended course of medical treatment, the court
shall so find in its order.
(c) If the court finds that the patient has the capacity to give
informed consent to the recommended course of medical treatment, but
that the patient refuses consent, the court shall not make an order
authorizing the course of recommended medical treatment or
designating a person to give consent to such treatment. If an order
has been made authorizing the recommended course of medical treatment
and designating a person to give consent to that treatment, the
order shall be revoked if the court determines that the patient has
recovered the capacity to give informed consent to the recommended
course of medical treatment. Until revoked or modified, the order is
effective authorization for the course of medical treatment.
(d) In a proceeding under this part, where the court has
determined that the patient has the capacity to give informed
consent, the court shall, if requested, determine whether the patient
has accepted or refused the recommended course of treatment, and
whether a patient's consent to the recommended course of treatment is
an informed consent. In determining whether the
patient's mental functioning is so severely impaired that the patient
lacks the capacity to make any health care decision, the court may
take into consideration the frequency, severity, and duration of
periods of impairment.
(c) The court may make an order authorizing withholding or
withdrawing artificial nutrition and hydration and all other forms of
health care and designating a person to give or withhold consent to
the recommended health care on behalf of the patient if the court
determines from the evidence all of the following:
(1) The recommended health care is in accordance with the patient'
s best interest, taking into consideration the patient's personal
values to the extent known to the petitioner.
(2) The patient is unable to consent to the recommended health
care.
(d) Instead of designating a person to make health care decisions
on behalf of the patient under this section, the court may refer the
matter to a surrogate committee under Chapter 4 (commencing with
Section 4720) of Part 2 of Division 4.7. If there is no appropriate
surrogate committee in existence, the court may order creation of a
surrogate committee to act under Chapter 4 (commencing with Section
4720) of Part 2 of Division 4.7.
SEC. 23. Section 3208.5 is added to the Probate Code, to read:
3208.5. In a proceeding under this part:
(a) Where the patient has the capacity to consent to the
recommended health care, the court shall so find in its order.
(b) Where the court has determined that the patient has the
capacity to consent to the recommended health care, the court shall,
if requested, determine whether the patient has accepted or refused
the recommended health care, and whether the patient's consent to the
recommended health care is an informed consent.
(c) Where the court finds that the patient has the capacity to
consent to the recommended health care, but that the patient refuses
consent, the court shall not make an order authorizing the
recommended health care or designating a person to give consent to
the recommended health care. If an order has been made authorizing
the recommended health care and designating a person to give consent
to the recommended health care, the order shall be revoked if the
court determines that the patient has recovered the capacity to
consent to the recommended health care. Until revoked or modified,
the order is effective authorization for the recommended health care.
SEC. 24. Section 3210 of the Probate Code is amended to read:
3210. (a) This part is supplemental and alternative to other
procedures or methods for obtaining medical
consent to health care or making health care decisions, and is
permissive and cumulative for the relief to which it applies .
(b) Nothing in this part limits the providing of medical
treatment health care in an emergency case in
which the medical treatment health care
is required because (1) such treatment the
health care is required for the alleviation of severe pain or
(2) the patient has a medical condition which
that , if not immediately diagnosed and treated, will lead to
serious disability or death.
(c) Nothing in this part supersedes the right that any person may
have under existing law to make health care decisions on behalf of a
patient, or affects the decisionmaking process of a health care
institution.
SEC. 25. Section 3211 of the Probate Code is amended to read:
3211. (a) No person may be placed in a mental health treatment
facility under the provisions of this part.
(b) No experimental drug as defined in Section 111515 of the
Health and Safety Code may be prescribed for or administered to any
person under this part.
(c) No convulsive treatment as defined in Section 5325 of the
Welfare and Institutions Code may be performed on any person under
this part.
(d) No person may be sterilized under this part.
(e) The provisions of this part are subject to any of the
following instruments if valid and effective:
(1) A directive of the patient under Chapter 3.9 (commencing with
Section 7185) of Part 1 of Division 7 of the Health and Safety Code
(Natural Death Act).
(2) A power of attorney for health care, whether or not a durable
power of attorney a valid advance health care
directive under the Health Care Decisions Law, Division 4.7
(commencing with Section 4600) .
SEC. 26. Section 3212 is added to the Probate Code, to read:
3212. Nothing in this part shall be construed to supersede or
impair the right of any individual to choose treatment by spiritual
means in lieu of medical treatment, nor shall any individual choosing
treatment by spiritual means, in accordance with the tenets and
practices of that individual's established religious tradition, be
required to submit to medical testing of any kind pursuant to a
determination of capacity.
SEC. 27. Section 3722 of the Probate Code is amended to read:
3722. If after the absentee executes a power of attorney, the
principal's spouse who is the attorney-in-fact commences a proceeding
for dissolution, annulment, or legal separation, or a legal
separation is ordered, the attorney-in-fact's authority is revoked.
This section is in addition to the provisions of Section
Sections 4154 and 4697 .
SEC. 28. Section 4050 of the Probate Code is amended to read:
4050. (a) This division applies to the following:
(1) Durable powers of attorney , other than powers of
attorney for health care governed by Division 4.7 (commencing with
Section 4600) .
(2) Statutory form powers of attorney under Part 3 (commencing
with Section 4400).
(3) Durable powers of attorney for health care under Part
4 (commencing with Section 4600).
(4) Any other power of attorney that incorporates or
refers to this division or the provisions of this division.
(b) This division does not apply to the following:
(1) A power of attorney to the extent that the authority of the
attorney-in-fact is coupled with an interest in the subject of the
power of attorney.
(2) Reciprocal or interinsurance exchanges and their contracts,
subscribers, attorneys-in-fact, agents, and representatives.
(3) A proxy given by an attorney-in-fact to another person to
exercise voting rights.
(c) This division is not intended to affect the validity of any
instrument or arrangement that is not described in subdivision (a).
SEC. 29. Section 4100 of the Probate Code is amended to read:
4100. This part applies to all powers of attorney under this
division, subject to any special rules applicable to statutory form
powers of attorney under Part 3 (commencing with Section 4400)
or durable powers of attorney for health care under Part 4
(commencing with Section 4600) .
SEC. 30. Section 4121 of the Probate Code is amended to read:
4121. A power of attorney is legally sufficient if all of the
following requirements are satisfied:
(a) The power of attorney contains the date of its execution.
(b) The power of attorney is signed either (1) by the principal or
(2) in the principal's name by some other person
another adult in the principal's presence and at the
principal's direction.
(c) The power of attorney is either (1) acknowledged before a
notary public or (2) signed by at least two witnesses who satisfy the
requirements of Section 4122.
SEC. 31. Section 4122 of the Probate Code is amended to read:
4122. If the power of attorney is signed by witnesses, as
provided in Section 4121, the following requirements shall be
satisfied:
(a) The witnesses shall be adults.
(b) The attorney-in-fact may not act as a witness.
(c) Each witness signing the power of attorney shall witness
either the signing of the instrument by the principal or the
principal's acknowledgment of the signature or the power of attorney.
(d) In the case of a durable power of attorney for health care,
the additional requirements of Section 4701.
SEC. 32. Section 4123 of the Probate Code is amended to read:
4123. (a) In a power of attorney, a principal may grant authority
to an attorney-in-fact to act on the principal's behalf with respect
to all lawful subjects and purposes or with respect to one or more
express subjects or purposes. The attorney-in-fact may be granted
authority with regard to the principal's property, personal care,
health care, or any other matter.
(b) With regard to property matters, a power of attorney may grant
authority to make decisions concerning all or part of the principal'
s real and personal property, whether owned by the principal at the
time of the execution of the power of attorney or thereafter acquired
or whether located in this state or elsewhere, without the need for
a description of each item or parcel of property.
(c) With regard to personal care, a power of attorney may grant
authority to make decisions relating to the personal care of the
principal, including, but not limited to, determining where the
principal will live, providing meals, hiring household employees,
providing transportation, handling mail, and arranging recreation and
entertainment.
(d) With regard to health care, a power of attorney may grant
authority to make health care decisions, both before and after the
death of the principal, as provided in Part 4 (commencing with
Section 4600).
SEC. 33. Section 4128 of the Probate Code is amended to read:
4128. (a) Subject to subdivision (b), a printed form of a durable
power of attorney that is sold or otherwise distributed in this
state for use by a person who does not have the advice of legal
counsel shall contain, in not less than 10-point boldface type or a
reasonable equivalent thereof, the following warning statement:
Notice to Person Executing Durable Power of Attorney
A durable power of attorney is an important legal document. By
signing the durable power of attorney, you are authorizing another
person to act for you, the principal. Before you sign this durable
power of attorney, you should know these important facts:
Your agent (attorney-in-fact) has no duty to act unless you and
your agent agree otherwise in writing.
