California Living Wills Laws

What is commonly called a living will is known in California as an advance healthcare directive. For purposes of this article, we’ll stick with “living will.”

Although it is an important part of estate planning, a living will is not the same as a last will and testament. Both are legal documents and smart ways to plan ahead. They can bring peace of mind to your family members and loved ones during a difficult time. A last will and testament is essentially an instruction guide for how to distribute your property after your death. Your living will is an instruction guide for your medical care and related end-of-life decisions if you become incapacitated.

In California, a living will serves as your healthcare instructions and can be a part of your Advance Health Care Directive (AHCD), which may include a Power of Attorney for Healthcare. This article will explain the requirements for a California living will, show you how to create or update one, and get you one step closer to having your wishes legally recognized.

California Requirements for a Living Will

California’s original living will statutes were previously known as the Natural Death Act and found in the state’s Health and Safety Code. Today, the California Probate Code is the primary source of state law governing AHCD living wills, outlining specific provisions. To be a valid legal document, your living will must meet several requirements.

Declarant Must Have Legal Capacity

The person making a living will is called the declarant. The declarant must be at least 18 years old (or an emancipated minor) and of sound mind.

Document Must Meet Specific Legal Requirements

The California Probate Code sets the requirements for a living will to be legal:

• In Writing: A living will may be printed or handwritten, but it must be in writing
• Signed and Dated: A living will must be signed and dated, with another adult signing in the declarant’s presence if they are unable to do so themselves
• Witnessed: A living will must be signed by two adult witnesses or notarized by a notary public
• Witness Requirements: The witnesses cannot be your health care agent (the person you name as your health care power of attorney), your healthcare provider (including its employees), or your residential care facility (including its employees)

Additional witness requirements include that at least one witness not be entitled to inherit your estate as a beneficiary. If you are in a skilled nursing facility, one witness must be a patient advocate or ombudsman. Digital signatures must meet specific requirements.

How To Make a Living Will in California

There are many resources available to help you create a living will in California. The California Probate Code includes an advance healthcare directive form template along with detailed instructions.

A living will is one part of an advance healthcare directive. The statutory form allows you to express your wishes regarding your healthcare decisions. This includes creating a living will, appointing a healthcare agent, and donating organs. Each section is optional.

Living Will: Instructions for Your Healthcare

Your living will is the instructions you put in place for your medical decisions if you become incapacitated. This can include end-of-life decisions. Your medical wishes can reflect what medical treatment you want to receive, as well as what medical treatment you don’t want to receive.

You can specify when you want to receive life-sustaining treatments that support or replace vital functions, such as a feeding tube or a ventilator to breathe for you. With a Do Not Resuscitate (DNR) directive, you can specify the circumstances in which you decline resuscitation.

You can also indicate when palliative care should be employed. Palliative care focuses on your comfort and quality of life when facing a terminal condition, including pain relief or management.

Healthcare Power of Attorney: Appoint a Decision Maker

You can also use the California Advance Health Care Directive form to appoint a Healthcare Power of Attorney (POA). With this section, you can choose someone you trust as your healthcare agent to make healthcare decisions on your behalf. By default, a California durable healthcare power of attorney only takes effect if you are incapacitated and only applies for the duration of your incapacity.

You can provide written instructions to your healthcare POA in a living will or authorize your agent to make decisions on your behalf based on what the agent knows about you. A healthcare agent must act in your best interest. If you name your spouse as your healthcare agent and later divorce, their authority as your healthcare agent terminates.

Do You Have To Use an Attorney To Create a Living Will?

You don’t have to use an attorney to create your living will. Either California’s statutory form or other available online tools may meet your goals, needs, and intentions. You may want to consider getting legal advice from a living will attorney if:

• Your medical history is significant
• Your family situation is complex
• You’re concerned about the potential for family conflict
• You want to integrate your living will into your comprehensive estate plan
• Your end-of-life wishes aren’t met by the statutory form
• You want the peace of mind that comes with a professionally drafted living will

Most California living will attorneys offer a free consultation.

Changing or Revoking Your Living Will in California

You can change or revoke your living will at any time, as long as you have legal capacity. The law is broad: “A patient having capacity may revoke all or part of an advance healthcare directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.” For example, you can revoke your living will with a signed document, by physically destroying the existing living will, or by verbally expressing your intent to revoke.

Work With a California Estate Planning Attorney

Incapacity can happen at any time. A living will expresses your wishes for your healthcare when you can’t. If you want to have a say in your healthcare decisions when incapacitated, the time to act is when you are healthy. Contact a California living will attorney to learn how a living will can be customized to reflect your wishes.