This year, California enacted a “next-of-kin” law that allows medical facilities to designate a surrogate to speak and make decisions for a patient who is in a condition where they’re unable to speak for themselves. The law applies only when a patient has no advance health care directive (or at least none that can be located) and hasn’t designed anyone to have power of attorney (POA) to direct or oversee their care. In California, that person is called a health care agent.
This might sound like something we should have already had – and most states do have something similar. The idea behind it is that hospitals and doctors should not have the authority to overrule family members and other loved ones who haven’t been given any legally designated right to make medical decisions for the patient. In some cases, measures that were keeping a patient alive were ended by the hospital if it determined a patient had no chance of recovery.
Who can be a surrogate?
The law states that a surrogate must 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.” Of course, someone in authority at the hospital or other care facility has to make that decision.
The choice does have to be made from a list that includes a patient’s spouse or partner, adult children or grandchildren, parents and other relatives as well as friends. Typically, family members closest to a patient would be considered first (if any can be located) before friends or anyone outside the family.
Why having the right documents in place is a better option
This is likely better than having medical professionals who may not know anything about you other than your current condition deciding your fate. However, rather than trusting those same professionals or even hospital administrators to decide who among your family should do so may not be much better. It can cause added stress and conflict among family.
You have the ability to prevent this by putting an advance directive for health care with your wishes in place and designating a health care agent to advocate for your wishes. It’s also wise to ensure that your doctor, local hospital and agent all have a copy of these forms. You may even want to keep them on your phone in case you’re away from home when you become injured or ill. With experienced legal guidance, this is not a complicated process.