BILL NUMBER: AB 1278 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Wayne
FEBRUARY 23, 2001
An act to amend Section 7100 of the Health and Safety Code, to
amend Sections 4123, 4609, 4659, 4711, 4766, and 4769 of, and to
amend the heading of Chapter 3 (commencing with Section 4765) of Part
3 of Division 4.7 of, the Probate Code, relating to health care
decisions.
LEGISLATIVE COUNSEL'S DIGEST
AB 1278, as introduced, Wayne. Health care decisions.
Existing law permits a person to authorize another to make certain
decisions on their behalf pursuant to a power of attorney or
pursuant to an advance health care directive, as specified.
This bill would exclude health care decisions from the authority
of an attorney-in-fact under a general power of attorney. The bill
would revise certain provisions with respect to the following: the
duties and liabilities of an agent under a power of attorney for
health care with respect to funeral decisions; the definition of
"capacity" with respect to a person's ability to understand, make,
and communicate decisions, including health care decisions; the
person who may be designated to make health care decisions as an
agent or surrogate; the authority of a surrogate, rather than an
agent, to make health care decisions, if both have been designated;
and the use of petitions in court to honor individual health care
instructions or to enforce health care decisions by an agent or
surrogate.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7100 of the Health and Safety Code is amended
to read:
7100. (a) The right to control the disposition of the remains of
a deceased person, the location and conditions of interment, and
arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section
7100.1, vests in, and the duty of disposition and the liability for
the reasonable cost of disposition of the remains devolves upon, the
following in the order named:
(1) An agent under a power of attorney for health care governed by
Division 4.7 (commencing with Section 4600) of the Probate Code.
Unless the agent specifically agrees, the agent does not have a
duty or liability under this section. If the agent assumes the duty
under this section, the agent is liable only for the reasonable
costs incurred as a result of the agent's decisions, to the extent
that the decedent's estate or other appropriate fund is insufficient.
(2) The competent surviving spouse.
(3) The sole surviving competent adult child of the decedent, or
if there is more than one competent adult child of the decedent, the
majority of the surviving competent adult children. However, less
than one-half of the surviving adult children shall be vested with
the rights and duties of this section if they have used reasonable
efforts to notify all other surviving competent adult children of
their instructions and are not aware of any opposition to those
instructions on the part of more than one-half of all surviving
competent adult children.
(4) The surviving competent parent or parents of the decedent. If
one of the surviving competent parents is absent, the remaining
competent parent shall be vested with the rights and duties of this
section after reasonable efforts have been unsuccessful in locating
the absent surviving competent parent.
(5) The surviving competent adult person or persons respectively
in the next degrees of kindred. If there is more than one surviving
competent adult person of the same degree of kindred, the majority of
those persons. Less than the majority of surviving competent adult
persons of the same degree of kindred shall be vested with the rights
and duties of this section if those persons have used reasonable
efforts to notify all other surviving competent adult persons of the
same degree of kindred of their instructions and are not aware of any
opposition to those instructions on the part of one-half or more of
all surviving competent adult persons of the same degree of kindred.
(6) The public administrator when the deceased has sufficient
assets.
(b) (1) If any person to whom the right of control has vested
pursuant to subdivision (a) has been charged with first or second
degree murder or voluntary manslaughter in connection with the
decedent's death and those charges are known to the funeral director
or cemetery authority, the right of control is relinquished and
passed on to the next of kin in accordance with subdivision (a).
(2) If the charges against the person are dropped, or if the
person is acquitted of the charges, the right of control is returned
to the person.
(3) Notwithstanding this subdivision, no person who has been
charged with first or second degree murder or voluntary manslaughter
in connection with the decedent's death to whom the right of control
has not been returned pursuant to paragraph (2) shall have any right
to control disposition pursuant to subdivision (a) which shall be
applied, to the extent the funeral director or cemetery authority
know about the charges, as if that person did not exist.
(c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains, and to proceed
under this chapter to recover usual and customary charges for the
disposition, when both of the following apply:
(1) Either of the following applies:
(A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (5), inclusive, of
subdivision (a) exists.
(B) None of the persons described in paragraphs (1) to (5),
inclusive, of subdivision (a) can be found after reasonable inquiry,
or contacted by reasonable means.
(2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts. Written notice may be delivered by
hand, U.S. mail, facsimile transmission, or telegraph.
(d) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kindred and upon the estate of the decedent. However,
if a person accepts the gift of an entire body under subdivision (a)
of Section 7155.5, that person, subject to the terms of the gift,
shall be liable for the reasonable cost of final disposition of the
decedent.
(e) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
(f) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
(g) For purposes of this section, "adult" means an individual who
has attained 18 years of age, "child" means a natural or adopted
child of the decedent, and "competent" means an individual who has
not been declared incompetent by a court of law or who has been
declared competent by a court of law following a declaration of
incompetence.