This document gives your agent the powers to manage, dispose of,
sell, and convey your real and personal property, and to use your
property as security if your agent borrows money on your behalf.
Your agent will have the right to receive reasonable payment for
services provided under this durable power of attorney unless you
provide otherwise in this power of attorney.
The powers you give your agent will continue to exist for your
entire lifetime, unless you state that the durable power of attorney
will last for a shorter period of time or unless you otherwise
terminate the durable power of attorney. The powers you give your
agent in this durable power of attorney will continue to exist even
if you can no longer make your own decisions respecting the
management of your property.
You can amend or change this durable power of attorney only by
executing a new durable power of attorney or by executing an
amendment through the same formalities as an original. You have the
right to revoke or terminate this durable power of attorney at any
time, so long as you are competent.
This
durable power of attorney must be dated and must be acknowledged
before a notary public or signed by two witnesses. If it is signed
by two witnesses, they must witness either (1) the signing of the
power of attorney or (2) the principal's signing or acknowledgment of
his or her signature. A durable power of attorney that may affect
real property should be acknowledged before a notary public so that
it may easily be recorded.
You should read this durable power of attorney carefully. When
effective, this durable power of attorney will give your agent the
right to deal with property that you now have or might acquire in the
future. The durable power of attorney is important to you. If you
do not understand the durable power of attorney, or any provision of
it, then you should obtain the assistance of an attorney or other
qualified person.
(b) Nothing in subdivision (a) invalidates any transaction in
which a third person relied in good faith on the authority created by
the durable power of attorney.
(c) This section does not apply to the following:
(1) A a statutory form power of attorney
under Part 3 (commencing with Section 4400).
(2) A durable power of attorney for health care under Part 4
(commencing with Section 4600).
SEC. 34. Section 4203 of the Probate Code is amended to read:
4203. (a) A principal may designate one or more successor
attorneys-in-fact to act if the authority of a predecessor
attorney-in-fact terminates.
(b) The principal may grant authority to another person,
designated by name, by office, or by function, including the initial
and any successor attorneys-in-fact, to designate at any time one or
more successor attorneys-in-fact. This subdivision does not
apply to a durable power of attorney for health care under Part 4
(commencing with Section 4600).
(c) A successor attorney-in-fact is not liable for the actions of
the predecessor attorney-in-fact.
SEC. 35. Section 4206 of the Probate Code is amended to read:
4206. (a) If, following execution of a durable power of attorney,
a court of the principal's domicile appoints a conservator of the
estate, guardian of the estate, or other fiduciary charged with the
management of all of the principal's property or all of the principal'
s property except specified exclusions, the attorney-in-fact is
accountable to the fiduciary as well as to the principal. Except as
provided in subdivision (b), the fiduciary has the same power to
revoke or amend the durable power of attorney that the principal
would have had if not incapacitated, subject to any required court
approval.
(b) If a conservator of the estate is appointed by a court of this
state, the conservator can revoke or amend the durable power of
attorney only if the court in which the conservatorship proceeding is
pending has first made an order authorizing or requiring the
fiduciary to modify or revoke the durable power of attorney and the
modification or revocation is in accord with the order.
(c) This section does not apply to a durable power of
attorney for health care.
(d) This section is not subject to limitation in the
power of attorney.
SEC. 36. Section 4260 of the Probate Code is amended to read:
4260. This article does not apply to the following:
(a) Statutory statutory form powers of
attorney under Part 3 (commencing with Section 4400).
(b) Durable powers of attorney for health care under Part 4
(commencing with Section 4600).
SEC. 37. Section 4265 of the Probate Code is amended to read:
4265. A power of attorney may not authorize an attorney-in-fact
to perform any of the following acts:
(a) Make make , publish, declare, amend, or
revoke the principal's will.
(b) Consent to any action under a durable power of attorney for
health care forbidden by Section 4722.
SEC. 38. Part 4 (commencing with Section 4500) is added to
Division 4.5 of the Probate Code, to read:
PART 4. JUDICIAL PROCEEDINGS CONCERNING POWERS OF ATTORNEY
CHAPTER 1. GENERAL PROVISIONS
4500. A power of attorney is exercisable free of judicial
intervention, subject to this part.
4501. The remedies provided in this part are cumulative and not
exclusive of any other remedies provided by law.
4502. Except as provided in Section 4503, this part is not
subject to limitation in the power of attorney.
4503. (a) Subject to subdivision (b), a power of attorney may
expressly eliminate the authority of a person listed in Section 4540
to petition the court for any one or more of the purposes enumerated
in Section 4541 if both of the following requirements are satisfied:
(1) The power of attorney is executed by the principal at a time
when the principal has the advice of a lawyer authorized to practice
law in the state where the power of attorney is executed.
(2) The principal's lawyer signs a certificate stating in
substance: "I am a lawyer authorized to practice law in the state
where this power of attorney was executed, and the principal was my
client at the time this power of attorney was executed. I have
advised my client concerning his or her rights in connection with
this power of attorney and the applicable law and the consequences of
signing or not signing this power of attorney, and my client, after
being so advised, has executed this power of attorney."
(b) A power of attorney may not limit the authority of the
attorney-in-fact, the principal, the conservator of the person or
estate of the principal, or the public guardian to petition under
this part.
4504. There is no right to a jury trial in proceedings under this
division.
4505. Except as otherwise provided in this division, the general
provisions in Division 3 (commencing with Section 1000) apply to
proceedings under this division.
CHAPTER 2. JURISDICTION AND VENUE
4520. (a) The superior court has jurisdiction in proceedings
under this division.
(b) The court in proceedings under this division is a court of
general jurisdiction and the court, or a judge of the court, has the
same power and authority with respect to the proceedings as otherwise
provided by law for a superior court, or a judge of the superior
court, including, but not limited to, the matters authorized by
Section 128 of the Code of Civil Procedure.
4521. The court may exercise jurisdiction in proceedings under
this division on any basis permitted by Section 410.10 of the Code of
Civil Procedure.
4522. Without limiting Section 4521, a person who acts as an
attorney-in-fact under a power of attorney governed by this division
is subject to personal jurisdiction in this state with respect to
matters relating to acts and transactions of the attorney-in-fact
performed in this state or affecting property or a principal in this
state.
4523. The proper county for commencement of a proceeding under
this division shall be determined in the following order of priority:
(a) The county in which the principal resides.
(b) The county in which the attorney-in-fact resides.
(c) A county in which property subject to the power of attorney is
located.
(d) Any other county that is in the principal's best interest.
CHAPTER 3. PETITIONS, ORDERS, APPEALS
4540. Subject to Section 4503, a petition may be filed under this
part by any of the following persons:
(a) The attorney-in-fact.
(b) The principal.
(c) The spouse of the principal.
(d) A relative of the principal.
(e) The conservator of the person or estate of the principal.
(f) The court investigator, described in Section 1454, of the
county where the power of attorney was executed or where the
principal resides.
(g) The public guardian of the county where the power of attorney
was executed or where the principal resides.
(h) The personal representative or trustee of the principal's
estate.
(i) The principal's successor in interest.
(j) A person who is requested in writing by an attorney-in-fact to
take action.
(k) Any other interested person or friend of the principal.
4541. A petition may be filed under this part for any one or more
of the following purposes:
(a) Determining whether the power of attorney is in effect or has
terminated.
(b) Passing on the acts or proposed acts of the attorney-in-fact,
including approval of authority to disobey the principal's
instructions pursuant to subdivision (b) of Section 4234.
(c) Compelling the attorney-in-fact to submit the attorney-in-fact'
s accounts or report the attorney-in-fact's acts as attorney-in-fact
to the principal, the spouse of the principal, the conservator of the
person or the estate of the principal, or to any other person
required by the court in its discretion, if the attorney-in-fact has
failed to submit an accounting or report within 60 days after written
request from the person filing the petition.
(d) Declaring that the authority of the attorney-in-fact is
revoked on a determination by the court of all of the following:
(1) The attorney-in-fact has violated or is unfit to perform the
fiduciary duties under the power of attorney.
(2) At the time of the determination by the court, the principal
lacks the capacity to give or to revoke a power of attorney.
(3) The revocation of the attorney-in-fact's authority is in the
best interest of the principal or the principal's estate.
(e) Approving the resignation of the attorney-in-fact:
(1) If the attorney-in-fact is subject to a duty to act under
Section 4230, the court may approve the resignation, subject to any
orders the court determines are necessary to protect the principal's
interests.
(2) If the attorney-in-fact is not subject to a duty to act under
Section 4230, the court shall approve the resignation, subject to the
court's discretion to require the attorney-in-fact to give notice to
other interested persons.
(f) Compelling a third person to honor the authority of an
attorney-in-fact.
