BILL ANALYSIS
AB 1278
Page 1
Date of Hearing: April 17, 2001
ASSEMBLY COMMITTEE ON JUDICIARY
Darrell Steinberg, Chair
AB 1278 (Wayne) - As Amended: April 5, 2001
SUBJECT : HEALTH CARE DECISIONS
KEY ISSUE : SHOULD VARIOUS REVISIONS BE MADE TO THE RECENTLY
ENACTED HEALTH CARE DECISIONS LAW?
SYNOPSIS
This Bill, Which Is Sponsored By The California Law Revision
Commission, Makes A Number Of Minor Substantive And Technical
Revisions As A Follow-Up To The Health Care Decisions Law
Enacted Last Session (AB 891 - Alquist, Ch. 658, Stats. 1999).
The Bill, Among Other Things, Revises The Definition Of Capacity
With Respect To A Principal's Ability To Execute Or Revoke An
Advance Health Care Directive, Consistent With The General
Contract Standard. The Bill Also Clarifies That A Patient's
Informal Designation Of A Surrogate Health Care Decision-Maker
Would Not Revoke A Prior Designation Of An Agent In A Power Of
Attorney For Health Care Unless The Patient Also Expresses The
Intention To Remove The Agent. In Addition, The Bill Limits The
Duration Of An Informal Surrogate Designation To A 60-Day
Maximum, But Expiration Of The Designation Would Not Affect
Health Care Decision-Making Under Other Law Or Standards Of
Practice. The Bill Further Expands The Grounds For Judicial
Review Under The Health Care Decisions Law, Makes Clear That A
Supervising Health Care Provider Can Never Act As The Patient's
Agent, And Makes Other Technical And Clarifying Changes.
SUMMARY : Makes various revisions to the 1999 Health Care
Decisions Law. Specifically, this bill :
1)Generalizes the definition of capacity with respect to a
principal's ability to execute or revoke an advance health
care directive.
2)Provides that an informal designation of a surrogate health
care decision-maker would not revoke a prior designation of an
agent in a power of attorney for health care unless the
patient expresses the intention to remove the agent. It also
provides that the duration of an informal surrogate
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designation would be limited to 60 days maximum, but
expiration of the designation would not affect health care
decision-making under other law or standards of practice.
3)Provides that the health care agent would not automatically be
liable for the costs of disposition of the principal's
remains.
4)Expands the grounds for petitioning the court under the Health
Care Decisions law to include a petition to compel a third
person to honor the authority of a health care agent or
surrogate.
5)Makes clear that a supervising health care provider can never
act as an agent for his or her patient, even if related to the
patient by blood, marriage, adoption, or registered domestic
partnership, or where they are coworkers.
6)Excludes health care decisions from the authority of an
attorney-in-fact (agent) under a general power of attorney.
EXISTING LAW permits a person to authorize another to make
certain decisions on their behalf pursuant to a general power of
attorney or pursuant to an advance health care directive.
(Probate Code section 4123, 4600 et seq . All further statutory
references are to this code unless otherwise stated.)
FISCAL EFFECT : The bill as currently in print is not keyed
fiscal.
COMMENTS : This bill, which is sponsored by the California Law
Revision Commission (CLRC or Commission), makes a number of
minor substantive and technical revisions as a follow-up to AB
891, the Health Care Decisions Law enacted last session. A
brief overview of AB 891, followed by a description of each of
this bill's provisions, is set out below.
Background - Overview of AB 891 . The Health Care Decisions Law
was enacted in 1999 on recommendation of the Commission, and
became operative on July 1, 2000. (AB 891 - Alquist, Ch. 658,
Stats. 1999; see also 2000 Health Care Decisions Law and Revised
Power of Attorney Law, 30 Cal. L. Revision Comm'n Reports 1
(2000).) AB 891 streamlined and updated the provisions
governing health care decisions for adults without
decision-making capacity in order to promote the use and
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recognition of advance directives and to better effectuate
patients' wishes once they become incapable of making their own
decisions.
According to the CLRC, as health care institutions and
professional groups have begun to study and implement the new
law, the Commission has learned of several problems that need
further attention. This bill proposes revisions to the 1999
legislation in the following areas.
Definition of Capacity . AB 891 included a definition of
capacity that was specifically crafted to apply in the health
care decision-making context:
"Capacity" means "a patient's ability to understand the
nature and consequences of proposed health care, including
its significant benefits, risks, and alternatives, and to
make and communicate a health care decision." (Section
4609.)
The Commission explains that a technical problem has been noted
in the application of this definition where there is no
"proposed health care" at the time the individual's capacity is
relevant. This would commonly be the situation where a person
is filling out an advance health care directive to appoint a
health care agent or to give future health care instructions.
CLRC further states that "both the health care decision-making
standard and the instrument execution standard are aspects of
the same rule: the person must have the ability to understand
the nature and consequences of the decision or action and be
able to communicate it. Accordingly, the Commission recommends
generalizing and rewording the capacity definition to avoid the
technical problem when there is no 'proposed' health care. In
effect, this would return the law concerning capacity to execute
a power of attorney for health care to the rule in effect under
the Power of Attorney Law. This standard would also be applied
to selecting or disqualifying a surrogate." (Health Care
Decisions Law: Miscellaneous Revisions, 30 Cal. L. Revision
Comm'n Reports 621, 625-627 (2001)(hereafter "HCDL Misc.
