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What California’s “next-of-kin” law does (and doesn’t) do

On Behalf of | Jun 19, 2024 | Estate Planning |

Some Californians procrastinate in drawing up an Advance Directive for Health Care and naming a health care agent even more than developing their will and other documents that won’t take effect until after their death. No one wants to think of the possibility that they may be catastrophically injured or terminally ill and dependent on machines to stay alive.

These are two crucial parts of estate planning, however, that shouldn’t be overlooked. By having an advance directive, you detail your wishes for things like under what circumstances you want life-sustaining measures discontinued. By naming a health care agent and giving them power of attorney (POA), you give someone you trust the authority to talk with your medical team, advocate for your wishes and make decisions if something comes up that isn’t in your advance directive. 

What does the law say?

Some people ask why California’s “next-of-kin” law isn’t enough. This law requires hospital personnel to name a “health care surrogate” if someone doesn’t have an advance directive and hasn’t named an agent (or they’re unaware that they’ve done so) if a patient is in a coma or otherwise unable to speak for themselves.

Hospitals are expected to make a list of family members, generally in order of how closely they’re related, and possibly close friends. From that list, they choose the person who seems to be closest to them to be 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.”

While it is better than not allowing the medical team to talk with anyone, due to HIPAA rules, there are a number of potential problems with this. The person biologically closest to a patient (or the only family member who is there) may not be the one who knows them the best. Further, if there’s no advance directive stating what the patient wants, family members can have a serious conflict over what to do – even if only one of them is authorized to make the final decision.

By putting an advance directive in place and naming a health care agent who’s to take on this responsibility if necessary, you help ensure that your wishes are followed. It’s important to have estate planning guidance as you write your advance directive and put other documents in place.

 

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