4542. A proceeding under this part is commenced by filing a
petition stating facts showing that the petition is authorized under
this part, the grounds of the petition, and, if known to the
petitioner, the terms of the power of attorney.
4543. The court may dismiss a petition if it appears that the
proceeding is not reasonably necessary for the protection of the
interests of the principal or the principal's estate and shall stay
or dismiss the proceeding in whole or in part when required by
Section 410.30 of the Code of Civil Procedure.
4544. (a) Subject to subdivision (b), at least 15 days before the
time set for hearing, the petitioner shall serve notice of the time
and place of the hearing, together with a copy of the petition, on
the following:
(1) The attorney-in-fact if not the petitioner.
(2) The principal if not the petitioner.
(b) In the case of a petition to compel a third person to honor
the authority of an attorney-in-fact, notice of the time and place of
the hearing, together with a copy of the petition, shall be served
on the third person in the manner provided in Chapter 4 (commencing
with Section 413.10) of Title 5 of Part 2 of the Code of Civil
Procedure.
4545. In a proceeding under this part commenced by the filing of
a petition by a person other than the attorney-in-fact, the court may
in its discretion award reasonable attorney's fees to one of the
following:
(a) The attorney-in-fact, if the court determines that the
proceeding was commenced without any reasonable cause.
(b) The person commencing the proceeding, if the court determines
that the attorney-in-fact has clearly violated the fiduciary duties
under the power of attorney or has failed without any reasonable
cause or justification to submit accounts or report acts to the
principal or conservator of the estate or of the person, as the case
may be, after written request from the principal or conservator.
SEC. 39. Part 4 (commencing with Section 4600) of Division 4.5 of
the Probate Code is repealed.
SEC. 40. Division 4.7 (commencing with Section 4600) is added to
the Probate Code, to read:
DIVISION 4.7. HEALTH CARE DECISIONS
PART 1. DEFINITIONS AND GENERAL
CHAPTER 1. SHORT TITLE AND DEFINITIONS
4600. This division may be cited as the Health Care Decisions
Law.
4603. Unless the provision or context otherwise requires, the
definitions in this chapter govern the construction of this division.
4605. "Advance health care directive" or "advance directive"
means either an individual health care instruction or a power of
attorney for health care.
4607. (a) "Agent" means an individual designated in a power of
attorney for health care to make a health care decision for the
principal, regardless of whether the person is known as an agent or
attorney-in-fact, or by some other term.
(b) "Agent" includes a successor or alternate agent.
4609. "Capacity" means a patient's ability to understand the
nature and consequences of proposed health care, including its
significant benefits, risks, and alternatives, and to make and
communicate a health care decision.
4611. "Community care facility" means a "community care facility"
as defined in Section 1502 of the Health and Safety Code.
4613. "Conservator" means a court-appointed conservator having
authority to make a health care decision for a patient.
4615. "Health care" means any care, treatment, service, or
procedure to maintain, diagnose, or otherwise affect a patient's
physical or mental condition.
4617. "Health care decision" means a decision made by a patient
or the patient's agent, conservator, or surrogate, regarding the
patient's health care, including the following:
(a) Selection and discharge of health care providers and
institutions.
(b) Approval or disapproval of diagnostic tests, surgical
procedures, and programs of medication.
(c) Directions to provide, withhold, or withdraw artificial
nutrition and hydration and all other forms of health care, including
cardiopulmonary resuscitation.
4619. "Health care institution" means an institution, facility,
or agency licensed, certified, or otherwise authorized or permitted
by law to provide health care in the ordinary course of business.
4621. "Health care provider" means an individual licensed,
certified, or otherwise authorized or permitted by the law of this
state to provide health care in the ordinary course of business or
practice of a profession.
4623. "Individual health care instruction" or "individual
instruction" means a patient's written or oral direction concerning a
health care decision for him or herself.
4625. "Patient" means an adult whose health care is under
consideration, and includes a principal under a power of attorney for
health care and an adult who has given an individual health care
instruction or designated a surrogate.
4627. "Physician" means a physician and surgeon licensed by the
Medical Board of California or the Osteopathic Medical Board of
California.
4629. "Power of attorney for health care" means a written
instrument designating an agent to make health care decisions for the
principal.
4631. "Primary physician" means a physician designated by a
patient or the patient's agent, conservator, or surrogate, to have
primary responsibility for the patient's health care or, in the
absence of a designation or if the designated physician is not
reasonably available or declines to act as primary physician, a
physician who undertakes the responsibility.
4633. "Principal" means an adult who executes a power of attorney
for health care.
4635. "Reasonably available" means readily able to be contacted
without undue effort and willing and able to act in a timely manner
considering the urgency of the patient's health care needs.
4637. "Residential care facility for the elderly" means a
"residential care facility for the elderly" as defined in Section
1569.2 of the Health and Safety Code.
4639. "Skilled nursing facility" means a "skilled nursing
facility" as defined in Section 1250 of the Health and Safety Code.
4641. "Supervising health care provider" means the primary
physician or, if there is no primary physician or the primary
physician is not reasonably available, the health care provider who
has undertaken primary responsibility for a patient's health care.
4643. "Surrogate" means an adult, other than a patient's agent or
conservator, authorized under this division to make a health care
decision for the patient.
CHAPTER 2. GENERAL PROVISIONS
4650. The Legislature finds the following:
(a) In recognition of the dignity and privacy a person has a right
to expect, the law recognizes that an adult has the fundamental
right to control the decisions relating to his or her own health
care, including the decision to have life-sustaining treatment
withheld or withdrawn.
(b) Modern medical technology has made possible the artificial
prolongation of human life beyond natural limits. In the interest of
protecting individual autonomy, this prolongation of the process of
dying for a person for whom continued health care does not improve
the prognosis for recovery may violate patient dignity and cause
unnecessary pain and suffering, while providing nothing medically
necessary or beneficial to the person.
(c) In the absence of controversy, a court is normally not the
proper forum in which to make health care decisions, including
decisions regarding life-sustaining treatment.
4651. (a) Except as otherwise provided, this division applies to
health care decisions for adults who lack capacity to make health
care decisions for themselves.
(b) This division does not affect any of the following:
(1) The right of an individual to make health care decisions while
having the capacity to do so.
(2) The law governing health care in an emergency.
(3) The law governing health care for unemancipated minors.
4652. This division does not authorize consent to any of the
following on behalf of a patient:
(a) Commitment to, or placement in, a mental health treatment
facility.
(b) Convulsive treatment (as defined in Section 5325 of the
Welfare and Institutions Code).
(c) Psychosurgery (as defined in Section 5325 of the Welfare and
Institutions Code).
(d) Sterilization.
(e) Abortion.
4653. Nothing in this division shall be construed to condone,
authorize, or approve mercy killing, assisted suicide, or euthanasia.
This division is not intended to permit any affirmative or
deliberate act or omission to end life other than withholding or
withdrawing health care pursuant to an advance health care directive,
by a surrogate, or as otherwise provided, so as to permit the
natural process of dying.
4654. This division does not authorize or require a health care
provider or health care institution to provide health care contrary
to generally accepted health care standards applicable to the health
care provider or health care institution.
4655. (a) This division does not create a presumption concerning
the intention of a patient who has not made or who has revoked an
advance health care directive.
(b) In making health care decisions under this division, a patient'
s attempted suicide shall not be construed to indicate a desire of
the patient that health care be restricted or inhibited.
4656. Death resulting from withholding or withdrawing health care
in accordance with this division does not for any purpose constitute
a suicide or homicide or legally impair or invalidate a policy of
insurance or an annuity providing a death benefit, notwithstanding
any term of the policy or annuity to the contrary.
4657. A patient is presumed to have the capacity to make a health
care decision, to give or revoke an advance health care directive,
and to designate or disqualify a surrogate. This presumption is a
presumption affecting the burden of proof.
4658. Unless otherwise specified in a written advance health care
directive, for the purposes of this division, a determination that a
patient lacks or has recovered capacity, or that another condition
exists that affects an individual health care instruction or the
authority of an agent or surrogate, shall be made by the primary
physician.
4659. (a) Except as provided in subdivision (b), none of the
following persons may make health care decisions as an agent under a
power of attorney for health care or a surrogate under this division:
(1) The supervising health care provider or an employee of the
health care institution where the patient is receiving care.
(2) An operator or employee of a community care facility or
residential care facility where the patient is receiving care.
(b) The prohibition in subdivision (a) does not apply to the
following persons:
(1) An employee who is related to the patient by blood, marriage,
or adoption.
(2) An employee who is employed by the same health care
institution, community care facility, or residential care facility
for the elderly as the patient.
(c) A conservator under the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code) may not be designated as an agent or surrogate to
make health care decisions by the conservatee, unless all of the
following are satisfied:
(1) The advance health care directive is otherwise valid.
(2) The conservatee is represented by legal counsel.
