Bill Text: CA AB2338 | 2021-2022 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Health care decisions: decisionmakers and surrogates.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2022-09-29 - Chaptered by Secretary of State - Chapter 782, Statutes of 2022. [AB2338 Detail]

Download: California-2021-AB2338-Amended.html

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Amended  IN  Assembly  March 23, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 2338

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Introduced by Assembly Member Gipson

February 16, 2022

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An act to amend Section 4711 of add Section 4712 to the Probate Code, relating to health care decisions.

LEGISLATIVE COUNSEL'S DIGEST

AB 2338, as amended, Gipson. Health care decisions: decisionmakers and surrogates.

Existing law authorizes an adult having capacity to give an individual health care instruction and to designate a health care decisionmaker, including an agent designated in a power of attorney or a surrogate effective for a specified period of time, to make health care decisions on the person’s behalf. Existing law authorizes a patient to disqualify a person, including a family member, from acting as the patient’s surrogate.

This bill would authorize legally recognized health care decisionmakers, in an order of priority, to make health care decisions on a patient’s behalf if the patient lacks the capacity to make a health care decision. If a patient does not have a legally recognized health care decisionmaker, the bill would specify individuals, in an order of priority, who may be chosen as a surrogate if the patient lacks the capacity to make a health care decision.

Existing law authorizes an adult having capacity to give an individual health care instruction. Existing law authorizes a patient to designate an adult as a surrogate to make health care decisions on the patient’s behalf for a specified period of time, and to disqualify a person, including a family member, from acting as the patient’s surrogate. If a patient is incapacitated, existing law specifies individuals, in an order of priority, who may provide surrogate informed consent for medical experiments in a nonemergency room environment.

This bill would specify individuals, in an order of priority, who may be chosen as a surrogate if a patient lacks the capacity to make a health care decision or to designate a surrogate.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 4712 is added to the Probate Code, to read:

4712.

 (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, a surrogate may be chosen from any of the following persons, in the following descending order of priority:

(1) The spouse or domestic partner of the patient.

(2) An adult child of the patient, with priority given to a child with whom the patient lives, if any.

(3) A parent of the patient, with priority given to a parent with whom the patient lives, if any.

(4) An adult sibling of the patient, with priority given to an adult sibling with whom the patient lives, if any.

(5) An adult grandchild of the patient, with priority given to an adult grandchild with whom the patient lives, if any.

(6) An available adult relative with the closest degree of kinship to the patient, with priority given to the relative with whom the patient lives, if any.

SECTION 1.Section 4711 of the Probate Code is amended to read:

4711.

(a)A patient may designate an adult as a surrogate to make health care decisions by personally informing the supervising health care provider. 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)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.

(e)If a patient lacks the capacity to make a health care decision or to designate a surrogate, a surrogate may be chosen from any of the following persons, in the following descending order of priority:

(1)The person’s agent pursuant to an advance health care directive.

(2)The conservator or guardian of the person having the authority to make health care decisions for the person.

(3)The spouse of the person.

(4)The domestic partner, as defined in Section 297 of the Family Code, of the person.

(5)An adult child of the person.

(6)A custodial parent of the person.

(7)An adult sibling of the person.

(8)An adult grandchild of the person.

(9)An available adult relative with the closest degree of kinship to the person.