You may have heard that last year, California enacted a “next-of-kin” law that’s like those already in place in numerous states. It requires hospitals and other medical facilities to designate a health care surrogate for a seriously ill or injured patient who can’t speak for themselves. Prior to the law, medical professionals could use their own judgment in determining how to treat a patient and when to end life-prolonging care.
The provisions in the law may help those who don’t have an advance directive for health care in place and haven’t designated a health care agent to advocate for them. However, the law can’t guarantee that “the right person” will be named as a surrogate.
How does the law work?
If a seriously ill or injured patient has no advance directive or health care agent, a hospital must choose a surrogate from a list of those who appear to be closest to the patient. This typically includes spouses, long-term partners, parents, siblings and adult children or grandchildren. If there’s been a close friend at the patient’s side throughout their hospitalization, they may be on the list as well.
According to the law, “The patient’s surrogate shall be an adult who has demonstrated special care and concern for the patient, is familiar with the patient’s personal values and beliefs to the extent known, and is reasonably available and willing to serve.”
Why the law may not work as intended
Of course, hospital authorities and even the medical team treating the patient may have no idea of how close these “next of kin” or friends actually are to a patient and whether they know what they would want. A relative could be at their bedside only because they’re the only one in the area. A neighbor a patient barely knows may have brought them to the hospital and visited regularly.
You can avoid this scenario by creating an advance directive and giving a trusted person (related or not) power of attorney to be your health care agent. Give your regular medical provider and your designated agent copies of these documents. Keep them on your phone or elsewhere with you when you’re traveling in case you end up in the hospital far from home.
You may not think you’re ready to put a full estate plan (even a will) in place yet. However, documents like these can protect you and your rights while you’re still around.