(3) The lawyer representing the conservatee signs a certificate
stating in substance: "I am a lawyer authorized to practice law in
the state where this advance health care directive was executed, and
the principal or patient was my client at the time this advance
directive was executed. I have advised my client concerning his or
her rights in connection with this advance directive and the
applicable law and the consequences of signing or not signing this
advance directive, and my client, after being so advised, has
executed this advance directive."
(d) This section does not apply to participation in or
decisionmaking by a surrogate committee pursuant to Chapter 4
(commencing with Section 4720) of Part 2.
4660. A copy of a written advance health care directive,
revocation of an advance directive, or designation or
disqualification of a surrogate has the same effect as the original.
CHAPTER 3. TRANSITIONAL PROVISIONS
4665. Except as otherwise provided by statute:
(a) On and after July 1, 2000, this division applies to all
advance health care directives, including, but not limited to,
durable powers of attorney for health care and declarations under the
Natural Death Act (former Chapter 3.9 (commencing with Section 7185)
of Part 1 of Division 7 of the Health and Safety Code), regardless
of whether they were given or executed before, on, or after July 1,
2000.
(b) This division applies to all proceedings concerning advance
health care directives commenced on or after July 1, 2000.
(c) This division applies to all proceedings concerning written
advance health care directives commenced before July 1, 2000, unless
the court determines that application of a particular provision of
this division would substantially interfere with the effective
conduct of the proceedings or the rights of the parties and other
interested persons, in which case the particular provision of this
division does not apply and prior law applies.
(d) Nothing in this division affects the validity of an advance
health care directive executed before July 1, 2000, that was valid
under prior law.
(e) Nothing in this division affects the validity of a durable
power of attorney for health care executed on a printed form that was
valid under prior law, regardless of whether execution occurred
before, on, or after July 1, 2000.
PART 2. UNIFORM HEALTH CARE DECISIONS ACT
CHAPTER 1. ADVANCE HEALTH CARE DIRECTIVES
Article 1. General Provisions
4670. An adult having capacity may give an individual health care
instruction. The individual instruction may be oral or written.
The individual instruction may be limited to take effect only if a
specified condition arises.
4671. (a) An adult having capacity may execute a power of
attorney for health care, as provided in Article 2 (commencing with
Section 4680). The power of attorney for health care may authorize
the agent to make health care decisions and may also include
individual health care instructions.
(b) The principal in a power of attorney for health care may grant
authority to make decisions relating to the personal care of the
principal, including, but not limited to, determining where the
principal will live, providing meals, hiring household employees,
providing transportation, handling mail, and arranging recreation and
entertainment.
4672. (a) A written advance health care directive may include the
individual's nomination of a conservator of the person or estate or
both, or a guardian of the person or estate or both, for
consideration by the court if protective proceedings for the
individual's person or estate are thereafter commenced.
(b) If the protective proceedings are conservatorship proceedings
in this state, the nomination has the effect provided in Section 1810
and the court shall give effect to the most recent writing executed
in accordance with Section 1810, whether or not the writing is a
written advance health care directive.
4673. (a) If an individual is a patient in a skilled nursing
facility when the advance health care directive is executed, the
advance directive shall be acknowledged before a notary public or
signed by at least two witnesses as provided in this section.
(b) If the advance health care directive is signed by witnesses,
the following requirements shall be satisfied:
(1) The witnesses shall be adults.
(2) Each witness shall witness either the signing of the advance
health care directive by the patient or the patient's acknowledgment
of the signature or the advance directive.
(3) None of the following persons may act as a witness:
(A) The agent, with regard to a power of attorney for health care.
(B) The patient's health care provider or an employee of the
patient's health care provider.
(C) The operator or an employee of a community care facility.
(D) The operator or an employee of a residential care facility for
the elderly.
(4) Each witness shall make the following declaration in
substance: "I declare under penalty of perjury under the laws of
California that the
individual who signed or acknowledged this document is personally
known to me, or that the identity of the individual was proven to me
by convincing evidence, that the individual signed or acknowledged
this advance health care directive in my presence, that the
individual appears to be of sound mind and under no duress, fraud, or
undue influence, that I am not the person appointed as agent by this
document, and that I am not the individual's health care provider,
an employee of the individual's health care provider, the operator of
a community care facility, an employee of an operator of a community
care facility, the operator of a residential care facility for the
elderly, nor an employee of an operator of a residential care
facility for the elderly."
(c) An advance health care directive governed by this section is
not effective unless a patient advocate or ombudsman, as may be
designated by the Department of Aging for this purpose pursuant to
any other applicable provision of law, signs the advance directive as
a witness, either as one of two witnesses or in addition to
notarization. The patient advocate or ombudsman shall declare that
he or she is serving as a witness as required by this subdivision.
It is the intent of this subdivision to recognize that some patients
in skilled nursing facilities are insulated from a voluntary
decisionmaking role, by virtue of the custodial nature of their care,
so as to require special assurance that they are capable of
willfully and voluntarily executing an advance directive.
(d) For the purposes of the declaration of witnesses, "convincing
evidence" means the absence of any information, evidence, or other
circumstances that would lead a reasonable person to believe the
individual executing the advance health care directive, whether by
signing or acknowledging his or her signature, is not the individual
he or she claims to be, and any one of the following:
(1) Reasonable reliance on the presentation of any one of the
following, if the document is current or has been issued within five
years:
(A) An identification card or driver's license issued by the
California Department of Motor Vehicles.
(B) A passport issued by the Department of State of the United
States.
(2) Reasonable reliance on the presentation of any one of the
following, if the document is current or has been issued within five
years and contains a photograph and description of the person named
on it, is signed by the person, bears a serial or other identifying
number, and, in the event that the document is a passport, has been
stamped by the United States Immigration and Naturalization Service:
(A) A passport issued by a foreign government.
(B) A driver's license issued by a state other than California or
by a Canadian or Mexican public agency authorized to issue drivers'
licenses.
(C) An identification card issued by a state other than
California.
(D) An identification card issued by any branch of the armed
forces of the United States.
(e) A witness who is a patient advocate or ombudsman may rely on
the representations of the administrators or staff of the skilled
nursing facility, or of family members, as convincing evidence of the
identity of the patient if the patient advocate or ombudsman
believes that the representations provide a reasonable basis for
determining the identity of the patient.
(f) The provisions of this section applicable to witnesses do not
apply to a notary who acknowledges an advance health care directive.
4674. (a) A written advance health care directive or similar
instrument executed in another state or jurisdiction in compliance
with the laws of that state or jurisdiction or of this state, is
valid and enforceable in this state to the same extent as a written
advance directive validly executed in this state.
(b) In the absence of knowledge to the contrary, a physician or
other health care provider may presume that a written advance health
care directive or similar instrument, whether executed in another
state or jurisdiction or in this state, is valid.
4675. A health care provider, health care service plan, health
care institution, disability insurer, self-insured employee welfare
plan, or nonprofit hospital plan or a similar insurance plan may not
require or prohibit the execution or revocation of an advance health
care directive as a condition for providing health care, admission to
a facility, or furnishing insurance.
4676. Unless otherwise specified in an advance health care
directive, a person then authorized to make health care decisions for
a patient has the same rights as the patient to request, receive,
examine, copy, and consent to the disclosure of medical or any other
health care information.
Article 2. Powers of Attorney for Health Care
4680. A power of attorney for health care is legally sufficient
if all of the following requirements are satisfied:
(a) The power of attorney is signed either (1) by the principal or
(2) in the principal's name by another adult in the principal's
presence and at the principal's direction.
(b) The power of attorney satisfies applicable witnessing
requirements of Section 4673.
4681. (a) Except as provided in subdivision (b), the principal
may limit the application of any provision of this division by an
express statement in the power of attorney for health care or by
providing an inconsistent rule in the power of attorney.
(b) A power of attorney for health care may not limit either the
application of a statute specifically providing that it is not
subject to limitation in the power of attorney or a statute
concerning any of the following:
(1) Statements required to be included in a power of attorney.
(2) Operative dates of statutory enactments or amendments.
(3) Formalities for execution of a power of attorney for health
care.
(4) Qualifications of witnesses.
(5) Qualifications of agents.
(6) Protection of third persons from liability.
4682. Unless otherwise provided in a power of attorney for health
care, the authority of an agent becomes effective only on a
determination that the principal lacks capacity, and ceases to be
effective on a determination that the principal has recovered
capacity.
4683. Subject to any limitations in the power of attorney for
health care:
(a) An agent designated in the power of attorney may make health
care decisions for the principal to the same extent the principal
could make health care decisions if the principal had the capacity to
do so.
(b) The agent may also make decisions that may be effective after
the principal's death, including the following:
(1) Making a disposition under the Uniform Anatomical Gift Act
(Chapter 3.5 (commencing with Section 7150) of Part 1 of Division 7
of the Health and Safety Code).
