Short answer – A living will, called an advance health care directive under California Prob. Code §4605, lets you put your medical treatment wishes in writing and name someone to make health care decisions for you if you become unable to make them yourself. Without one, doctors and hospitals turn to a default surrogate under Prob. Code §4712 instead of someone you chose, and your family is left guessing, or arguing, about what you would have wanted. It’s a document for any competent adult, whatever your age or health.
Without a directive, your provider picks a surrogate from a statutory list
If you become unable to communicate and there is no directive on file, California law still provides a fallback. Prob. Code §4712 lets a health care provider choose a surrogate when you have no agent or other legally recognized decisionmaker, usually from your spouse or registered domestic partner, an adult child, a parent, an adult sibling or grandchild, or a close relative or friend. A surrogate is bound by Prob. Code §4714 to follow your known wishes if you expressed any, or otherwise to act in your best interest.
The surrogate process works without going to court, because Prob. Code §4750 makes an advance health care directive, an agent’s decision, and a surrogate’s decision effective without judicial approval. That can be efficient, but the surrogate rule is a legal default. It leaves the choice to the provider, who works from a statutory list and may not pick the person you would have chosen, and it gives whoever is picked almost no guidance if you never wrote down what you wanted.
Families get stuck when spouses, adult children, and siblings don’t see end-of-life decisions the same way. The statute doesn’t resolve a disagreement between two people who are equally qualified, such as adult children with no named agent to break the tie. A signed directive removes that ambiguity by naming one person with clear authority, instead of leaving it to a list.
A directive names your agent and records your wishes in the same document
Under Prob. Code §4605, an advance health care directive can be either a health care instruction, a power of attorney for health care, or both combined into one document. California gives you a statutory form to use, but nothing requires you to use it, so an attorney can draft something more tailored to your situation if the fill-in-the-blank version does not fit.
Whichever version you use, Prob. Code §4701 lays out a four-part structure: a power of attorney for health care naming your agent, written instructions about the treatment you do or do not want, an organ donation election, and a section naming your primary physician. You don’t have to fill in every part. The form is built so that naming an agent and writing down your wishes happen in the same document, instead of two separate ones.
Your agent’s authority starts when your physician finds you can’t decide, unless you choose otherwise
By default, under Prob. Code §4701, Part 1.3, your agent’s authority to make health care decisions starts once your physician determines you lack the capacity to make those decisions yourself. You aren’t required to use the default. You can specify that your agent’s authority begins immediately upon signing, which some people prefer if they travel frequently or want their agent involved in decisions well before any capacity question arises.
Some decisions stay outside any directive, however you word it, and even a fully authorized agent can’t make them. Prob. Code §4652 lists them: commitment to a mental health facility, convulsive treatment, psychosurgery, sterilization, and abortion.
Your money needs a separate document
A health care directive and a financial power of attorney are different documents, and they sit in different parts of the Probate Code. The health care directive is in Division 4.7. A financial power of attorney is in Division 4.5, and it covers your money, property, and business affairs rather than your medical care.
The financial side has its own rules about when authority starts and stops. A durable financial power of attorney, governed by Prob. Code §4124, keeps working even after you lose capacity, which is the entire point of naming someone in advance. A non-durable power of attorney does the opposite. Under Prob. Code §4155, a non-durable power of attorney terminates the moment you become incapacitated, which is usually the moment you need it most. A complete incapacity plan needs both pieces done correctly, someone authorized to handle your finances and someone authorized to handle your health care, because one document rarely covers both well. See our power of attorney page for how the two pieces fit together.
| Health care directive | Financial power of attorney | |
|---|---|---|
| Covers | Your medical treatment wishes and an agent for health care decisions | Your money, property, and business affairs |
| Probate Code | Division 4.7 | Division 4.5 |
| Who acts | Someone authorized to handle your health care | Someone authorized to handle your finances |
| If you lose capacity | Agent’s authority starts once your physician determines you lack capacity, unless you choose immediately upon signing | A durable power keeps working; a non-durable one terminates when you become incapacitated |
Every competent adult needs to sign one, with two witnesses or a notary
Every competent adult needs to sign one, whatever their health or age. Incapacity can come from a car accident, a stroke, a surgical complication, or any number of events that have nothing to do with how old you are or how healthy you were the day before.
Prob. Code §4701, Part 5, sets the execution requirements: the directive must be signed and dated, and it must either be witnessed by two qualified witnesses or notarized. Skip that step and the document isn’t valid no matter how well it states your wishes.
An advance health care directive works alongside your other planning documents, not instead of them. A will or living trust addresses what happens to your property after you die. A directive addresses decisions made while you are alive but unable to speak for yourself. Most complete estate plans include both, because they solve two different problems.
Get one signed before you need it
If you don’t currently have an advance health care directive, that’s worth fixing now. Talk to an estate planning attorney about who should serve as your health care agent, what your treatment preferences are, when you want your agent’s authority to start, and how to get the document signed and witnessed or notarized the way California law requires. Ridley Law can walk you through the whole process, including choosing an agent and executing the paperwork correctly. See our process page for what that looks like, or call 805-244-5291.
See also: living will in the California estate planning glossary.
Frequently asked questions
What does an advance health care directive cover?
It can be a health care instruction, a power of attorney for health care, or both combined into one document (Prob. Code §4605). You can use California’s statutory form or have an attorney draft something more tailored to your situation.
How is this different from a financial power of attorney?
A financial power of attorney covers your money, property, and business affairs rather than your medical care, and it sits in Division 4.5 of the Probate Code. The health care directive is in Division 4.7.
When does your agent’s authority kick in?
By default, once your physician determines you lack the capacity to make health care decisions yourself. You can specify that your agent’s authority begins immediately upon signing.
Who decides if you never signed a directive?
A health care provider can choose a surrogate under Prob. Code §4712, usually from your spouse or registered domestic partner, an adult child, a parent, an adult sibling or grandchild, or a close relative or friend.
Who needs to sign one, and what does signing require?
Every competent adult. The directive must be signed and dated, and it must either be witnessed by two qualified witnesses or notarized.
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