Assembly Bill No. 2288
CHAPTER 21

An act to amend Sections 4615, 4617, and 4701 of the Probate Code, relating to advance health care directives.

[ Approved by Governor  June 20, 2022. Filed with Secretary of State  June 20, 2022. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2288, Choi. Advance health care directives: mental health treatment.
Existing law, the Health Care Decisions Law, authorizes an adult having capacity to give an individual health care instruction. Existing law authorizes the individual instruction to be limited to take effect only if a specified condition arises. Existing law authorizes a written advance health care directive to include the individual’s nomination of a conservator of the person or estate or both, or a guardian of the person or estate or both, for consideration if protective proceedings for the individual’s person or estate are thereafter commenced. Existing law also authorizes an adult having capacity to execute a power of attorney for health care to authorize an agent to make health care decisions for the principal, and authorizes the power of attorney to include individual health care instructions. Existing law authorizes the principal in a power of attorney for health care to grant authority to make decisions relating to the personal care of the principal, including, but not limited to, determining where the principal will live, providing meals, or hiring household employees. Existing law defines “health care decision” and “health care” for these purposes to mean any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient’s physical or mental condition.
This bill would clarify that health care decisions under those provisions include mental health conditions. The bill would revise the statutory advance health care directive form to clarify that a person may include instructions relating to mental health conditions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 4615 of the Probate Code is amended to read:

4615.
 “Health care” means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient’s physical or mental health condition.

SEC. 2.

 Section 4617 of the Probate Code is amended to read:

4617.
 “Health care decision” means a decision made by a patient or the patient’s agent, conservator, or surrogate, regarding the patient’s health care, including the following:
(a) Selection and discharge of health care providers and institutions.
(b) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions.
(c) Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.

SEC. 3.

 Section 4701 of the Probate Code is amended to read:

4701.
 The statutory advance health care directive form is as follows:

ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation

You have the right to give instructions about your own physical and mental health care. You also have the right to name someone else to make those health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
(b) Select or discharge health care providers and institutions.
(c) For all physical and mental health care, approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
(d) Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(e) Donate your organs, tissues, and parts, authorize an autopsy, and direct disposition of remains.
Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes. If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your bodily organs, tissues, and parts following your death.
Part 4 of this form lets you designate a physician to have primary responsibility for your health care.
After completing this form, sign and date the form at the end. The form shall be signed by two qualified witnesses or acknowledged before a notary public. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that they understand your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
* * * * * * * * * * * * * * * *
PART 1
POWER OF ATTORNEY FOR HEALTH CARE
(1.1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health care decisions for me:
(name of individual you choose as agent)

_____ (address) _____ (city)  _____ (state) _____ (ZIP Code)

(home phone)
(work phone)

OPTIONAL: If I revoke my agent’s authority or if my agent is not willing, able, or reasonably available to make a health care decision for me, I designate as my first alternate agent:

(name of individual you choose as first alternate agent)

_____ (address) _____ (city)  _____ (state) _____ (ZIP Code)

(home phone)
(work phone)

OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health care decision for me, I designate as my second alternate agent:

(name of individual you choose as second alternate agent)

_____ (address) _____ (city)  _____ (state) _____ (ZIP Code)

(home phone)
(work phone)

(1.2) AGENT’S AUTHORITY: My agent is authorized to make all physical and mental health care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care to keep me alive, except as I state here:



(Add additional sheets if needed.)

(1.3) WHEN AGENT’S AUTHORITY BECOMES EFFECTIVE: My agent’s authority becomes effective when my primary physician determines that I am unable to make my own health care decisions unless I mark the following box. If I mark this box ◻, my agent’s authority to make health care decisions for me takes effect immediately.
(1.4) AGENT’S OBLIGATION: My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.
(1.5) AGENT’S POSTDEATH AUTHORITY: My agent is authorized to donate my organs, tissues, and parts, authorize an autopsy, and direct disposition of my remains, except as I state here or in Part 3 of this form:



(Add additional sheets if needed.)
(1.6) NOMINATION OF CONSERVATOR: If a conservator of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as conservator, I nominate the alternate agents whom I have named, in the order designated.
PART 2
INSTRUCTIONS FOR HEALTH CARE
If you fill out this part of the form, you may strike any wording you do not want.
(2.1) END–OF–LIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below:
◻(a) Choice Not To Prolong Life
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR
◻(b) Choice To Prolong Life
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.
(2.2) RELIEF FROM PAIN: Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death:


(Add additional sheets if needed.)
WISHES FOR PHYSICAL AND MENTAL HEALTH CARE:  (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:


(Add additional sheets if needed.)
PART 3
DONATION OF ORGANS, TISSUES, AND PARTS AT DEATH
(OPTIONAL)
(3.1)  ◻ Upon my death, I give my organs, tissues, and parts (mark box to indicate yes). By checking the box above, and notwithstanding my choice in Part 2 of this form, I authorize my agent to consent to any temporary medical procedure necessary solely to evaluate and/or maintain my organs, tissues, and/or parts for purposes of donation.
My donation is for the following purposes (strike any of the following you do not want):

(a) Transplant

(b) Therapy

(c) Research

(d) Education
If you want to restrict your donation of an organ, tissue, or part in some way, please state your restriction on the following lines:

If I leave this part blank, it is not a refusal to make a donation. My state-authorized donor registration should be followed, or, if none, my agent may make a donation upon my death. If no agent is named above, I acknowledge that California law permits an authorized individual to make such a decision on my behalf. (To state any limitation, preference, or instruction regarding donation, please use the lines above or in Section 1.5 of this form).
PART 4
PRIMARY PHYSICIAN
(OPTIONAL)
(4.1) I designate the following physician as my primary physician:
(name of physician)

_____ (address) _____ (city)  _____ (state) _____ (ZIP Code)

(phone)

OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician:
(name of physician)

_____ (address) _____ (city)  _____ (state) _____ (ZIP Code)

(phone)

* * * * * * * * * * * * * * * *

PART 5
(5.1) EFFECT OF COPY: A copy of this form has the same effect as the original.
(5.2) SIGNATURE: Sign and date the form here:
(date)
(sign your name)
(address)
(print your name)
(city)(state)

(5.3) STATEMENT OF WITNESSES: I declare under penalty of perjury under the laws of California (1) that the individual who signed or acknowledged this advance health care directive is personally known to me, or that the individual’s identity was proven to me by convincing evidence, (2) that the individual signed or acknowledged this advance directive in my presence, (3) that the individual appears to be of sound mind and under no duress, fraud, or undue influence, (4) that I am not a person appointed as agent by this advance directive, and (5) that I am not the individual’s health care provider, an employee of the individual’s health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, nor an employee of an operator of a residential care facility for the elderly.
First witness
Second witness


(print name)
(print name)


(address)
(address)


(city)(state)
(city)(state)


(signature of witness)
(signature of witness)


(date)
(date)
(5.4) ADDITIONAL STATEMENT OF WITNESSES: At least one of the above witnesses must also sign the following declaration:

I further declare under penalty of perjury under the laws of California that I am not related to the individual executing this advance health care directive by blood, marriage, or adoption, and, to the best of my knowledge, I am not entitled to any part of the individual’s estate upon their death under a will now existing or by operation of law.


(signature of witness)
(signature of witness)
PART 6
SPECIAL WITNESS REQUIREMENT
(6.1) The following statement is required only if you are a patient in a skilled nursing facility—a health care facility that provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. The patient advocate or ombudsman must sign the following statement:
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN
I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by Section 4675 of the Probate Code.


(date)
(sign your name)


(address)
(print your name)

(city)(state)