(2) Authorizing an autopsy under Section 7113 of the Health and
Safety Code.
(3) Directing the disposition of remains under Section 7100 of the
Health and Safety Code.
4684. An agent shall make a health care decision in accordance
with the principal's individual health care instructions, if any, and
other wishes to the extent known to the agent. Otherwise, the agent
shall make the decision in accordance with the agent's determination
of the principal's best interest. In determining the principal's
best interest, the agent shall consider the principal's personal
values to the extent known to the agent.
4685. Unless the power of attorney for health care provides
otherwise, the agent designated in the power of attorney who is known
to the health care provider to be reasonably available and willing
to make health care decisions has priority over any other person in
making health care decisions for the principal.
4686. Unless the power of attorney for health care provides a
time of termination, the authority of the agent is exercisable
notwithstanding any lapse of time since execution of the power of
attorney.
4687. Nothing in this division affects any right the person
designated as an agent under a power of attorney for health care may
have, apart from the power of attorney, to make or participate in
making health care decisions for the principal.
4688. Where this division does not provide a rule governing
agents under powers of attorney, the law of agency applies.
Article 3. Revocation of Advance Directives
4695. (a) A patient having capacity may revoke the designation of
an agent only by a signed writing or by personally informing the
supervising health care provider.
(b) A patient having capacity may revoke all or part of an advance
health care directive, other than the designation of an agent, at
any time and in any manner that communicates an intent to revoke.
4696. A health care provider, agent, conservator, or surrogate
who is informed of a revocation of an advance health care directive
shall promptly communicate the fact of the revocation to the
supervising health care provider and to any health care institution
where the patient is receiving care.
4697. (a) If after executing a power of attorney for health care
the principal's marriage to the agent is dissolved or annulled, the
principal's designation of the former spouse as an agent to make
health care decisions for the principal is revoked.
(b) If the agent's authority is revoked solely by subdivision (a),
it is revived by the principal's remarriage to the agent.
4698. An advance health care directive that conflicts with an
earlier advance directive revokes the earlier advance directive to
the extent of the conflict.
CHAPTER 2. ADVANCE HEALTH CARE DIRECTIVE FORMS
4700. The form provided in Section 4701 may, but need not, be
used to create an advance health care directive. The other sections
of this division govern the effect of the form or any other writing
used to create an advance health care directive. An individual may
complete or modify all or any part of the form in Section 4701.
4701. The statutory advance health care directive form is as
follows:
ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation
You have the right to give instructions about your own health
care. You also have the right to name someone else to make health
care decisions for you. This form lets you do either or both of
these things. It also lets you express your wishes regarding
donation of organs and the designation of your primary physician. If
you use this form, you may complete or modify all or any part of it.
You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part
1 lets you name another individual as agent to make health care
decisions for you if you become incapable of making your own
decisions or if you want someone else to make those decisions for you
now even though you are still capable. You may also name an
alternate agent to act for you if your first choice is not willing,
able, or reasonably available to make decisions for you. (Your agent
may not be an operator or employee of a community care facility or a
residential care facility where you are receiving care, or your
supervising health care provider or employee of the health care
institution where you are receiving care, unless your agent is
related to you or is a co-worker).
Unless the form you sign limits the authority of your agent, your
agent may make all health care decisions for you. This form has a
place for you to limit the authority of your agent. You need not
limit the authority of your agent if you wish to rely on your agent
for all health care decisions that may have to be made. If you
choose not to limit the authority of your agent, your agent will have
the right to:
(a) Consent or refuse consent to any care, treatment, service, or
procedure to maintain, diagnose, or otherwise affect a physical or
mental condition.
(b) Select or discharge health care providers and institutions.
(c) Approve or disapprove diagnostic tests, surgical procedures,
and programs of medication.
(d) Direct the provision, withholding, or withdrawal of artificial
nutrition and hydration and all other forms of health care,
including cardiopulmonary resuscitation.
(e) Make anatomical gifts, authorize an autopsy, and direct
disposition of remains.
Part 2 of this form lets you give specific instructions about any
aspect of your health care, whether or not you appoint an agent.
Choices are provided for you to express your wishes regarding the
provision, withholding, or withdrawal of treatment to keep you alive,
as well as the provision of pain relief. Space is also provided for
you to add to the choices you have made or for you to write out any
additional wishes. If you are satisfied to allow your agent to
determine what is best for you in making end-of-life decisions, you
need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your
bodily organs and tissues following your death.
Part 4 of this form lets you designate a physician to have primary
responsibility for your health care.
After completing this form, sign and date the form at the end. It
is recommended but not required that you request two other adults to
sign as witnesses. Give a copy of the signed and completed form to
your physician, to any other health care providers you may have, to
any health care institution at which you are receiving care, and to
any health care agents you have named. You should talk to the person
you have named as agent to make sure that he or she understands your
wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or
replace this form at any time.
* * * * * * * * * * * * * * * * *
PART 1
POWER OF ATTORNEY FOR HEALTH CARE
(1.1) DESIGNATION OF AGENT: I designate the following individual
as my
agent to make health care decisions for me:
______________________________________________________________________
____
(name of individual you choose as agent)
______________________________________________________________________
____
(address) (city) (state) (zip
code)
______________________________________________________________________
____
(home phone) (work phone)
OPTIONAL: If I revoke my agent's authority or if my agent is not
willing,
able, or reasonably available to make a health care decision for
me, I
designate as my first alternate agent:
______________________________________________________________________
____
(name of individual you choose as first alternate agent)
______________________________________________________________________
____
(address) (city) (state) (zip
code)
______________________________________________________________________
____
(home phone) (work phone)
OPTIONAL: If I revoke the authority of my agent and first
alternate agent
or if neither is willing, able, or reasonably available to make a
health
care decision for me, I designate as my second alternate agent:
______________________________________________________________________
____
(name of individual you choose as second alternate agent)
______________________________________________________________________
____
(address) (city) (state) (zip
code)
______________________________________________________________________
____
(home phone) (work phone)
(1.2) AGENT'S AUTHORITY: My agent is authorized to make all
health care
decisions for me, including decisions to provide, withhold, or
withdraw
artificial nutrition and hydration and all other forms of health
care to
keep me alive, except as I state here:
______________________________________________________________________
____
______________________________________________________________________
____
______________________________________________________________________
____
(add additional sheets if needed.)
(1.3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's
authority
becomes effective when my primary physician determines that I am
unable
to make my own health care decisions unless I mark the following
box.
If I mark this box (), my agent's authority to make health care
decisions
for me takes effect immediately.
(1.4) AGENT'S OBLIGATION: My agent shall make health care
decisions for
me in accordance with this power of attorney for health care, any
instructions I give in Part 2 of this form, and my other wishes to
the
extent known to my agent. To the extent my wishes are unknown, my
agent
shall make health care decisions for me in accordance with what my
agent
determines to be in my best interest. In determining my best
interest,
my agent shall consider my personal values to the extent known to
my agent.
(1.5) AGENT'S POSTDEATH AUTHORITY: My agent is authorized to make
anatomical gifts, authorize an autopsy, and direct disposition of
my
remains, except as I state here or in Part 3 of this form:
______________________________________________________________________
____
______________________________________________________________________
____
______________________________________________________________________
____
(Add additional sheets if needed.)
(1.6) NOMINATION OF CONSERVATOR: If a conservator of my person
needs to
be appointed for me by a court, I nominate the agent designated in
this
form. If that agent is not willing, able, or reasonably available
to act
as conservator, I nominate the alternate agents whom I have named,
in the
order designated.
PART 2
INSTRUCTIONS FOR HEALTH CARE
If you fill out this part of the form, you may strike any wording
you do
not want.
(2.1) END-OF-LIFE DECISIONS: I direct that my health care
providers
and others involved in my care provide, withhold, or withdraw
treatment in
accordance with the choice I have marked below:
_
|_| (a) Choice Not To Prolong Life
I do not want my life to be prolonged if (1) I have an incurable
and
irreversible condition that will result in my death within a
relatively
short time, (2) I become unconscious and, to a reasonable degree of
medical certainty, I will not regain consciousness, or (3) the
likely
risks and burdens of treatment would outweigh the expected
benefits, OR
_
|_| (b) Choice To Prolong Life
I want my life to be prolonged as long as possible within the
limits of
generally accepted health care standards.
(2.2) RELIEF FROM PAIN: Except as I state in the following space,
I
direct that treatment for alleviation of pain or discomfort be
provided
at all times, even if it hastens my death:
______________________________________________________________________
____
______________________________________________________________________
____
(Add additional sheets if needed.)
