Revoking Advance Health Care Directives

Division 4.7, Part 2, Chapter 1, Article 3 of the Probate Code deals with the revocation of advance directives in California.

Section 4695 provides that a patient having capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider.

Section 4696 allows a patient having capacity to revoke all or part of an advance health care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.

Section 4696 states that a health care provider, agent, conservator, or surrogate who is informed of a revocation of an advance health care directive shall promptly communicate the fact of the revocation to the supervising health care provider and to any health care institution where the patient is receiving care.

Section 4697 provides that, if after executing a power of attorney for health care the principal’s marriage to the agent is dissolved or annulled, the principal’s designation of the former spouse as an agent to make health care decisions for the principal is revoked.

Section 4698 states that an advance health care directive that conflicts with an earlier advance directive revokes the earlier advance directive to the extent of the conflict.

Chapter 2 deals with advance health care directive forms. Section 4700 specifies that the form provided in Section 4701 may be used to create an advance health care directive. The other sections of this division govern the effect of the form or any other writing used to create an advance health care directive. An individual may complete or modify all or any part of the form in Section 4701.

Section 4701 provides the statutory advance health care directive form.

Chapter 3 deals with health care surrogates. Section 4711 authorizes a patient to designate an adult as a surrogate to make health care decisions by personally informing the supervising health care provider or a designee of the health care facility caring for the patient. The designation of a surrogate must be promptly recorded in the patient’s health care record.

Section 4712 provides that, if a patient lacks the capacity to make a health care decision, the three specified legally recognized health care decisionmakers may make health care decisions on the patient’s behalf, in the specified descending order of priority.

If a patient lacks the capacity to make a health care decision, but does not have a legally recognized health care decisionmaker, a health care provider or a designee of the health care facility caring for the patient may choose a surrogate to make health care decisions on the patient’s behalf, as appropriate in the given situation. The patient’s surrogate must be an adult 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. A surrogate may be chosen from any of the six specified persons.

Section 4714 provides that a surrogate, including a person acting as a surrogate, must make a health care decision in accordance with the patient’s individual health care instructions, if any, and other wishes to the extent known to the surrogate.

Section 4715 states that a patient having capacity at any time may disqualify another person, including a member of the patient’s family, from acting as the patient’s surrogate by a signed writing or by personally informing the supervising health care provider of the disqualification.

Section 4716 states that, if a patient lacks the capacity to make a health care decision, the patient’s domestic partner has the same authority as a spouse has to make a health care decision for his or her incapacitated spouse. This section may not be construed to expand or restrict the ability of a spouse to make a health care decision for an incapacitated spouse. The following terms are defined: “capacity,” “health care,” “health care decision,” and “domestic partner.”

Sectn 4717 explains that, within 24 hours of the arrival in the emergency department of a general acute care hospital of a patient who is unconscious or otherwise incapable of communication, the hospital is required to make reasonable efforts to contact the patient’s agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient. A hospital shall be deemed to have made reasonable efforts, and to have discharged its duty under this section, if it does all of the three specified actions.