BILL NUMBER: AB 891 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 17, 1999
AMENDED IN SENATE JULY 8, 1999
AMENDED IN ASSEMBLY MAY 27, 1999
AMENDED IN ASSEMBLY APRIL 27, 1999
AMENDED IN ASSEMBLY APRIL 15, 1999
INTRODUCED BY Assembly Member Alquist
FEBRUARY 25, 1999
An act to amend Section 8205 of the Government Code, to amend
Sections 1569.156, 1584, 1599.73, 7100, 7151, and 24179.5 of, and to
repeal Chapter 3.9 (commencing with Section 7185) of Part 1 of
Division 7 of the Health and Safety Code, to amend Sections 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, and to amend
Section 14110.8 of the Welfare and Institutions Code, relating to
health care decisions.
LEGISLATIVE COUNSEL'S DIGEST
AB 891, as amended, 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, 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 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 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. 3. Section 1584 of the Health and Safety Code is amended to
read:
1584. (a) An adult day health care center that provides care for
adults with Alzheimer's disease and other dementias may install for
the safety and security of those persons secured perimeter fences or
egress control devices of the time-delay type on exit doors.
(b) As used in this section, "egress control device" means a
device that precludes the use of exits for a predetermined period of
time. These devices shall not delay any participant's departure from
the center for longer than 30 seconds. Center staff may attempt to
redirect a participant who attempts to leave the center.
(c) Adult day health care centers installing security devices
pursuant to this section shall meet all of the following
requirements:
(1) The center shall be subject to all fire and building codes,
regulations, and standards applicable to adult day health care
centers using egress control devices or secured perimeter fences and
shall receive a fire clearance from the fire authority having
jurisdiction for the egress control devices or secured perimeter
fences.
(2) The center shall maintain documentation of diagnosis by a
physician of a participant's Alzheimer's disease or other dementia.
(3) The center shall provide staff training regarding the use and
operation of the egress control devices utilized by the center, the
protection of participants' personal rights, wandering behavior and
acceptable methods of redirection, and emergency evacuation
procedures for persons with dementia.
(4) All admissions to the center shall continue to be voluntary on
the part of the participant or with consent of the participant's
conservator, an agent of the participant under a power of attorney
health care, or other person who has the authority to act on behalf
of the participant. Persons who have the authority to act on behalf
of the participant include the participant's spouse or closest
available relative.
(5) The center shall inform all participants, conservators,
agents, and persons who have the authority to act on behalf of
participants of the use of security devices. The center shall
maintain a signed participation agreement indicating the use of the
devices and the consent of the participant, conservator, agent, or
person who has the authority to act on behalf of the participant.
The center shall retain the original statement in the participant's
files at the center.
(6) The use of egress control devices or secured perimeter fences
shall not substitute for adequate staff. Staffing ratios shall at
all times meet the requirements of applicable regulations.
(7) Emergency fire and earthquake drills shall be conducted at
least once every three months, or more frequently as required by a
county or city fire department or local fire prevention district.
The drills shall include all center staff and volunteers providing
participant care and supervision. This requirement does not preclude
drills with participants as required by regulations.
(8) The center shall develop a plan of operation approved by the
department that includes a description of how the center is to be
equipped with egress control devices or secured perimeter fences that
are consistent with regulations adopted by the State Fire Marshal
pursuant to Section 13143. The plan shall include, but not be
limited to, the following:
(A) A description of how the center will provide training for
staff regarding the use and operation of the egress control device
utilized by the center.
(B) A description of how the center will ensure the protection of
the participant's personal rights consistent with applicable
regulations.
(C) A description of the center's emergency evacuation procedures
for persons with Alzheimer's disease and other dementias.
(d) This section does not require an adult day health care center
to use security devices in providing care for persons with Alzheimer'
s disease and other dementias.
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 residents having capacity to make health care decisions to
execute 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 agent under a power of attorney for health care governed by
Division 4.7 (commencing with Section 4600) 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 agent under a power of attorney for health care that
expressly authorizes or does not limit the authority of the 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 does not apply to an adult 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, Division 4.7 (commencing with Section 4600) of the
Probate Code prevails over the provisions of this chapter.