(2.3) OTHER WISHES: (If you do not agree with any of the optional
choices
above and wish to write your own, or if you wish to add to the
instructions
you have given above, you may do so here.) I direct that:
______________________________________________________________________
____
______________________________________________________________________
____
(Add additional sheets if needed.)
PART 3
DONATION OF ORGANS AT DEATH
(OPTIONAL)
(3.1) Upon my death (mark applicable box):
_
|_| (a) I give any needed organs, tissues, or parts, OR
_
|_| (b) I give the following organs, tissues, or parts only.
_____________________________________________________________________
(c) My gift is for the following purposes (strike any of the
following you do not want):
(1) Transplant
(2) Therapy
(3) Research
(4) Education
PART 4
PRIMARY PHYSICIAN
(OPTIONAL)
(4.1) I designate the following physician as my primary physician:
______________________________________________________________________
____
(name of physician)
______________________________________________________________________
____
(address) (city) (state) (zip
code)
______________________________________________________________________
____
(phone)
OPTIONAL: If the physician I have designated above is not willing,
able,
or reasonably available to act as my primary physician, I designate
the
following physician as my primary physician:
______________________________________________________________________
____
(name of physician)
______________________________________________________________________
____
(address) (city) (state) (zip
code)
______________________________________________________________________
____
(phone)
* * * * * * * * * * * * * * * * *
PART 5
(5.1) EFFECT OF COPY: A copy of this form has the same effect as
the
original.
(5.2) SIGNATURES: Sign and date the form here:
_______________________________
____________________________________
(date) (sign your name)
_______________________________
____________________________________
(address) (print your name)
_______________________________
(city) (state)
(Optional) SIGNATURES OF WITNESSES:
First witness Second witness
______________________________
____________________________________
(print name) (print name)
______________________________
____________________________________
(address) (address)
______________________________
____________________________________
(city) (state) (city) (state)
______________________________
____________________________________
(signature of witness) (signature of witness)
______________________________
____________________________________
(date) (date)
PART 6
SPECIAL WITNESS REQUIREMENT
(6.1) The following statement is required only if you are a patient
in a
skilled nursing facility--a health care facility that provides the
following
basic services: skilled nursing care and supportive care to
patients whose
primary need is for availability of skilled nursing care on an
extended
basis. The patient advocate or ombudsman must sign the following
statement:
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN
I declare under penalty of perjury under the laws of California
that I am
a patient advocate or ombudsman as designated by the State
Department of
Aging and that I am serving as a witness as required by Section
4673 of the
Probate Code.
______________________________
____________________________________
(date) (sign your name)
______________________________
____________________________________
(address) (print your name)
______________________________
(city) (state)
CHAPTER 3. HEALTH CARE SURROGATES
4710. A surrogate who is designated or selected under this
chapter may make health care decisions for a patient if all of the
following conditions are satisfied:
(a) The patient has been determined by the primary physician to
lack capacity.
(b) No agent has been designated under a power of attorney for
health care and no conservator of the person has been appointed with
authority to make health care decisions, or the agent or conservator
is not reasonably available.
4711. A patient may designate an individual as a surrogate to
make health care decisions by personally informing the supervising
health care provider. An oral designation of a surrogate is
effective only during the course of treatment or illness or during
the stay in the health care institution when the designation is made.
4712. (a) Subject to Section 4710, if no surrogate has been
designated under Section 4711 or if the designated surrogate is not
reasonably available, the primary physician may select a surrogate to
make health care decisions for the patient from among the following
adults with a relationship to the patient:
(1) The spouse, unless legally separated.
(2) An adult in a long-term relationship of indefinite duration
with the patient in which the individual has demonstrated an actual
commitment to the patient similar to the commitment of a spouse and
in which the individual and the patient consider themselves to be
responsible for each other's well-being and reside or have been
residing together. This individual may be known as a domestic
partner.
(3) Children.
(4) Parents.
(5) Brothers and sisters.
(6) Grandchildren.
(7) Close friends.
(b) The primary physician shall select the surrogate, with the
assistance of other health care providers or institutional
committees, in the order of priority set forth in subdivision (a),
subject to the following conditions:
(1) Where there are multiple possible surrogates at the same
priority level, the primary physician shall select the individual who
appears after a good faith inquiry to be best qualified.
(2) The primary physician may select as the surrogate an
individual who is ranked lower in priority if, in the primary
physician's judgment, the individual is best qualified to serve as
the patient's surrogate.
(c) In determining the individual best qualified to serve as the
surrogate under this section, the following factors shall be
considered:
(1) Whether the proposed surrogate appears to be best able
to make decisions in accordance with Section 4714.
(2) The degree of regular contact with the patient before and
during the patient's illness.
(3) Demonstrated care and concern for the patient.
(4) Familiarity with the patient's personal values.
(5) Availability to visit the patient.
(6) Availability to engage in face-to-face contact with health
care providers for the purpose of fully participating in the health
care decisionmaking process.
(d) The primary physician may require a surrogate or proposed
surrogate (1) to provide information to assist in making the
determinations under this section and (2) to provide information to
family members and other persons concerning the selection of the
surrogate and communicate with them concerning health care decisions
for the patient.
(e) The primary physician shall document in the patient's health
care record the reasons for selecting the surrogate.
4713. (a) The surrogate designated or selected under this chapter
shall promptly communicate his or her assumption of authority to all
adults described in paragraphs (1) to (5), inclusive, of subdivision
(a) of Section 4712 who can readily be contacted.
(b) The supervising health care provider, in the case of a
surrogate designation under Section 4711, or the primary physician,
in the case of a surrogate selection under Section 4712, shall inform
the surrogate of the duty under subdivision (a).
4714. A surrogate shall make a health care decision in accordance
with the patient's individual health care instructions, if any, and
other wishes to the extent known to the surrogate. Otherwise, the
surrogate shall make the decision in accordance with the surrogate's
determination of the patient's best interest. In determining the
patient's best interest, the surrogate shall consider the patient's
personal values to the extent known to the surrogate.
4715. A patient having capacity at any time may disqualify
another person, including a member of the patient's family, from
acting as the patient's surrogate by a signed writing or by
personally informing the supervising health care provider of the
disqualification.
4716. (a) If a surrogate selected pursuant to Section 4712 is not
reasonably available, the surrogate may be replaced.
(b) If an individual who ranks higher in priority under
subdivision (a) of Section 4712 relative to a selected surrogate
becomes reasonably available, the individual with higher priority may
be substituted for the selected surrogate unless the primary
physician determines that the lower ranked individual is best
qualified to serve as the surrogate.
CHAPTER 4. HEALTH CARE DECISIONS FOR PATIENTS WITHOUT
SURROGATES
4720. This chapter applies where a health care decision needs to
be made for a patient and all of the following conditions are
satisfied:
(a) The patient has been determined by the primary physician to
lack capacity.
(b) No agent has been designated under a power of attorney for
health care and no conservator of the person has been appointed with
authority to make health care decisions, or the agent or conservator
is not reasonably available.
(c) No surrogate can be selected under Chapter 3 (commencing with
Section 4710) or the surrogate is not reasonably available.
(d) No dispositive individual health care instruction is in the
patient's record.
4721. A patient's primary physician may obtain approval for a
proposed health care decision by referring the matter to a surrogate
committee before the health care decision is implemented.
4722. (a) A surrogate committee may be established by the health
care institution. If a surrogate committee has not been established
by the patient's health care institution, or if the patient is not a
patient in a health care institution, the surrogate committee may be
established by the county health officer or as otherwise determined
by the county board of supervisors.
(b) The surrogate committee shall include the following
individuals:
(1) The patient's primary physician.
(2) A professional nurse with responsibility for the patient and
with knowledge of the patient's condition.
(3) A patient representative or community member. The patient
representative may be a family member or friend of the patient who is
unable to take full responsibility for the patient's health care
decisions, but has agreed to serve on the surrogate committee. A
community member is an adult who is not employed by or regularly
associated with the primary physician, the health care institution,
or employees of the health care institution.
(c) In cases involving withholding or withdrawing life-sustaining
treatment or other critical health care decisions, in addition to the
individuals described in subdivision (b), the surrogate committee
shall include a member of the health care institution's ethics
committee or an outside ethics consultant.
(d) This section provides minimum guidelines for the composition
of the surrogate committee and is not intended to restrict
participation by other appropriate persons, including health care
institution staff in disciplines as determined by the patient's
needs.
4723. (a) The surrogate committee's review of proposed health
care shall include all of the following:
(1) A review of the primary physician's assessment of the patient'
s condition.
(2) The reason for the proposed health care decision.
(3) A discussion of the desires of the patient, if known. To
determine the desires of the patient, the surrogate committee shall
interview the patient, if the patient is capable of communicating,
review the patient's medical records, and consult with family members
or friends, if any have been identified.
(4) The type of health care to be administered in the patient's
care, including its probable frequency and duration.
