Health Care Decision Makers and Surrogates

Emergency sign on building

If you don’t Designate your Health Care Agent, it May be Decided for you.

If you are unable to make your own healthcare decisions due to being incapacitated, healthcare providers will turn to surrogate decision-makers to discuss end-of-life issues. A proper surrogate must be identified as the decision maker for healthcare providers to turn to. The most common surrogates and decision-makers are a spouse, parents, or adult children.  Unlike movies and social media, end of life may not be as easy as passing away quickly with little to no suffering or pain. In reality, oftentimes today’s technology can prolong death for extended periods of time. During this delay, family members or a designated surrogate decision-maker are often the ones who have to make decisions about medical treatments for the incapacitated. 

Before becoming ill, it is important to discuss your wishes with a healthcare provider or someone you designate to make decisions for you. A surrogate directs activities on your behalf in the case of your illness. This is often a difficult task, as they would be making difficult decisions toward life-sustaining treatment. Surrogates must keep your wishes in mind during this stage, and make decisions based on your best interest. By law, you are allowed to designate surrogates, as well as disqualify them. If you do not designate a surrogate or decision-maker, the law may decide it for you. 

Assembly Bill No. 2338 states that “If a patient does not have a legally recognized health care decisionmaker, the bill would specify individuals who may be chosen by a health care provider or a designee of the health care facility caring for the patient as a surrogate if the patient lacks the capacity to make a health care decision”. 

This bill requires an adult surrogate who has an interest in the patient, is familiar with their beliefs and values, and is available when needed to take action. 

Section 4711 of the Probate Code is amended to state that a patient may inform a supervising healthcare provider or care facility of their designated adult surrogate who will make healthcare decisions. The patient’s healthcare record will then be updated with the surrogate designation. Unless otherwise specified by the patient, the surrogate designation would be in effect during illness or stay within a healthcare institution or 60 days (whichever period is shorter). 

Section 4712 states that if a patient is incapacitated and cannot make healthcare decisions, then legally recognized decision-makers could make healthcare decisions on behalf of the patient, in the following descending order of priority:

(1) The patient’s surrogate selected pursuant to Section 4711.

(2) The patient’s agent pursuant to an advance health care directive or a power of attorney for health care.

(3) The conservator or guardian of the patient having the authority to make health care decisions for the patient.

The bill further states that if an incapacitated patient does not have a legally recognized healthcare surrogate or decisionmaker, the healthcare provider or care facility may choose who that would be on behalf of the patient. The following is a list of whom the healthcare provider or care facility may choose from: 

(1) The spouse or domestic partner of the patient.

(2) An adult child of the patient.

(3) A parent of the patient.

(4) An adult sibling of the patient.

(5) An adult grandchild of the patient.

(6) An adult relative or close personal friend.

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Source: AB-2338 Health care decisions: decisionmakers and surrogates.