Drafting a Living Will

in California

Despite being called a “will”, a living will does not direct the distribution of property upon your death. The function of a living will is to legally express your desires and wishes with respect to medical care in the event you become unable to communicate these intentions because of terminal illness, age, or incapacity. Living wills are relied upon by other individuals (or Agents) to make medical decisions on behalf of the patient. The various laws related to living wills in California are contained in the Natural Death Act (the Act). Some of the features of a valid living will include the following:

Legal conditions. In order to execute a living will, you must be of sound mind and over 18 years of age. The will must be signed by the will-maker and witnessed by two witnesses. The will is effective when the declarant is in “terminal condition” as determined by two doctors.

Agent requirements. An agent may be either a spouse, relative or close friend of the will-maker. The power of attorney designation allows you to appoint an Agent who is required to ensure that the instructions in your living will form are followed. The agent is also granted the power to make health care decisions for the patient when he is no longer able to do so. Under California law, certain individuals may not serve as the Agent for a living will. This includes: (i) a treating medical provider, (ii) an employee of the health care provider, unless related to the patient, or (iii) an employee of the community care facility, unless related to the patient.

Documentation. The patient’s preferences for medical treatment are contained in an Instruction for Health Care form. The document that designates an agent to fulfill your desires is called an Advanced Health Care Directive. An Advanced Health Care Directive is used primarily to make decisions with respect to the provision of life support where death is inevitable. Other life-prolonging treatments (in addition to respirators and feeding tubes) that may be addressed in the document include CPR, blood transfusions, and surgery. Patients can also indicate whether they would like to have palliative care and the manner in which they would like to receive such care. 

Revocation. A living will may be revoked at any time either by communication to the treating physician or by signing a revocation regardless of the mental or physical state of the declarant. 

Making Changes to

Your Contract:

Amendments and Rescission

Once a contract is executed, one or both parties may decide to modify its terms for various reasons. Sometimes the parties may even annul the contract altogether. Modification may be in the form of an addition, correction or omission and can address most elements of the agreement. Rescission, on the other hand, has the effect of terminating (rescinding) the agreement either by mutual consent or by operation of the law. 

Amendment. The parties can modify their existing agreements by drafting an amendment. An amendment does not act as a substitute for the entire contract. Rather, an amendment simply modifies the clause that the parties wish to change. Many contracts contain provisions that require all amendments to be made in writing and signed by the parties. While some courts have enforced oral amendments to contracts, it is preferable to draft a written amendment for clarity and reliability. Parties that want to change a substantial number of provisions often elect to restate the entire agreement. When the amendment pertains to a discrete provision, there are several methods that can be used to amend the contract. The parties can visually make additions and omissions through crossing out and adding text. Alternatively, the parties can include a statement providing that the entire clause has been replaced and insert the new clause into the contract. Some contracts simply describe the amended provision in the text.   

Rescission. The parties to a contract may annul the agreement, which has the effect of returning the parties to their positions prior to the execution of the contract. However, contracts cannot simply be cancelled because one party no longer desires to be bound to the agreement. Rather, the court must rule that there is valid grounds upon which to revoke the agreement. Rescission is a remedy that is typically used when a defect exists in the formation of the contract. A court may also order rescission if it obtains the consent of both parties to annul the contract. Under California Civil Code Section 1689, a contact can be rescinded by the parties by consent or under the following conditions: (i) unilateral mistake pertaining to a material provision; (ii) fraud or undue influence; (iii) failure to provide consideration or refusal of a party to perform his promises pursuant to the contract; or (iv) the contract itself is unlawful.