California Advance Health Care Directive Requirements

A written California advance health care directive must contain the date of its execution, be signed by the patient (or in the patient’s name by another adult in the patient’s presence and at the patient’s direction), and be either acknowledged before a notary public or signed by at least two qualifying witnesses — Cal. Prob. Code § 4673(a).

This page is a practitioner reference for attorneys and paralegals handling California matters. It summarizes statutory requirements — it is not legal advice and does not substitute for reading the current statute or consulting California counsel.

The governing statute

Advance directives are governed by Division 4.7 of the Probate Code, which § 4600 names the Health Care Decisions Law; Part 2 (§§ 4670–4743) is California’s enactment of the Uniform Health-Care Decisions Act. Division 4.7 has applied since July 1, 2000 to all advance directives regardless of execution date — including durable powers of attorney for health care and declarations under the former Natural Death Act — while preserving instruments valid under prior law (§ 4665).

California law permits, but does not require, an individual health care instruction and a power of attorney for health care to be combined in one document. Section 4605 defines “advance health care directive” to mean either an individual health care instruction or a power of attorney for health care. Section 4670 allows an individual instruction to be oral or written and conditioned on a specified event, while § 4671(a) allows a power of attorney for health care to both name an agent and include individual health care instructions.

Citation: Cal. Prob. Code, Division 4.7 (Health Care Decisions Law); execution at §§ 4673–4675 Official source: leginfo.legislature.ca.gov.

Execution requirements

Requirement	California rule	Citation
Who may execute	An adult having capacity may give an individual health care instruction or execute a power of attorney for health care.	§§ 4670, 4671(a)
Capacity standard	Ability to understand the nature and consequences of a decision and to make and communicate one, including — for proposed health care — its significant benefits, risks, and alternatives. Capacity is presumed (presumption affecting the burden of proof).	§§ 4609, 4657
Date	Required.	§ 4673(a)(1)
Signature	By the patient, or in the patient’s name by another adult in the patient’s presence and at the patient’s direction.	§ 4673(a)(2)
Notarization or witnesses	One or the other: acknowledged before a notary public, or signed by at least two witnesses satisfying §§ 4674 and 4675.	§ 4673(a)(3)
Witness disqualification	May not witness: the patient’s health care provider or that provider’s employee; the operator or an employee of a community care facility; the operator or an employee of a residential care facility for the elderly; the named agent.	§ 4674(c)
Disinterested witness	At least one witness must be neither related by blood, marriage, or adoption nor entitled to any portion of the patient’s estate under an existing will or by operation of law, and must sign a separate declaration saying so.	§ 4674(e), (f)
Witness declaration	Both witnesses declare under penalty of perjury, in substance, the five statements in § 4674(d).	§ 4674(d)
Notary exception	The § 4674 witness rules do not apply to a notary before whom the directive is acknowledged.	§ 4674(g)
Skilled nursing facility	If the patient is in a skilled nursing facility at execution, the directive is not effective unless a patient advocate or ombudsman designated by the Department of Aging signs as a witness — as one of the two witnesses or in addition to notarization.	§ 4675(a)
Electronic directive	Permitted, but notarization is mandatory (no witness alternative) and any digital signature must meet all seven requirements of § 4673(b).	§ 4673(b)
Statutory form	Yes, at § 4701. It “may, but need not, be used”; an individual may complete or modify all or any part.	§§ 4700, 4701
Agent disqualification	Except as provided in § 4659(b), the supervising health care provider, an employee of the health care institution where the patient is receiving care, and an operator or employee of a community care facility or residential care facility where the patient is receiving care may not act as the patient’s agent or surrogate.	§ 4659(a), (b)
Copies	A copy of a directive, revocation, or surrogate designation has the same effect as the original.	§ 4660

Two rows are where California directives most often fail. The § 4675 skilled-nursing-facility rule is absolute — not effective — and applies even to a notarized directive, because the ombudsman signature is required “in addition to notarization.” And § 4673(b) means a directive executed on an e-signature platform cannot use the two-witness route at all.

