What is the difference between an advance health care directive and a power of attorney in California?

Families usually discover the gap between these two documents in a hospital hallway or at a bank counter, when the person who could have signed is no longer able to. Our estate planning page lists both under planning for incapacity. California keeps them in two different parts of the Probate Code: health care decisions in Division 4.7, beginning at section 4600, and powers of attorney for property in Division 4.5, beginning at section 4000. This page compares them using the current statutes and the statutory forms in sections 4701 and 4401.

How do you put each one in place, step by step?

1. Choose your agents. Pick a health care agent and alternates, and a financial agent (called the attorney-in-fact in the statute). They can be the same person, but they do not have to be.
2. Choose the forms. The statutory advance health care directive in section 4701 may be used but does not have to be, and you may complete or change any part of it (section 4700). For property, the Uniform Statutory Form Power of Attorney in section 4401 is one option; a custom durable power of attorney is another.
3. Sign the health care directive correctly. It must be dated and signed, and either notarized or signed by two qualified witnesses (section 4673). The witness rules are strict, as the table below shows.
4. Sign the power of attorney correctly. A power of attorney must be dated, signed and either notarized or signed by two adult witnesses, and the agent cannot be a witness (sections 4121 and 4122). The statutory form must have the principal's signature acknowledged, which means notarized (section 4402).
5. Use a patient advocate if you are in a skilled nursing facility. A directive signed by a patient in a skilled nursing facility is not effective unless a patient advocate or ombudsman signs as a witness, either as one of the two witnesses or in addition to the notary (section 4675).
6. Give out copies. The statutory directive tells you to give copies to your physician, other providers, any facility where you receive care and your agents, and it says a copy has the same effect as the original.
7. Keep the power of attorney where it can be used. The statutory warning for printed durable powers of attorney says one that may affect real property should be notarized so it can easily be recorded (section 4128).

How do the two documents compare?

What can each agent actually do?

A health care agent may make health care decisions to the same extent you could if you had capacity, and may also make certain decisions after death, such as an anatomical gift, an autopsy or disposition of remains (section 4683). The agent must follow your instructions and other known wishes, and otherwise decide in your best interest, considering your personal values (section 4684). An agent who is reasonably available has priority over other people in making decisions (section 4685). The agent also has the same right you have to receive and examine your medical information unless the directive says otherwise (section 4678). The statutory form adds limits: the agent cannot commit you to a mental health facility or consent to convulsive treatment, psychosurgery, sterilization or abortion for you.

A financial agent's powers come from the document. The statutory warning in section 4128 explains that a durable power of attorney can give the agent power to manage, sell and convey your real and personal property and to borrow against it, that the agent is entitled to reasonable payment unless you provide otherwise, and that the agent must act solely in your interest and keep your property separate. Some acts require express authority, including creating, changing or funding a trust, making gifts, changing survivorship interests and changing beneficiary designations (section 4264). No power of attorney can authorize an agent to make or change your will (section 4265).

What changes the answer?

When you want the agent to start

Under section 4682 a health care agent's authority starts only on a determination that you lack capacity and stops if you recover, unless the document provides otherwise. A financial power of attorney can be immediate or springing; in a springing power, you can name someone who decides conclusively, by a declaration under penalty of perjury, that the triggering event has happened (section 4129).

Whether the power of attorney is durable

A power of attorney survives your incapacity only if it says so, with words like "This power of attorney shall not be affected by subsequent incapacity of the principal" (section 4124). The statutory form is durable to the extent it contains similar language (section 4404). Without that sentence, the document may stop working at the moment it is most needed.

Where you live when you sign

Residents of skilled nursing facilities need the patient advocate or ombudsman as a witness to the health care directive (section 4675). A directive validly signed in another state is enforceable in California to the same extent as one signed here (section 4676).

Divorce and later documents

If your marriage to your health care agent is dissolved or annulled, the designation is revoked (section 4697), and a later directive revokes an earlier one to the extent they conflict (section 4698). For financial powers, the authority granted last controls where two powers of attorney are inconsistent (section 4130).

Whether you also have a trust

A trust's successor trustee manages property that is in the trust, while a financial agent handles property outside it. Because funding a trust requires express authority under section 4264, the power of attorney should say so if you want your agent to move assets into it; our guide to putting your house into a living trust explains the deed that funding a home requires. A transfer on death deed works differently: it has no effect during your life, and your agent or other fiduciary may still deal with the property (section 5650(a)). We compare the two tools in transfer on death deed or living trust.

