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New California Probate Code Section 4712


Breaking news!   Effective January 1, 2023, California law has been updated to give health care providers the ability to designate individuals to make medical decisions for incapacitated patients.

While well-intended, there is some concern in the legal community that this new law, found in Probate Code section 4712, may give undue power to health care providers to control a patient’s medical decisions.  At the very least, it provides an avenue for placing a patient’s medical decisions in the hands of one or more individuals who were not specifically selected by a patient or vetted by a court.

The new law authorizes healthcare providers or healthcare facility designees to choose a decisionmaker for patients who lack the capacity to make decisions themselves and who have not previously designated a decisionmaker.  A healthcare provider or healthcare facility designee may designate a surrogate decisionmaker who meets the following qualifications:

  1. Is an adult;
  2. Has demonstrated special concern and care for the patient;
  3. Is familiar with patient’s personal values and beliefs;
  4. Is reasonably available and willing to serve as the designee; and
  5. Is the patient’s spouse or domestic partner, adult child, parent, adult sibling, adult grandchild, or other relative or close friend of the patient.

The necessity for the assignment of a surrogate depends on several factors, such as the patient’s medical state and if they have previously declared whom they would like their medical agent to be. While planning ahead is recommended for all, those who believe their mental or physical health will deteriorate in the near future should not delay appointing an agent promptly in order to preserve their choice of advocate.

This new law is a good reminder that relying on chance is rarely the best strategy.   If you are unsure whether you have designated medical agents or whether your current designations are still both legally valid and strategically prudent, give our team a call to schedule a review with one of our attorneys.

The post New California Probate Code Section 4712 appeared first on Huber Fox, P.C..

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