Where the statute is silent

The research behind this page captured Division 4.7 through § 4717. It does not include the provider-obligation and immunity provisions later in Part 2, the POLST / request-regarding-resuscitative-measures provisions, or Part 4’s judicial proceedings. The page therefore makes no claim about a provider’s duty to comply with a directive, conscience-based objection, immunity from liability, or how a California POLST interacts with a directive. Division 4.7 as researched also does not address remote online notarization — California notary authority sits in the Government Code — or HIPAA authorization language, though § 4678 gives a person authorized to make health care decisions the same rights as the patient to request, receive, examine, copy, and consent to disclosure of health care information.

Agent authority, statutory limits, and who decides without a directive

Unless the instrument provides otherwise, an agent’s authority becomes effective only upon a determination that the principal lacks capacity and ceases upon a determination that the principal has recovered capacity (§ 4682). Unless the written directive provides otherwise, the primary physician makes that determination (§ 4658).

When the agent’s authority is effective, and subject to limitations in the power of attorney for health care, the agent may make health care decisions to the same extent the principal could make them if the principal had capacity (§ 4683(a)). Section 4683(b) separately permits the agent to make four types of decisions that may be effective after the principal’s death: anatomical gifts, autopsy authorization, disposition of remains, and release of records. The agent must follow the principal’s instructions and other known wishes and, otherwise, decide according to the agent’s determination of the principal’s best interest while considering the principal’s known personal values (§ 4684). Unless the power of attorney provides otherwise, an agent who is known to the health care provider to be reasonably available and willing to act has priority over any other person (§ 4685).

Section 4652 limits the authority conferred by Division 4.7. The division does not authorize consent on a patient’s behalf to commitment to or placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization, or abortion. Section 4689 separately provides that nothing in the division authorizes an agent to make a health care decision the principal objects to; if the principal objects, the matter is governed by the law that would apply if there were no power of attorney for health care.

When a patient lacks capacity, § 4712(a) gives legally recognized health care decisionmakers the following descending order of priority: a surrogate designated under § 4711, an agent acting under an advance health care directive or power of attorney for health care, and a conservator or guardian with authority to make health care decisions.

Under § 4711, a patient may designate an adult surrogate by personally informing the supervising health care provider or a designee of the health care facility caring for the patient. The designation must be promptly recorded in the patient’s health care record. For its statutory duration, the designated surrogate takes priority over an agent previously named in a power of attorney for health care, although the surrogate designation does not itself revoke the agent’s designation.

Unless the patient specifies a shorter period, the surrogate designation remains effective only during the course of treatment or illness, during the institutional stay in which the designation was made, or for 60 days, whichever period is shorter (§ 4711(b)).

If a patient lacks capacity and has no legally recognized decisionmaker under § 4712(a), § 4712(b), subject to § 4715, permits a health care provider or facility designee to choose a surrogate who has demonstrated special care and concern for the patient, is familiar with the patient’s personal values and beliefs to the extent known, and is reasonably available and willing to serve. The surrogate may be selected from the patient’s spouse or domestic partner, adult child, parent, adult sibling, adult grandchild, or an adult relative or close personal friend. The statute does not establish a priority order within that list. A patient with capacity may disqualify a person from acting as surrogate by signed writing or by personally informing the supervising health care provider (§ 4715).

Revocation is asymmetric. Under § 4695(a), a patient with capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider; under § 4695(b), a patient with capacity may revoke all or any other part of the directive at any time and in any manner that communicates an intent to revoke, including orally. Dissolution or annulment of the principal’s marriage to the agent revokes that designation, which is revived if the principal remarries the agent (§ 4697), and a later conflicting directive revokes the earlier directive to the extent of the conflict (§ 4698).

