March 24, 2020

California Medical Directives at HomeCan we get our end-of-life wishes down without breaking health orders?

Medical advance directives give instructions about how to handle our medical care when we’re no longer able to decide for ourselves. They frequently include instructions about whether to prolong our lives artificially and whether to reduce end-of-life pain with procedures that may hasten our ends. Similarly, health care powers of attorney appoint people we trust to make health care decisions for us when we can’t.

These critical legal tools matter even more now.

I should start by admitting straight-up that this area is new to me. It’s not the kind of law I practice. What I’ve seen so far, digging into the law for the first time, is bad news. I’d love to be wrong.

California passed a version of the Uniform Health Care Decisions Act, a model law about advance medical directives and health care powers of attorney. You can read California’s version yourself online.

The good news is that law actually provides a form written right into the law that folks can use without hiring a lawyer or paying a commercial form vendor. I’ve created a formatted copy of that statutory form that’s easier to print, fill out, sign, witness, and file. I’m also reaching out to friends and fellow lawyers to make sure that no matter which hospital someone ends up at, the hospital staff will recognize and honor the statutory form, even though it’s not “their lawyers’ paper”.

The bad news is that the extra witnessing, notarization, and electronic signing requirements, at least as I understand them from a review of the statutes, won’t work for many right now. Breaking it down:

  1. In order to complete an advance directive or power of attorney, you need either two witnesses who meet special requirements to sign it with you or you have to get it acknowledged before a notary public. Probate Code § 4673(a)(2)

  2. You probably can’t use a notary without leaving your home, coming within six feet, and breathing all over the paperwork. We could potentially call notaries over the computer, but the secretary of state has made clear online and remote notarization doesn’t fly in California. The traditional way is face-to-face, but many random people going to visit specific individuals—the notaries—for face-to-face meetings doesn’t seem wise right now.

  3. Inability to use a notary likely rules out doing the documents electronically. You can do paper documents with either witnesses or a notary, but if you go electronic, the law says you must notarize. Probate Code § 4673(b)

  4. Many people currently staying at home won’t have two eligible witnesses handy:

    • Witnesses must be adults. Probate Code § 4674(a)

    • Witnesses must be present to witness signing or acknowledgment. Probate Code § 4674(b)

    • Witnesses can’t be the person’s health care provider, work at a care facility, or be the person appointed to make health care decisions. Probate Code §§ 4674(c)

    • At least one of the two witnesses has to tick all these boxes, which likely exclude using two family members:

      • not related by blood, marriage, or adoption

      • not entitled to inherit from them, under a will or the law’s defaults

      Probate Code § 4674(e)

  5. If the person is a patient in a “skilled nursing facility”, they need a patient advocate or ombudsman to sign, too. Probate Code § 4675

I’ve read heart-wrenching stories from friends that I trust about nurses doing what they can, trying to get directives and powers done in-hospital. I’ve read of papers pressed up to quarantine room windows, signed at the patient’s direction, which I suspect is legal, but also witnessed by attending hospital staff, which I suspect is not.

It seems to me the best time to get these things done is well ahead of the hospital, and that potential patients, healthcare workers, and healthcare systems need better, COVID-19-aware guidance about how to prepare, sign, and handle these critical forms.

I’m assembling a working group to make forms and playbooks available for Californians and residents of other states who want to get directives and powers of attorney in place now, ahead of COVID-19 peak. If you’re interested, please e-mail me at kyle@kemitchell.com.

more posts about: COVID-19 Legal Profession Forms

Your thoughts and feedback are always welcome by e-mail.

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