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  April 28, 2022

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 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. The bill would also authorize a person 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 to take precedence in making health care decisions on the patient’s behalf.

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.

(7) A close, personal friend.

(c) Notwithstanding subdivision (b), including the prioritization listed in subdivision (b), a person 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 may take precedence in making health care decisions on the patient’s behalf.