SEC. 9. Section 1302 of the Probate Code is amended to read:
1302. With respect to a power of attorney 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 4541, except an order pursuant
to subdivision (c) of Section 4541.
(b) An order dismissing the petition or denying a motion to
dismiss under Section 4543.
SEC. 10. 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. 11. 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.
SEC. 12. Section 2355 of the Probate Code is amended to read:
2355. (a) If the conservatee has been adjudicated to lack the
capacity to make health care decisions, the conservator has the
exclusive authority to make health care decisions for the conservatee
that the conservator in good faith based on medical advice
determines to be necessary. 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 the health care,
whether or not the conservatee objects. In this case, the health
care decision of the conservator alone is sufficient and no person is
liable because the 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. 13. 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 a valid and effective advance
health care directive under the Health Care Decisions Law (Division
4.7 (commencing with Section 4600)).
SEC. 14. The heading of Part 7 (commencing with Section 3200) of
Division 4 of the Probate Code is amended to read:
PART 7. CAPACITY DETERMINATIONS AND HEALTH CARE DECISIONS FOR
ADULT WITHOUT CONSERVATOR
SEC. 15. Section 3200 of the Probate Code is amended to read:
3200. As used in this 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 for whom a health care decision needs to be made.
SEC. 16. 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 make a health care decision concerning an existing
or continuing condition.
(b) A petition may be filed to determine that a patient lacks the
capacity to make a health care decision concerning specified
treatment for an existing or continuing condition, and further for an
order authorizing a designated person to 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).
SEC. 17. 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.
(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 health care institution in
which the patient is located if the patient is in a health care
institution.
(f) The public guardian or other county officer designated by the
board of supervisors of the county in which the patient is located or
resides or is temporarily living.
SEC. 18. Section 3204 of the Probate Code is amended to read:
3204. The petition shall state, or set forth by a medical
declaration attached to the petition, all of the following known to
the petitioner at the time the petition is filed:
(a) The condition of the patient's health that requires treatment.
(b) The recommended health care that is considered to be medically
appropriate.
(c) The threat to the patient's condition if authorization for the
recommended health care is delayed or denied by the court.
(d) The predictable or probable outcome of the recommended health
care.
(e) The medically available alternatives, if any, to the
recommended health care.
(f) The efforts made to obtain consent from the patient.
(g) If the petition is filed by a person on behalf of a health
care institution, the name of the person to be designated to give
consent to the recommended 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 that are impaired, and 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 health care or inability to participate in a
decision about the recommended 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. 19. 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, 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, 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 declaration attached to the petition or in a
medical declaration presented to the court.
(2) The desirability, where the condition of the patient permits,
of giving adequate notice to all interested persons.
SEC. 20. 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 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. 21. Section 3208 of the Probate Code is amended to read:
3208. (a) Except as provided in subdivision (b), the court may
make an order authorizing the recommended health care for the patient
and designating a person to give consent to the recommended health
care on behalf of the patient if the court determines from the
evidence all of the following:
(1) The existing or continuing condition of the patient's health
requires the recommended 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 consent to the recommended health
care.
(b) 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.
SEC. 22. 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. 23. 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 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 health care in an
emergency case in which the health care is required because (1) the
health care is required for the alleviation of severe pain or (2) the
patient has a medical condition 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. 24. 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 a valid advance
health care directive under the Health Care Decisions Law, Division
4.7 (commencing with Section 4600).
SEC. 25. 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. 26. 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 Sections 4154 and
4697.
SEC. 27. 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) 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. 28. 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).
SEC. 29. 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 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. 30. 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.
SEC. 31. 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.
SEC. 32. 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 a statutory form power of
attorney under Part 3 (commencing with Section 4400).
SEC. 33. 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.
(c) A successor attorney-in-fact is not liable for the actions of
the predecessor attorney-in-fact.
SEC. 34. 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 is not subject to limitation in the power of
attorney.
SEC. 35. Section 4260 of the Probate Code is amended to read:
4260. This article does not apply to statutory form powers of
attorney under Part 3 (commencing with Section 4400).