(5) The probable impact on the patient's condition, with and
without administration of the proposed health care.
(6) Reasonable alternative health care decisions considered or
administered, and reasons for their discontinuance or
inappropriateness.
(b) The surrogate committee shall periodically evaluate the
results of an approved health care decision, as appropriate under
applicable standards of health care.
4724. (a) The surrogate committee shall attempt to reach
consensus on proposed health care decisions, but may approve proposed
health care decisions by majority vote. However, proposed health
care decisions relating to withholding or withdrawing life-sustaining
treatment may not be approved if any member of the surrogate
committee is opposed.
(b) The surrogate committee shall keep a record of its membership,
showing who participated in making a health care decision with
regard to a patient, and the result of votes taken, and shall keep a
record of its deliberations and conclusions under Section 4723.
4725. Provisions applicable to health care decisionmaking,
duties, and immunities of surrogates apply to a surrogate committee
and its members.
4726. In a case subject to this chapter where emergency care is
administered without approval by a surrogate committee, if the
emergency results in the application of physical or chemical
restraints, the surrogate committee shall meet within one week of the
emergency for an evaluation of the health care decision.
CHAPTER 5. DUTIES OF HEALTH CARE PROVIDERS
4730. Before implementing a health care decision made for a
patient, a supervising health care provider, if possible, shall
promptly communicate to the patient the decision made and the
identity of the person making the decision.
4731. (a) A supervising health care provider who knows of the
existence of an advance health care directive, a revocation of an
advance health care directive, or a designation or disqualification
of a surrogate, shall promptly record its existence in the patient's
health care record and, if it is in writing, shall request a copy.
If a copy is furnished, the supervising health care provider shall
arrange for its maintenance in the patient's health care record.
(b) A supervising health care provider who knows of a revocation
of a power of attorney for health care or a disqualification of a
surrogate shall make a reasonable effort to notify the agent or
surrogate of the revocation or disqualification.
4732. A primary physician who makes or is informed of a
determination that a patient lacks or has recovered capacity, or that
another condition exists affecting an individual health care
instruction or the authority of an agent, conservator of the person,
or surrogate, shall promptly record the determination in the patient'
s health care record and communicate the determination to the
patient, if possible, and to a person then authorized to make health
care decisions for the patient.
4733. Except as provided in Sections 4734 and 4735, a health care
provider or health care institution providing care to a patient
shall do the following:
(a) Comply with an individual health care instruction of the
patient and with a reasonable interpretation of that instruction made
by a person then authorized to make health care decisions for the
patient.
(b) Comply with a health care decision for the patient made by a
person then authorized to make health care decisions for the patient
to the same extent as if the decision had been made by the patient
while having capacity.
4734. (a) A health care provider may decline to comply with an
individual health care instruction or health care decision for
reasons of conscience.
(b) A health care institution may decline to comply with an
individual health care instruction or health care decision if the
instruction or decision is contrary to a policy of the institution
that is expressly based on reasons of conscience and if the policy
was timely communicated to the patient or to a person then authorized
to make health care decisions for the patient.
4735. A health care provider or health care institution may
decline to comply with an individual health care instruction or
health care decision that requires medically ineffective health care
or health care contrary to generally accepted health care standards
applicable to the health care provider or institution.
4736. A health care provider or health care institution that
declines to comply with an individual health care instruction or
health care decision shall do all of the following:
(a) Promptly so inform the patient, if possible, and any person
then authorized to make health care decisions for the patient.
(b) Unless the patient or person then authorized to make health
care decisions for the patient refuses assistance, immediately make
all reasonable efforts to assist in the transfer of the patient to
another health care provider or institution that is willing to comply
with the instruction or decision.
(c) Provide continuing care to the patient until a transfer can be
accomplished or until it appears that a transfer cannot be
accomplished. In all cases, appropriate pain relief and other
palliative care shall be continued.
CHAPTER 6. IMMUNITIES AND LIABILITIES
4740. A health care provider or health care institution acting in
good faith and in accordance with generally accepted health care
standards applicable to the health care provider or institution is
not subject to civil or criminal liability or to discipline for
unprofessional conduct for any actions in compliance with this
division, including, but not limited to, any of the following
conduct:
(a) Complying with a health care decision of a person apparently
having authority to make a health care decision for a patient,
including a decision to withhold or withdraw health care.
(b) Declining to comply with a health care decision of a person
based on a belief that the person then lacked authority.
(c) Complying with an advance health care directive and assuming
that the directive was valid when made and has not been revoked or
terminated.
(d) Declining to comply with an individual health care instruction
or health care decision, in accordance with Sections 4734 to 4736,
inclusive.
4741. A person acting as agent or surrogate under this part is
not subject to civil or criminal liability or to discipline for
unprofessional conduct for health care decisions made in good faith.
4742. (a) A health care provider or health care institution that
intentionally violates this part is subject to liability to the
aggrieved individual for damages of two thousand five hundred dollars
($2,500) or actual damages resulting from the violation, whichever
is greater, plus reasonable attorney's fees.
(b) A person who intentionally falsifies, forges, conceals,
defaces, or obliterates an individual's advance health care directive
or a revocation of an advance health care directive without the
individual's consent, or who coerces or fraudulently induces an
individual to give, revoke, or not to give an advance health care
directive, is subject to liability to that individual for damages of
ten thousand dollars ($10,000) or actual damages resulting from the
action, whichever is greater, plus reasonable attorney's fees.
(c) The damages provided in this section are cumulative and not
exclusive of any other remedies provided by law.
4743. Any person who alters or forges a written advance health
care directive of another, or willfully conceals or withholds
personal knowledge of a revocation of an advance directive, with the
intent to cause a withholding or withdrawal of health care necessary
to keep the patient alive contrary to the desires of the patient, and
thereby directly causes health care necessary to keep the patient
alive to be withheld or withdrawn and the death of the patient
thereby to be hastened, is subject to prosecution for unlawful
homicide as provided in Chapter 1 (commencing with Section 187) of
Title 8 of Part 1 of the Penal Code.
PART 3. JUDICIAL PROCEEDINGS
CHAPTER 1. GENERAL PROVISIONS
4750. Subject to this division:
(a) An advance health care directive is effective and exercisable
free of judicial intervention.
(b) A health care decision made by an agent for a principal is
effective without judicial approval.
(c) A health care decision made by a surrogate for a patient is
effective without judicial approval.
(d) A health care decision made pursuant to Chapter 4 (commencing
with Section 4720) is effective without judicial approval.
4751. The remedies provided in this part are cumulative and not
exclusive of any other remedies provided by law.
4752. Except as provided in Section 4753, this part is not
subject to limitation in an advance health care directive.
4753. (a) Subject to subdivision (b), an advance health care
directive may expressly eliminate the authority of a person listed in
Section 4765 to petition the court for any one or more of the
purposes enumerated in Section 4766, if both of the following
requirements are satisfied:
(1) The advance directive is executed by an individual having the
advice of a lawyer authorized to practice law in the state where the
advance directive is executed.
(2) The individual's lawyer signs a certificate stating in
substance: "I am a lawyer authorized to practice law in the state
where this advance health care directive was executed, and __________
(insert name) was my client at the time this advance directive was
executed. I have advised my client concerning his or her rights in
connection with this advance directive and the applicable law and the
consequences of signing or not signing this advance directive, and
my client, after being so advised, has executed this advance
directive."
(b) An advance health care directive may not limit the authority
of the following persons to petition under this part:
(1) The conservator of the person, with respect to a petition
relating to an advance directive, for a purpose specified in
subdivision (b) or (d) of Section 4766.
(2) The agent, with respect to a petition relating to a power of
attorney for health care, for a purpose specified in subdivision (b)
or (c) of Section 4766.
4754. There is no right to a jury trial in proceedings under this
division.
4755. Except as otherwise provided in this division, the general
provisions in Division 3 (commencing with Section 1000) apply to
proceedings under this division.
CHAPTER 2. JURISDICTION AND VENUE
4760. (a) The superior court has jurisdiction in proceedings
under this division.
(b) The court in proceedings under this division is a court of
general jurisdiction and the court, or a judge of the court, has the
same power and authority with respect to the proceedings as otherwise
provided by law for a superior court, or a judge of the superior
court, including, but not limited to, the matters authorized by
Section 128 of the Code of Civil Procedure.
4761. The court may exercise jurisdiction in proceedings under
this division on any basis permitted by Section 410.10 of the Code of
Civil Procedure.
4762. Without limiting Section 4761, a person who acts as an
agent under a power of attorney for health care or as a surrogate
under this division is subject to personal jurisdiction in this state
with respect to matters relating to acts and transactions of the
agent or surrogate performed in this state or affecting a patient in
this state.
4763. The proper county for commencement of a proceeding under
this division shall be determined in the following order of priority:
(a) The county in which the patient resides.
