This year, California enacted what’s known as a “next-of-kin” law. It allows hospitals and other medical facilities to designate a person (known as a surrogate) with whom they can discuss a patient’s condition if that patient can’t speak for themselves. That designated person can also make decisions on behalf of that incapacitated person.
This is only meant to be used in cases where a patient hasn’t given power of attorney (POA) to someone they’ve designated as their health care agent. That is still the best and most reliable way to ensure that only the person you want to represent you if something devastating should happen will be allowed to do so. To further ensure that your wishes are known and abided by, you should also put an advance directive for health care in place.
The next-of-kin law can only be used if a patient hasn’t already planned for such a situation and has no such documents in place (or at least none that can be located).
How is a surrogate chosen?
The law requires medical facilities to make a list of people they assume are closest to the patient. Spouses and partners are typically at the top, with adult children, grandchildren and parents next, followed by other relatives and close friends. The law states that the designated 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.”
You can see the problem with hospital staff making that determination, perhaps based on nothing but who has visited a patient in the hospital. That’s more likely to happen if they have no living relatives – or at least none who are part of their lives.
While it’s better to have this law in place than not, it’s still best to have an advance directive and health care agent in place (and to make sure your primary care physician and your agent have copies of the appropriate documents). This will help ensure that the right person is making life-and-death decisions for you in a time of crisis.