SEC. 36. Section 4265 of the Probate Code is amended to read:
4265. A power of attorney may not authorize an attorney-in-fact
to make, publish, declare, amend, or revoke the principal's will.
SEC. 37. 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. 38. Part 4 (commencing with Section 4600) of Division 4.5 of
the Probate Code is repealed.
SEC. 39. 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 the patient.
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."
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 written advance health care directive is legally
sufficient if all of the following requirements are satisfied:
(a) The advance directive contains the date of its execution.
(b) The advance directive is signed either (1) by the patient or
(2) in the patient's name by another adult in the patient's presence
and at the patient's direction.
(c) The advance directive is either (1) acknowledged before a
notary public or (2) signed by at least two witnesses who satisfy the
requirements of Sections 4674 and 4675.
4674. If the written advance health care directive is signed by
witnesses, as provided in Section 4673, the following requirements
shall be satisfied:
(a) The witnesses shall be adults.
(b) Each witness signing the advance directive shall witness
either the signing of the advance directive by the patient or the
patient's acknowledgment of the signature or the advance directive.
(c) None of the following persons may act as a witness:
(1) The patient's health care provider or an employee of the
patient's health care provider.
(2) The operator or an employee of a community care facility.
(3) The operator or an employee of a residential care facility for
the elderly.
(4) The agent, where the advance directive is a power of attorney
for health care.
(d) Each witness shall make the following declaration in
substance:
"I declare under penalty of perjury under the laws of California
(1) that the individual who signed or acknowledged this advance
health care directive is personally known to me, or that the
individual's identity was proven to me by convincing evidence, (2)
that the individual signed or acknowledged this advance directive in
my presence, (3) that the individual appears to be of sound mind and
under no duress, fraud, or undue influence, (4) that I am not a
person appointed as agent by this advance directive, and (5) 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."
(e) At least one of the witnesses shall be an individual who is
neither related to the patient by blood, marriage, or adoption, nor
entitled to any portion of the patient's estate upon the patient's
death under a will existing when the advance directive is executed or
by operation of law then existing.
(f) The witness satisfying the requirement of subdivision (e)
shall also sign the following declaration in substance:
"I further declare under penalty of perjury under the laws of
California that I am not related to the individual executing this
advance health care directive by blood, marriage, or adoption, and,
to the best of my knowledge, I am not entitled to any part of the
individual's estate upon his or her death under a will now existing
or by operation of law."
(g) The provisions of this section applicable to witnesses do not
apply to a notary public before whom an advance health care directive
is acknowledged.
4675. (a) If an individual is a patient in a skilled nursing
facility when a written advance health care directive is executed,
the advance directive 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.
(b) 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.
4676. (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.
4677. 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.
4678. 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 it satisfies the 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.
4689. Nothing in this division authorizes an agent under a power
of attorney for health care to make a health care decision if the
principal objects to the decision. If the principal objects to the
health care decision of the agent under a power of attorney, the
matter shall be governed by the law that would apply if there were no
power of attorney for health care.
4690. If the principal becomes wholly or partially incapacitated,
or if there is a question concerning the capacity of the principal,
the agent may consult with a person previously designated by the
principal for this purpose, and may also consult with and obtain
information needed to carry out the agent's duties from the principal'
s spouse, physician, attorney, a member of the principal's family, or
other person, including a business entity or government agency, with
respect to matters covered by the power of attorney for health care.
A person from whom information is requested shall disclose relevant
information to the agent. Disclosure under this section is not a
waiver of any privilege that may apply to the information disclosed.
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 coworker.)
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.
The form must be signed by two qualified witnesses or acknowledged
before a notary public. 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) SIGNATURE: Sign and date the form here:
_______________________________
____________________________________
(date) (sign your name)
_______________________________
____________________________________
(address) (print your name)
_______________________________
(city) (state)
(5.3) STATEMENT OF WITNESSES: I declare under penalty of perjury
under
the laws of California (1) that the individual who signed or
acknowledged
this advance health care directive is personally known to me, or
that the
individual's identity was proven to me by convincing evidence (2)
that the
individual signed or acknowledged this advance directive in my
presence,
(3) that the individual appears to be of sound mind and under no
duress,
fraud, or undue influence, (4) that I am not a person appointed as
agent
by this advance directive, and (5) 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
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.