A worked example

For example, imagine a hypothetical retired couple in Glendale, both 78. The husband has a stroke and cannot communicate. Years earlier he signed a statutory advance health care directive naming his wife as agent, with his son as alternate, and a durable power of attorney naming his son as financial agent.

At the hospital, his primary physician determines that he cannot make his own health care decisions, so his wife's authority begins (section 4682), and she has the same right he would have to see his medical records (section 4678). She makes treatment choices following the instructions he marked in Part 2 of the form. Meanwhile, the mortgage and utility bills are due from an account in his name alone. Because his power of attorney contains durable language, his son can pay them. If the son wanted to move that account into the couple's trust, he would need express authority for that in the document (section 4264).

Without either document, the family would likely be looking at a court petition, such as a conservatorship, which carries a $435 filing fee under Government Code section 70653. The example does not predict how a court would rule on any petition; it shows what each document lets the family do without one.

Common mistakes with incapacity documents

• Using the wrong witnesses. Your doctor's staff, a care facility employee or your agent cannot witness a health care directive, and at least one witness must be unrelated and not an heir (section 4674).
• Leaving out the durable language. A financial power of attorney without it may not survive incapacity (section 4124).
• Assuming a financial agent can change your estate plan. Trust changes, gifts and beneficiary changes need express authority (section 4264), and no agent can make your will (section 4265).
• Keeping the only copy in a drawer. The statutory directive tells you to give copies to your physician and agents.
• Forgetting the ombudsman in a skilled nursing facility. Without the patient advocate or ombudsman as a witness, the directive is not effective (section 4675).
• Never updating after a divorce. The health care designation of a former spouse is revoked automatically (section 4697), but the rest of your plan should be reviewed too.

What to do this week

1. Decide who you trust for medical decisions and who for money, and ask them whether they will serve.
2. Read the statutory directive in section 4701 and mark the end-of-life and pain relief choices that reflect your wishes.
3. Line up a notary or two witnesses who meet section 4674 for the directive.
4. Make sure your financial power of attorney includes durable language and says whether your agent may deal with your trust.
5. Give copies of the directive to your doctor and agents.
6. Review your will and beneficiary designations at the same time; a handwritten will has its own rules for validity.
7. If you are choosing a lawyer to prepare these, see our questions to ask before hiring an attorney.

Frequently asked questions

Is a living will the same as an advance health care directive?

In California, the advance health care directive can include written health care instructions, such as whether you want your life prolonged, as well as the appointment of an agent (sections 4670 and 4671). Part 2 of the statutory form is where those instructions go.

Do I need a lawyer to sign these documents?

California law expects some people to use printed forms on their own: section 4128 sets the warnings for durable power of attorney forms sold for use by a person without the advice of legal counsel. That same warning recommends getting help from an attorney or other qualified person if you do not understand any provision.

Can my health care agent overrule me?

No. Section 4689 says nothing in the law authorizes the agent to make a health care decision if you object to it.

Can a hospital require me to sign a directive?

No. A health care provider, facility or insurer may not require or prohibit signing or revoking a directive as a condition of care, admission or insurance (section 4677).

Does a power of attorney still work after I die?

Section 4305 treats the principal's death as something that ends the agent's authority: it protects acts done in good faith when the agent signs an affidavit that, at the time, the agent did not know of the death. After death, the estate passes through a will, trust or other transfer; if there is a trust, see the trustee's notice duties after a death. If there is no trust and the estate is modest, heirs may be able to use California's small estate procedures instead of probate.

What if family members disagree with the agent?

The Probate Code allows court petitions concerning a power of attorney (section 4541) and an advance health care directive (section 4766); each costs $435 to file under the statewide fee schedule. In Los Angeles County, the Probate Division hears these matters in courtrooms at the downtown courthouse described in our Stanley Mosk Courthouse guide.

How can Glendale Law help?

We prepare advance health care directives, durable powers of attorney and the rest of an incapacity plan, and we coordinate them with your trust and will so your agents have the authority they need. Planning now also helps your family avoid probate later, the cost of which we explain in how much probate costs in California. Call (818) 244-9000 or request a consultation.