SEC. 2. Section 4123 of the Probate Code is amended to read:
4123. (a) In a power of attorney under this division ,
a principal may grant authority to an attorney-in-fact to act on the
principal's behalf with respect to all lawful subjects and purposes
or with respect to one or more express subjects or purposes. The
attorney-in-fact may be granted authority with regard to the
principal's property, personal care, health care,
or any other matter.
(b) With regard to property matters, a power of attorney may grant
authority to make decisions concerning all or part of the principal'
s real and personal property, whether owned by the principal at the
time of the execution of the power of attorney or thereafter acquired
or whether located in this state or elsewhere, without the need for
a description of each item or parcel of property.
(c) With regard to personal care, a power of attorney may grant
authority to make decisions relating to the personal care of the
principal, including, but not limited to, determining where the
principal will live, providing meals, hiring household employees,
providing transportation, handling mail, and arranging recreation and
entertainment.
SEC. 3. Section 4609 of the Probate Code is amended to read:
4609. "Capacity" means a patient's person'
s ability to understand the nature and consequences of a
decision and to make and communicate a decision, and includes in the
case of proposed health care, including
the ability to understand its significant benefits, risks, and
alternatives , and to make and communicate a health care
decision .
SEC. 4. Section 4659 of the Probate Code is amended to read:
4659. (a) Except as provided in subdivision (b), none of the
following persons may make health care decisions as an agent under a
power of attorney for health care or a surrogate under this division:
(1) The supervising health care provider or an employee of the
health care institution where the patient is receiving care.
(2) An operator or employee of a community care facility or
residential care facility where the patient is receiving care.
(b) The prohibition in subdivision (a) does not apply to the
following persons:
(1) An employee , other than the supervising health care
provider, who is related to the patient by blood, marriage, or
adoption , or is a registered domestic partner of the patient
.
(2) An employee , other than the supervising health care
provider, who is employed by the same health care institution,
community care facility, or residential care facility for the elderly
as the patient.
(c) A conservator under the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code) may not be designated as an agent or surrogate to
make health care decisions by the conservatee, unless all of the
following are satisfied:
(1) The advance health care directive is otherwise valid.
(2) The conservatee is represented by legal counsel.
(3) The lawyer representing the conservatee signs a certificate
stating in substance:
"I am a lawyer authorized to practice law in the state where this
advance health care directive was executed, and the principal or
patient was my client at the time this advance directive was
executed. I have advised my client concerning his or her rights in
connection with this advance directive and the applicable law and the
consequences of signing or not signing this advance directive, and
my client, after being so advised, has executed this advance
directive."
SEC. 5. 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. An oral designation of a surrogate
shall be promptly recorded in the patient's health care record and
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.
(b) Designation of a surrogate under subdivision (a) does not
revoke the designation of an agent under a power of attorney for
health care unless the patient communicates the intention to revoke
in compliance with subdivision (a) of Section 4695.
SEC. 6. The heading of Chapter 3 (commencing with Section 4765) of
Part 3 of Division 4.7 of the Probate Code is amended to read:
CHAPTER 3. PETITIONS , AND
ORDERS , APPEALS
SEC. 7. Section 4766 of the Probate Code is amended to read:
4766. A petition may be filed under this part for any one or more
of the following purposes:
(a) Determining whether or not the patient has capacity to make
health care decisions.
(b) Determining whether an advance health care directive is in
effect or has terminated.
(c) Determining whether the acts or proposed acts of an agent or
surrogate are consistent with the patient's desires as expressed in
an advance health care directive or otherwise made known to the court
or, where the patient's desires are unknown or unclear, whether the
acts or proposed acts of the agent or surrogate are in the patient's
best interest.
(d) Declaring that the authority of an agent or surrogate is
terminated, upon a determination by the court that the agent or
surrogate has made a health care decision for the patient that
authorized anything illegal or upon a determination by the court of
both of the following:
(1) The agent or surrogate has violated, has failed to perform, or
is unfit to perform, the duty under an advance health care directive
to act consistent with the patient's desires or, where the patient's
desires are unknown or unclear, is acting (by action or inaction) in
a manner that is clearly contrary to the patient's best interest.
(2) At the time of the determination by the court, the patient
lacks the capacity to execute or to revoke an advance health care
directive or disqualify a surrogate.
(e) Compelling a third person to honor individual health care
instructions or the authority of an agent or surrogate.
SEC. 8. Section 4769 of the Probate Code is amended to read:
4769. (a) Subject to subdivision (b), at least 15 days before the
time set for hearing, the petitioner shall serve notice of the time
and place of the hearing, together with a copy of the petition, on
the following:
(1) The agent or surrogate, if not the petitioner.
(2) The patient, if not the petitioner.
(b) In the case of a petition to compel a third person to honor
individual health care instructions or the authority of an
agent or surrogate, notice of the time and place of the hearing,
together with a copy of the petition, shall be served on the third
person in the manner provided in Chapter 4 (commencing with Section
413.10) of Title 5 of Part 2 of the Code of Civil Procedure.