First witness Second witness
______________________________
____________________________________
(print name) (print name)
______________________________
____________________________________
(address) (address)
______________________________
____________________________________
(city) (state) (city) (state)
______________________________
____________________________________
(signature of witness) (signature of witness)
______________________________
____________________________________
(date) (date)
(5.4) ADDITIONAL STATEMENT OF WITNESSES: At least one of the
above
witnesses must also sign the following declaration:
I further declare under penalty of perjury under the laws of
California
that I am not related to the individual executing this advance
health
care directive by blood, marriage, or adoption, and to the best of
my
knowledge, I am not entitled to any part of the individual's estate
upon his or her death under a will now existing or by operation of
law.
______________________________
_______________________________________ (signature of witness)
(signature of witness)
______________________________
____________________________________
(signature of witness) (signature of witness)
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
4675
of the Probate Code.
______________________________
____________________________________
(date) (sign your name)
______________________________
____________________________________
(address) (print your name)
______________________________
(city) (state)
CHAPTER 3. HEALTH CARE SURROGATES
4711. A patient may designate an adult as a surrogate to make
health care decisions by personally informing the supervising health
care provider. An oral designation of a surrogate shall be
promptly recorded in the patient's health care record and is
effective only during the course of treatment or illness or during
the stay in the health care institution when the designation is made.
4714. A surrogate, including a person acting as 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.
CHAPTER 4. 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 5. 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 that the
health care provider or health care institution believes in good
faith has the 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.
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.
(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.
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. Section 14110.8 of the Welfare and Institutions Code is
amended to read:
14110.8. (a) For the purposes of this section:
(1) "Facility" means a nursing facility.
(2) "Patient" means a person who is a facility resident and a
Medi-Cal beneficiary and whose facility care is being paid for in
whole or in part by Medi-Cal.
(3) "Agent" means a person who manages, uses, or controls those
funds or assets that legally may be used to pay the patient's share
of cost and other charges not paid for by the Medi-Cal program.
(4) "Responsible party" means a person other than the patient or
potential patient, who, by virtue of signing or cosigning an
admissions agreement of a nursing facility, either together with, or
on behalf of, a potential patient, becomes personally responsible or
liable for payment of any portion of the charges incurred by the
patient while in the facility. A person who signs or cosigns a
facility's admissions agreement by virtue of being an agent under a
power of attorney for health care or an attorney-in-fact under a
durable power of attorney executed by the potential patient, a
conservator of the person or estate of the potential patient, or a
representative payee, is not a responsible party under this section,
and does not thereby assume personal responsibility or liability for
payment of any charges incurred by the patient, except to the extent
that the person, or the patient's conservator or representative payee
is an agent as defined in paragraph (3).
(b) No facility may require or solicit, as a condition of
admission into the facility, that a Medi-Cal beneficiary have a
responsible party sign or cosign the admissions agreement. No
facility may accept or receive, as a condition of admission into the
facility, the signature or cosignature of a responsible party for a
Medi-Cal beneficiary.
(c) A facility may require, as a condition of admission, where a
patient has an agent, that the patient's agent sign or cosign the
admissions agreement and agree to distribute to the facility promptly
when due, the share of cost and any other charges not paid for by
the Medi-Cal program which the patient or his or her agent has agreed
to pay. The financial obligation of the agent shall be limited to
the amount of the patient's funds received but not distributed to the
facility. A new agent who did not sign or cosign the admissions
agreement shall be held responsible to distribute funds in accordance
with this section.
(d) When a patient on non-Medi-Cal status converts to Medi-Cal
coverage, any security deposit paid to the facility by the patient or
on the patient's behalf as a condition of admission to the facility
shall be returned and the obligations and responsibilities of the
patient or responsible party shall be null and void.
(e) Any agent who willfully violates the requirements of this
section is guilty of a misdemeanor, and upon conviction thereof,
shall be punished by a fine not to exceed two thousand five hundred
dollars ($2,500) or by imprisonment in the county jail not to exceed
180 days, or both.
SEC. 43. This act shall become operative on July 1, 2000.
SEC. 44. 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.