Power of attorney and health care directive, explained
Two documents with two different jobs, and how California requires them to be signed.
This page is general education, not legal advice. My Legacy Management is an insurance agency, not a law firm. Laws change and every family is different, so talk to a California-licensed attorney about your documents and a tax professional about taxes.
What is the difference between a power of attorney and an advance health care directive?
A durable power of attorney lets a person you choose handle your money and property if you cannot. An advance health care directive names a person to make your medical decisions and records the treatment you do or do not want. In California, each one must be dated and signed, and then either notarized or signed by two qualifying witnesses.
The two documents side by side
| Durable power of attorney | Advance health care directive | |
|---|---|---|
| What it covers | Money and property: paying bills, managing accounts, handling real estate and taxes, as far as the document allows. | Health care: who makes medical decisions for you, and the treatment you do or do not want. |
| Who you name | An agent, also called an attorney-in-fact, and usually a backup. | A health care agent, and usually a backup. |
| When it starts | Right away, or only if you become incapacitated. It depends on how the document is written. | In most forms, when your doctor decides you cannot make or communicate your own health decisions. The form can say otherwise. |
| California signing rule | Dated and signed by you, then notarized or signed by two qualifying witnesses (Probate Code section 4121). | Dated and signed by you, then notarized or signed by two qualifying witnesses (Probate Code sections 4673 and 4674). |
| When it ends | At your death. A will or trust takes over from there. | Mostly at your death. Unless the directive limits it, your health care agent can still decide about organ donation, an autopsy, and your remains (Probate Code section 4683). |
How does a durable power of attorney work in California?
You sign a document that gives your agent legal authority to act for you in the areas you list. California law says a power of attorney is legally sufficient when it contains the date it was signed, it is signed by you (or by another adult in your name, in your presence and at your direction), and it is either acknowledged before a notary public or signed by at least two qualifying witnesses.
A power of attorney only keeps working after you lose capacity if it is written to be “durable,” and California law lists the wording that does that. You can also write it so it starts only if you become incapacitated. These choices are the reason to have an attorney draft it.
What does an advance health care directive do?
It lets you name a health care agent and write down your wishes about treatment, so your family is not left guessing. California law does not require a particular form. The state’s statutory form is optional, and the form itself says you are free to use a different one. The California Attorney General publishes a copy you can read.
Who can be a witness for a health care directive?
- Witnesses must be adults, and each must see you sign the directive or hear you acknowledge your signature.
- Your health care provider and the provider’s employees cannot be witnesses. Neither can the operator or an employee of a community care facility or a residential care facility for the elderly. Your named agent cannot be a witness either.
- At least one witness must be neither related to you by blood, marriage or adoption nor entitled to any part of your estate.
- Each witness signs a declaration under penalty of perjury. A notary public is exempt from these witness rules.
- If you live in a skilled nursing facility, there is an extra witness rule (Probate Code section 4675). Ask your attorney.
Electronic documents have additional rules, including that notarization is required.
What should I ask my attorney?
- Who should be my agent, and who should be my backup?
- Should the power of attorney start now, or only if I become incapacitated?
- Which powers should I include, and which should I leave out, such as gifting or changing beneficiaries?
- Will my bank, my brokerage and my doctors accept these documents?
- Do I also need a HIPAA authorization?
- Where should I keep the originals, and who gets copies?
- Do I need to update these if I spend time in another state?
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Common questions
Do I need both documents?
They do different jobs. The power of attorney is for money and property, and the health care directive is for medical decisions. Many people have both. An attorney can tell you what makes sense for you.
Can my spouse automatically handle my accounts or medical decisions?
Do not assume so. Banks, brokerages and hospitals usually ask for written authority, and what a spouse can do without a document depends on the situation. A signed power of attorney and health care directive settle the question in advance.
Does a power of attorney continue after death?
No. A power of attorney ends when you die. Your will or trust governs what happens next, and the person in charge of your estate takes over.
Do I have to use the state's health care directive form?
No. California's statutory form is optional, and the form itself says you are free to use a different one. Whatever form you use still has to be dated, signed, and notarized or witnessed correctly.
Where should I keep the originals?
Somewhere safe that your agents can actually reach. Give copies to your agents and your doctors, and tell the people you named where the originals are.
Is this legal advice?
No. This guide is general education. My Legacy Management is an insurance agency, not a law firm. A California-licensed attorney can prepare these documents and advise you.
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Sources
Public sources this page relies on. Rules and amounts can change, so check the source before you act.
- California Probate Code: Section 4121 (power of attorney requirements)
- California Probate Code: Section 4673 (advance health care directive requirements)
- California Probate Code: Section 4674 (witnesses)
- California Probate Code: Section 4675 (skilled nursing facility residents)
- California Attorney General: Advance Health Care Directive form
- California Probate Code: Section 4683 (health care agent after death)
Important disclosures
This page is general education, not legal advice. My Legacy Management is an insurance agency, not a law firm. Laws change and every family is different, so talk to a California-licensed attorney about your documents and a tax professional about taxes.