Published: 2015-07-09
Key Benefits:
A power of attorney for health care is legally sufficient if it satisfies the requirements of Section 4673.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
(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.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
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.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
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.
(4) Authorizing the release of the records of the principal to the extent necessary for the agent to fulfill his or her duties as set forth in this division.
(Amended by Stats. 2006, Ch. 249, Sec. 2. Effective January 1, 2007.)
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.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
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.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
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.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
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.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
Where this division does not provide a rule governing agents under powers of attorney, the law of agency applies.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
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.
(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)
(a) 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, supervising health care provider, 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.
(b) A person described in subdivision (a) from whom information is requested shall disclose information that the agent requires to carry out his or her duties. Disclosure under this section is not a waiver of any privilege that may apply to the information disclosed.
(Amended by Stats. 2007, Ch. 130, Sec. 196. Effective January 1, 2008.)