(b) The county in which the agent or surrogate resides.
(c) Any other county that is in the patient's best interest.
CHAPTER 3. PETITIONS, ORDERS, APPEALS
4765. Subject to Section 4753, a petition may be filed under this
part by any of the following persons:
(a) The patient.
(b) The patient's spouse, unless legally separated.
(c) A relative of the patient.
(d) The patient's agent or surrogate, including a member of a
surrogate committee.
(e) The conservator of the person of the patient.
(f) The court investigator, described in Section 1454, of the
county where the patient resides.
(g) The public guardian of the county where the patient resides.
(h) The supervising health care provider or health care
institution involved with the patient's care.
(i) Any other interested person or friend of the patient.
4766. A petition may be filed under this part for any one or more
of the following purposes:
(a) Determining whether or not the patient has capacity to make
health care decisions.
(b) Determining whether an advance health care directive is in
effect or has terminated.
(c) Determining whether the acts or proposed acts of an agent or
surrogate are consistent with the patient's desires as expressed in
an advance health care directive or otherwise made known to the court
or, where the patient's desires are unknown or unclear, whether the
acts or proposed acts of the agent or surrogate are in the patient's
best interest.
(d) Declaring that the authority of an agent or surrogate is
terminated, upon a determination by the court that the agent or
surrogate has made a health care decision for the patient that
authorized anything illegal or upon a determination by the court of
both of the following:
(1) The agent or surrogate has violated, has failed to perform, or
is unfit to perform, the duty under an advance health care directive
to act consistent with the patient's desires or, where the patient's
desires are unknown or unclear, is acting (by action or inaction) in
a manner that is clearly contrary to the patient's best interest.
(2) At the time of the determination by the court, the patient
lacks the capacity to execute or to revoke an advance health care
directive or disqualify a surrogate.
(e) For the purposes of this section, "surrogate" includes a
surrogate committee under Chapter 4 (commencing with Section 4720) of
Part 2.
4767. A proceeding under this part is commenced by filing a
petition stating facts showing that the petition is authorized under
this part, the grounds of the petition, and, if known to the
petitioner, the terms of any advance health care directive in
question.
4768. The court may dismiss a petition if it appears that the
proceeding is not reasonably necessary for the protection of the
interests of the patient and shall stay or dismiss the proceeding in
whole or in part when required by Section 410.30 of the Code of Civil
Procedure.
4769. (a) Subject to subdivision (b), at least 15 days before the
time set for hearing, the petitioner shall serve notice of the time
and place of the hearing, together with a copy of the petition, on
the following:
(1) The agent or surrogate, if not the petitioner.
(2) The patient, if not the petitioner.
(b) In the case of a petition to compel a third person to honor
the authority of an agent or surrogate, notice of the time and place
of the hearing, together with a copy of the petition, shall be served
on the third person in the manner provided in Chapter 4 (commencing
with Section 413.10) of Title 5 of Part 2 of the Code of Civil
Procedure.
4770. The court in its discretion, on a showing of good cause,
may issue a temporary order prescribing the health care of the
patient until the disposition of the petition filed under Section
4766. If a power of attorney for health care is in effect and a
conservator (including a temporary conservator) of the person is
appointed for the principal, the court that appoints the conservator
in its discretion, on a showing of good cause, may issue a temporary
order prescribing the health care of the principal, the order to
continue in effect for the period ordered by the court but in no case
longer than the period necessary to permit the filing and
determination of a petition filed under Section 4766.
4771. In a proceeding under this part commenced by the filing of
a petition by a person other than the agent or surrogate, the court
may in its discretion award reasonable attorney's fees to one of the
following:
(a) The agent or surrogate, if the court determines that the
proceeding was commenced without any reasonable cause.
(b) The person commencing the proceeding, if the court determines
that the agent or surrogate has clearly violated the duties under the
advance health care directive.
PART 4. REQUEST TO FORGO RESUSCITATIVE MEASURES
4780. (a) As used in this part:
(1) "Request to forgo resuscitative measures" means a written
document, signed by (A) an individual, or a legally recognized
surrogate health care decisionmaker, and (B) a physician, that
directs a health care provider to forgo resuscitative measures for
the individual.
(2) "Request to forgo resuscitative measures" includes a
prehospital "do not resuscitate" form as developed by the Emergency
Medical Services Authority or other substantially similar form.
(b) A request to forgo resuscitative measures may also be
evidenced by a medallion engraved with the words "do not resuscitate"
or the letters "DNR," a patient identification number, and a 24-hour
toll-free telephone number, issued by a person pursuant to an
agreement with the Emergency Medical Services Authority.
4781. As used in this part, "health care provider" includes, but
is not limited to, the following:
(a) Persons described in Section 4621.
(b) Emergency response employees, including, but not limited to,
firefighters, law enforcement officers, emergency medical technicians
I and II, paramedics, and employees and volunteer members of legally
organized and recognized volunteer organizations, who are trained in
accordance with standards adopted as regulations by the Emergency
Medical Services Authority pursuant to Sections 1797.170, 1797.171,
1797.172, 1797.182, and 1797.183 of the Health and Safety Code to
respond to medical emergencies in the course of performing their
volunteer or employee duties with the organization.
4782. A health care provider who honors a request to forgo
resuscitative measures is not subject to criminal prosecution, civil
liability, discipline for unprofessional conduct, administrative
sanction, or any other sanction, as a result of his or her reliance
on the request, if the health care provider (a) believes in good
faith that the action or decision is consistent with this part, and
(b) has no knowledge that the action or decision would be
inconsistent with a health care decision that the individual signing
the request would have made on his or her own behalf under like
circumstances.
4783. (a) Forms for requests to forgo resuscitative measures
printed after January 1, 1995, shall contain the following: "By
signing this form, the surrogate acknowledges that this request to
forgo resuscitative measures is consistent with the known desires of,
and with the best interest of, the individual who is the subject of
the form."
(b) A substantially similar printed form is valid and enforceable
if all of the following conditions are met:
(1) The form is signed by the individual, or the individual's
legally recognized surrogate health care decisionmaker, and a
physician.
(2) The form directs health care providers to forgo resuscitative
measures.
(3) The form contains all other information required by this
section.
4784. In the absence of knowledge to the contrary, a health care
provider may presume that a request to forgo resuscitative measures
is valid and unrevoked.
4785. This part applies regardless of whether the individual
executing a request to forgo resuscitative measures is within or
outside a hospital or other health care institution.
4786. This part does not repeal or narrow laws relating to health
care decisionmaking.
PART 5. ADVANCE HEALTH CARE DIRECTIVE REGISTRY
4800. (a) The Secretary of State shall establish a registry
system through which a person who has executed a written advance
health care directive may register in a central information center,
information regarding the advance directive, making that information
available upon request to any health care provider, the public
guardian, or other person authorized by the registrant.
(b) Information that may be received and released is limited to
the registrant's name, social security or driver's license or other
individual identifying number established by law, if any, address,
date and place of birth, the intended place of deposit
or safekeeping of the written
advance health care directive, and the name and telephone number of
the agent and any alternative agent.
(c) The Secretary of State, at the request of the registrant, may
transmit the information received regarding the written advance
health care directive to the registry system of another jurisdiction
as identified by the registrant.
(d) The Secretary of State may charge a fee to each registrant in
an amount such that, when all fees charged to registrants are
aggregated, the aggregated fees do not exceed the actual cost of
establishing and maintaining the registry.
4801. The Secretary of State shall establish procedures to verify
the identities of health care providers, the public guardian, and
other authorized persons requesting information pursuant to Section
4800. No fee shall be charged to any health care provider, the
public guardian, or other authorized person requesting information
pursuant to Section 4800.
4802. The Secretary of State shall establish procedures to advise
each registrant of the following:
(a) A health care provider may not honor a written advance health
care directive until it receives a copy from the registrant.
(b) Each registrant must notify the registry upon revocation of
the advance directive.
(c) Each registrant must reregister upon execution of a subsequent
advance directive.
4803. Failure to register with the Secretary of State does not
affect the validity of any advance health care directive.
4804. Registration with the Secretary of State does not affect
the ability of the registrant to revoke the registrant's advance
health care directive or a later executed advance directive, nor does
registration raise any presumption of validity or superiority among
any competing advance directives or revocations.
4805. Nothing in this chapter shall be construed to require a
health care provider to request from the registry information about
whether a patient has executed an advance health care directive.
Nothing in this chapter shall be construed to affect the duty of a
health care provider to provide information to a patient regarding
advance health care directives pursuant to any provision of federal
law.
SEC. 41. Part 5 (commencing with Section 4900) of Division 4.5 of
the Probate Code is repealed.
SEC. 42. This act shall become operative on July 1, 2000.
SEC. 43. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.