At the beginning of this year, California enacted a “next-of-kin” law similar to those on the books in the vast majority of states. The law allows medical facilities to designate someone to speak and make decisions for a patient who is incapacitated and unable to speak for themselves.
This can be done, however, only after it’s been determined that the patient has no advance directive for health care or given power of attorney (POA) to a health care agent to oversee their care in such situations.
The law is intended to prevent hospitals and medical professionals from overriding the wishes of family members – sometimes even ending life-prolonging care. This was possible under the previous law when the patient didn’t have an advance directive or designated agent.
How are surrogates chosen under the law?
Under the law, hospitals need to choose the surrogate from a list of those assumed to be closest to the patient, including spouses or partners, adult children or grandchildren, parents and other relatives or close friends. For example, if a patient has no living relatives (or any who can be located), but a friend has been with them throughout their hospitalization, that person may end up becoming their surrogate.
The law states, “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 this often isn’t a good system
This can be preferable to medical facility personnel making life-or-death decisions for a patient they may not know. However, some patient advocates note that the law still gives them the authority to choose who will speak for a patient.
What if a neighbor you barely know finds you unconscious after a stroke or heart attack, accompanies you to the hospital and stays by your side because they have nothing better to do? Your medical team could assume or take their word for it that they’re your closest friend. Do you want your life in their hands?
You can easily avoid cases like this if you don’t have close living family. Even if you have close family, you can avoid putting them through a battle over what they think you’d want, with only one being allowed to make the decisions. By putting an advance directive in place and giving a designated health care agent POA, you can have a say in your health care even when you can’t speak for yourself.