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Why California’s next-of-kin law may not protect your interests

On Behalf of | Mar 15, 2024 | Estate Planning |

No one wants to think about the possibility of being critically injured or seriously ill and being in a hospital in a coma or otherwise unable to communicate with their medical providers. If that were to happen, however, most people would want a trusted family member or friend to make decisions on their behalf.

That’s why having an advance health care directive and naming a health care agent with power of attorney (POA) to advocate for those wishes are crucial parts of estate planning.

What happens if you don’t have these things?

Only last year, California enacted a “next-of-kin” law aimed at ensuring that these responsibilities are given to someone close to the patient if they haven’t put an advance directive with a designated agent in place. The law gives hospitals the authority to designate a surrogate to speak and make decisions for patients who can’t speak for themselves.

Under the law, if a patient hasn’t designated a health care agent (or no one comes forward and no documentation can be located) hospitals are required to make a list that includes relatives assumed to be closest to them and possibly others. The surrogate should be someone 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.”

Of course, hospital staff can’t always be expected to know whom a patient would want assuming this role. Often, those closest to us biologically aren’t the ones who know us best.

Be sure that appropriate documents are accessible

As noted, if you have an advance directive and designated health care agent (at least the latter), you shouldn’t have to worry about being placed in this position. However, as noted, a hospital needs to be aware that you have put the appropriate documents in place. It is, therefore, wise to have copies on file with your primary care physician and possibly your closest hospital or anywhere else you receive medical care. If you’re traveling, it’s a good idea to have copies on your phone or at least make sure that your health care agent is your emergency contact. They need copies as well.

All adults can benefit from taking these steps to protect their wishes if a worst-case scenario occurs. With experienced legal guidance, you can help to ensure that your documentation is thorough and legally valid.