Chapter 3 - Health Care Surrogates

California Probate Code — §§ 4711-4717

Sections (6)

Amended by Stats. 2022, Ch. 782, Sec. 1. (AB 2338) Effective January 1, 2023.

(a)A patient may designate an adult as a surrogate to make health care decisions by personally informing the supervising health care provider or a designee of the health care facility caring for the patient. The designation of a surrogate shall be promptly recorded in the patient’s health care record.

(b)Unless the patient specifies a shorter period, a surrogate designation under subdivision (a) is effective only during the course of treatment or illness or during the stay in the health care institution when the surrogate

designation is made, or for 60 days, whichever period is shorter.

(c)The expiration of a surrogate designation under subdivision (b) does not affect any role the person designated under subdivision (a) may have in making health care decisions for the patient under any other law or standards of practice.

(d)Notwithstanding Section 4685, if the patient has designated an agent under a power of attorney for health care, the surrogate designated under subdivision (a) has priority over the agent for the period provided in subdivision (b), but the designation of a surrogate does not revoke the designation of an agent unless the patient communicates the intention to revoke in compliance with

subdivision (a) of Section 4695.

§ 4712

Added by Stats. 2022, Ch. 782, Sec. 2. (AB 2338) Effective January 1, 2023.

(a)If a patient lacks the capacity to make a health care decision, the following legally recognized health care decisionmakers may make health care decisions on the patient’s behalf, 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.

(b)Except as set forth in Section 4715, if a patient lacks the capacity to make a health care decision, but does not have a legally recognized health care decisionmaker pursuant to subdivision (a), a health care provider or a designee of the health care facility caring for the patient may choose a surrogate to make health care decisions on the patient’s behalf, as appropriate in the given situation. 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. A surrogate may be chosen from any of the following persons:

(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.

§ 4714

Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.

A surrogate, including a person acting as a surrogate, shall make a health care decision in accordance with the patient’s individual health care instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate’s determination of the patient’s best interest. In determining the patient’s best interest, the surrogate shall consider the patient’s personal values to the extent known to the surrogate.

§ 4715

Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.

A patient having capacity at any time may disqualify another person, including a member of the patient’s family, from acting as the patient’s surrogate by a signed writing or by personally informing the supervising health care provider of the disqualification.

§ 4716

Added by Stats. 2001, Ch. 893, Sec. 49. Effective January 1, 2002.

(a)If a patient lacks the capacity to make a health care decision, the patient’s domestic partner shall have the same authority as a spouse has to make a health care decision for his or her incapacitated spouse. This section may not be construed to expand or restrict the ability of a spouse to make a health care decision for an incapacitated spouse.

(b)For the purposes of this section, the following definitions shall apply:

(1)“Capacity” has the same meaning as defined in Section 4609.

(2)“Health care” has the same meaning as defined in Section 4615.

(3)“Health care decision” has the same meaning as defined in Section 4617.

(4)“Domestic partner” has the same meaning as that term is used in Section 297 of the Family Code.

§ 4717

Added by renumbering Section 4716 (as added by Stats. 2001, Ch. 329) by Stats. 2004, Ch. 882, Sec. 2. Effective January 1, 2005.

(a)Notwithstanding any other provision of law, within 24 hours of the arrival in the emergency department of a general acute care hospital of a patient who is unconscious or otherwise incapable of communication, the hospital shall make reasonable efforts to contact the patient’s agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient. A hospital shall be deemed to have made reasonable efforts, and to have discharged its duty under this section, if it does all of the following:

(1)Examines the personal effects, if any, accompanying the patient and any medical records regarding the patient in its possession, and reviews any verbal or written report made by emergency medical technicians or the police, to identify the name of any agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient.

(2)Contacts or attempts to contact any agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient, as identified in paragraph (1).

(3)Contacts the Secretary of State directly or indirectly, including by voice mail or facsimile, to inquire whether the patient has registered an advance health care directive with the Advance Health Care Directive Registry, if the hospital finds evidence of the patient’s Advance Health Care Directive Registry identification card either from the patient or from the patient’s family or authorized agent.

(b)The hospital shall document in the patient’s medical record all efforts made to contact any agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient.

(c)Application of this section shall be suspended during any period in which the hospital implements its disaster and mass casualty program, or its fire and internal disaster program.