Directives executed outside California

Section 4676(a) is the recognition rule: a written advance health care directive or similar instrument executed in another state or jurisdiction, in compliance with the law of that jurisdiction or of California, is valid and enforceable in California to the same extent as one validly executed here. Section 4676(b) adds a practical layer — absent knowledge to the contrary, a physician or other health care provider may presume that a written directive is valid, whether executed here or elsewhere.

Two cautions for a multi-state matter. First, § 4676 validates the instrument; it does not exempt the agent from § 4659’s disqualifications or authorize what § 4652 forbids. Second, if the client is or may become a patient in a California skilled nursing facility, § 4675’s ombudsman-witness requirement attaches to directives executed in that setting — so a directive signed out of state before admission is not the same problem as one signed at the bedside after.

Frequently asked questions: California Advance Health Care Directive Requirements

Who can witness a California advance health care directive?

Under Cal. Prob. Code § 4674(c), the patient’s health care provider and that provider’s employees, the operator or an employee of a community care facility, the operator or an employee of a residential care facility for the elderly, and the agent named in the directive are all disqualified. Section 4674(e) additionally requires that at least one of the two witnesses be neither related to the patient by blood, marriage, or adoption nor entitled to any part of the patient’s estate, and § 4674(f) requires that witness to sign a separate declaration to that effect. Under § 4674(g), these rules do not apply to a notary public before whom the directive is acknowledged.

Does a California advance health care directive have to be notarized?

Not usually — Cal. Prob. Code § 4673(a)(3) allows either acknowledgment before a notary public or signature by two qualifying witnesses. There are two exceptions. An electronic advance health care directive must be notarized; the two-witness alternative is unavailable, and any digital signature must satisfy all seven requirements of § 4673(b). And under § 4675, a directive executed while the patient is in a skilled nursing facility is not effective unless a patient advocate or ombudsman designated by the Department of Aging signs as a witness — either as one of the two witnesses or in addition to notarization.

What decisions does California’s Health Care Decisions Law not authorize an agent to make?

Cal. Prob. Code § 4652 provides that Division 4.7 does not authorize consent on a patient’s behalf to commitment to or placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization, or abortion. Section 4689 separately provides that nothing in the division authorizes an agent to make a health care decision the principal objects to; if the principal objects, the matter is governed by the law that would apply if there were no power of attorney for health care.

Who makes health care decisions in California if there is no advance directive?

If a patient lacks capacity and has no advance health care directive or power of attorney for health care, § 4712(a) gives priority to a surrogate designated under § 4711 and then to a conservator or guardian with health care authority. If the patient has no legally recognized decision maker under § 4712(a), § 4712(b), subject to § 4715, permits a health care provider or facility designee to choose a surrogate who has demonstrated special care and concern for the patient, is familiar with the patient’s personal values and beliefs to the extent known, and is reasonably available and willing to serve. The surrogate may be selected from the patient’s spouse or domestic partner, adult child, parent, adult sibling, adult grandchild, or an adult relative or close personal friend. The statute does not establish a priority order within that list.

Does California recognize an advance directive executed in another state?

Yes. Cal. Prob. Code § 4676(a) provides that a written advance health care directive or similar instrument executed in another state or jurisdiction, in compliance with the law of that jurisdiction or of California, is valid and enforceable in California to the same extent as a directive validly executed here. Section 4676(b) permits a physician or other health care provider, absent knowledge to the contrary, to presume that a written directive is valid.\

How is a California advance health care directive revoked?

It depends on which part. Under Cal. Prob. Code § 4695(a), a patient with capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider. Under § 4695(b), a patient with capacity may revoke all or any other part of the directive at any time and in any manner that communicates an intent to revoke, including orally. Dissolution or annulment of the principal’s marriage to the agent revokes that designation, which is revived if the principal remarries the agent (§ 4697), and a later conflicting directive revokes the earlier directive to the extent of the conflict (§ 4698).

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