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California’s next-of-kin law doesn’t minimize the need for an advance directive

On Behalf of | Apr 18, 2024 | Powers of Attorney

If you were in a serious car crash or became critically ill and were in a coma or otherwise unable to communicate with your medical team, who would they turn to for decisions like whether to leave you on life support or remove you, and when? If you’re married, you assume that person would be your spouse. If you’re divorced or widowed, you might assume they’d contact one of your adult children.

But, even if you have these close family connections (and especially if you don’t), you can’t assume anything. Your spouse could have been in that crash with you. Your child might be unreachable.

In that case, if you have no advance health care directive in place and designated health care agent via a power of attorney (POA) designation to talk with your medical team and make these critical decisions, a hospital will need to follow California’s “next-of-kin law.” Under that law, medical facilities can name someone as a surrogate to make these decisions.

How do hospitals choose a surrogate?

If there’s no indication of an advance directive or designated health care agent when critical and potentially end-of-life decisions need to be made, hospitals need to evaluate those they believe are closest to the patients in the following order:

  • Spouse or partner
  • Adult children
  • Adult grandchildren
  • Parents
  • Other relatives
  • Close friends

Under the law, the chosen surrogate needs to be a person 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.” That person may be at your bedside already – or they may not. Further, if you’ve never discussed your wishes for this kind of situation, even your closest family may be unsure of what you’d want. That’s the purpose of crafting an advance health care directive and naming – and then informing them of your wishes – a POA.

Make sure the right parties have the documents

It’s also crucial that your medical providers have copies of the appropriate documents. Your health care agent should also have copies so they can provide them to the hospital. It’s wise to list your designated agent and your alternate as your emergency contacts in your phone and/or wallet.

Certainly, it’s not pleasant to think about a time when these things may be needed. However, having them in place can give you peace of mind and potentially prevent serious family conflicts at a difficult time. With experienced legal guidance, you can better ensure that your documents are valid and accurately express your wishes.

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