Residents at skilled nursing facilities are well advised to have an advanced health care directive, with an authorized agent (health care decisionmaker) in place to make decisions regarding medical treatment and placement.

However, a skilled nursing facility still cannot require the execution of an advanced health care directive as a condition to providing services (Probate Code Section 5677).

In California, “A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate (Probate Code Section 4657).”

An adult resident at a skilled nursing facility with capacity may appoint an agent, often a close family member or trusted friend, with representative authority, and express enforceable health care decisions using an advanced health care directive or a “power of attorney for health care.”

The representative authority to make health care decisions for the resident may either be immediate or delayed. A resident with capacity will usually make the advanced health care directive immediate, both in anticipation of an unforeseen health care crisis and so that the employees of the skilled nursing facility may discuss the resident’s health care with the agent.

The advanced health care directive will need to be supplemented by a Health Insurance Portability and Accountability Act, or HIPAA, release to allow disclosure of confidential medical information.

If a skilled nursing facility resident does not already have an advanced health care directive or power of attorney for health care, with which the resident agrees, then the resident will typically want to execute an advanced health care directive (present day approach).

California law requires that execution of an advanced health care directive by a skilled nursing facility resident involve the protective oversight of an ombudsman representative as a witness.

The ombudsman will need to meet with the skilled nursing facility resident, alone or with family if requested by the resident, to ensure that the resident has the capacity to sign the document.

That is, does the resident understand, at the time of signing, that the advanced health care directive is an important legal tool to express the resident’s preferences regarding health care and to appoint an agent as a health care decisionmaker.

Also, the ombudsman will want to ensure that the resident, at the time of signing, is acting voluntarily and not under duress, undue influence or menace.

If the ombudsman is still uncertain as to the resident’s capacity to understand the advanced health care directive, the ombudsman may look at the resident’s medical chart for further information before deciding.

Next, the signing of the prepared advanced health care directive involves either one of two approaches, that is, either the notary public and an ombudsman approach, or, second, an ombudsman and an additional witness approach. Typically the first approach is used.

The additional witness to the advanced health care directive (not the ombudsman) cannot be an employee of the skilled nursing facility or the agent nominated in the advanced health care directive.

Moreover, the additional witness (that is, other than the ombudsman), “… shall be an individual who is neither related to the patient by blood, marriage, or adoption, nor entitled to any portion of the patient’s estate upon the patient’s death under a will existing when the advance directive is executed or by operation of law then existing.”

That last restriction naturally favors hiring a travelling notary as most of the people who would be willing to come to the SNF and be a witness are disqualified persons.

As a temporary or emergency (“stop gap”) measure, a resident with capacity may choose to nominate a “surrogate” health care decisionmaker.

All this requires is that the resident personally inform the supervising health care provider or a designee of the skilled nursing facility (section 4711 Probate Code). The surrogate’s authority does not exceed 60 days but, while effective, the surrogate’s authority is the controlling authority, even over the authority of an agent under any existing advanced health care directive.

The foregoing is not legal advice. Consult a qualified estate planning attorney for guidance.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. and 707-263-3235.