The next-of-kin law doesn’t replace a chosen health care agent
For some people, creating an advance health care directive is even more emotionally challenging than putting their will in place. No one likes to think about what kind of life-prolonging measures they want ended or continued if they’re in a coma with no expectation of regaining consciousness or of being themselves again.
An advance health care directive, in large part, allows people to codify their wishes on these things and more. Along with that directive, it’s important to name a health care agent with power of attorney (POA) to interact with a person’s medical team and advocate for their wishes if they’re unable to make decisions.
Californians who have heard that the state has a “next-of-kin” law that provides directions for hospitals to name a health care agent for a seriously injured or ill patient may think they don’t need to name an agent – especially if they would name a close family member. However, that law doesn’t guarantee the appropriate choice will be made. Let’s take a brief look at how it works.
What does the law say?
The law states that if a patient “lacks the capacity to make a health care decision,” medical providers are to choose a “decisionmaker.’’ If the patient has a previously designated health care agent, guardian or conservator or can name a decisionmaker at the time of their hospitalization, those are the first choices.
If none of these is an option, medical providers must choose 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.” They are to choose from the following:
- Spouse or domestic partner
- Adult child
- Parent
- Adult sibling
- Adult grandchild
- Any “adult relative or close personal friend”
While the list is in order of familial proximity, providers can choose anyone from the list.
Although the law is intended to help ensure that a person who knows and cares about a patient is making critical decisions about their care, that may not happen. No one can know what loved ones will be around or reachable when tragedy strikes.
That’s why taking these steps to put an advance health care directive in place and choose an agent can make all the difference. It’s also crucial to make sure the right people know about these documents and choices. With sound estate planning guidance, you can take care of these critical steps and have added peace of mind.