If you are helping a loved one complete a medical power of attorney or advance health care directive in California, the witness rules matter. However, there is an important exception. If the person signing is a patient in a skilled nursing facility, the directive is not effective unless a patient advocate or ombudsman signs as a witness. This can be either as one of the two witnesses. Alternatively, it can be in addition to notarization.
What counts as a medical power of attorney in California?
In California, the medical power of attorney is part of the Advance Health Care Directive form. That form lets a person name an agent to make health care decisions. It also gives room for health care instructions.
When is an ombudsman required?
The ombudsman witness rule applies when the signer is a patient in a skilled nursing facility at the time the directive is executed. In that setting, Probate Code section 4675 says the advance directive is not effective unless a patient advocate or ombudsman designated by the Department of Aging signs as a witness. Therefore, they need extra protection to confirm they are signing willingly.
What is an ombudsman’s role?
California’s Long-Term Care Ombudsman program helps residents in long-term care facilities with concerns involving health, safety, welfare, rights, abuse, neglect, and quality of care. For families preparing a Medical Power of Attorney, the ombudsman’s services may become crucial to ensure compliance if a loved one is in a skilled nursing setting. In addition, the Department of Aging says ombudsman services are free, confidential, and available to residents of long-term care facilities.
What if the patient is not in a skilled nursing facility?
If the patient is not in a skilled nursing facility, the special ombudsman witness requirement in Probate Code section 4675 does not apply. However, this only applies so long as the witness rules in Probate Code sections 4673 and 4674 are satisfied. Those witness rules prohibit certain people from serving, including the patient’s health care provider. They also exclude employees of the provider. Moreover, the rules exclude the operator or employee of a community care facility.
Why this matters in practical life
This comes up often when families are trying to complete forms for a parent, spouse, or relative in a facility. If the person is in a skilled nursing facility, the wrong witness setup can make the document ineffective. For any Medical Power of Attorney document, careful adherence to these requirements is vital. On the other hand, if the person is at home, in a hospital, or in another setting that is not a skilled nursing facility, the family usually follows the standard California rules for witnesses or notarization instead.
In those situations, a correctly executed directive can save time. Also, it can prevent delays when the health care provider needs proof of authority.
Disclaimer
Khan Paralegal and Notary is not an attorney and does not provide legal advice. We can assist with notarization and document preparation support, but we cannot tell you which legal option is best for your situation.
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