Revisions").) CLRC also explains that, "[t]he helpful language
in the existing section concerning the person's ability to
understand the significant benefits, risks, and alternatives of
proposed health care would be retained as an application of the
general capacity standard in the context of making health care
decisions." ( Id ., at p. 627.)
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Accordingly, this bill would revise the definition of capacity
to read as follows:
"Capacity" means "a 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, the ability to understand its
significant benefits, risks, and alternatives." (Proposed
section 4609, p. 5, lines 1-6.)
Patient's Designation of Surrogate . The Health Care Decisions
Law includes provisions recognizing the patient's right to
designate a "surrogate" by personally informing the supervising
health care provider, orally or in writing. (See sections
4711-4715.) According to CLRC, while designation of an agent
under a power of attorney for health care is preferred,
recognition of the clinical reality of surrogate designations
affirms the fundamental principle of patient autonomy. Due to
concerns about the possibility of giving effect to obsolete oral
statements in the patient's record, the effectiveness of oral
surrogate designations under section 4711 was limited to the
"course of treatment or illness or during the stay in the health
care institution when the designation is made." The Commission
explains that two concerns have arisen in applying section 4711:
(1) The default rule that a surrogate designation, whether oral
or written, would act as a revocation of the appointment of an
agent under a power of attorney for health care is too harsh and
may actually defeat the patient's intent; (2) Particularly in
the nursing home setting, the restriction on the duration of
oral surrogate designations to the "stay in the health care
institution" is not a meaningful limitation. The Commission
also states that the "course of treatment or illness" rule would
not provide any real limit where the patient has diabetes or
some other chronic illness. Accordingly, CLRC recommends
amending section 4711 to address these problems and provide
additional statutory guidance on surrogate designations, as
summarized below.
- Relation of Surrogate Designation to Health Care Agent : The
bill reverses the presumption that a surrogate designation
revokes the appointment of a health care agent. (See proposed
section 4711(d), p. 6, lines 33-39.) "Designating a surrogate
should act as a revocation of the agency only if the patient
expresses that intention in compliance with the general rule
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governing powers of attorney for health care." (HCDL Misc.
Revisions, supra , at p. 628.) As CLRC explains, a patient may
want the surrogate to act in place of an agent named in a power
of attorney for any number of reasons, without intending to
permanently replace the agent. For example, the agent may be
unavailable because he or she is on a vacation or otherwise
unavailable when the patient is hospitalized. Or the named
agent may be experiencing health or personal problems that impel
the patient to seek someone else as a temporary surrogate.
( Id ., at pp. 628-629.)
- Duration of Surrogate Designation : The bill provides that,
"[u]nless the patient specifies a shorter period, [an informal]
surrogate designation ? is effective only during the course of
treatment or illness during the stay in the health care
institution when the surrogate designation is made, or for 60
days, whichever period is shorter ." (Proposed section 4711(b),
p. 6, lines 24-28, emphasis added.) The Commission provides the
following rationale for this change:
A surrogate designation should be effective for no more
than 60 days. This rule preserves the authority of the
formally designated agent under a power of attorney for
health care, but recognizes patient autonomy and the
potential need for a surrogate when an agent can't act. It
also bolsters the power of attorney for health care by
making clear that informal surrogate designations, while
entitled to respect as expressions of the patient's wishes,
are not an alternative to complying with statutory
formalities. A patient may not have time to execute a
power of attorney for health care, so it is appropriate to
recognize the need for surrogate designations. But after a
sufficient time has passed, such as 60 days, the person
should consider executing a formal advance directive and
not rely on statements made in the hospital and the
recording of those statements in the patient's medical
record. (HCDL Misc. Revisions, supra , at p. 629.)
- Effect of Surrogacy Expiration : The bill also provides that
"[t]he expiration of [an informal] surrogate designation ? does
not affect any role the person designated ? may have in making
health care decisions for the patient under any other law or
standards of practice." (Proposed section 4711(c), p. 6, lines
29-32.) According to CLRC, there is a danger that terminating
the authority of surrogates under the above provisions might be
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read too broadly. The Commission explains that "the proposed
law makes clear that the duration limit is intended to affect
only the special statutory surrogate rules, and not the ability
of a designated surrogate to make or participate in health care
decisions for the patient under other principles." (HCDL Misc.
Revisions, supra , at p. 629, footnote omitted.)
Agent's Liability for Funeral Expenses . Health and Safety Code
section 7100 was amended in 1998 to give health care agents the
top priority in controlling disposition of the decedent's
remains. (SB 1360 - Alpert, Ch. 253, Stats. 1998, 1.)
However, that section also appears to make the agent
automatically liable for funeral expenses. This bill would
eliminate automatic liability, and limit the agent's liability
to situations where the agent agrees to assume liability or
where the agent makes decisions resulting in costs that cannot
be paid out of the decedent's estate. (See proposed Health and
Safety Code section 7100(a)(1), p. 2, lines 10-16. For further
explanation of, and rationale for, this proposed change, see
HCDL Misc. Revisions, supra , at pp. 630-632.)
Expanded Scope of Judicial Review . The Health Care Decisions
Law provides an expeditious procedure for obtaining judicial
review in appropriate situations. The grounds for a petition
are broad, but not unlimited, and include determining (1)
whether the patient has capacity to make health care decisions,
(2) whether an advance health care directive is in effect, and
(3) 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. (Section 4766.)
This bill would expand the grounds for petitioning the court
under section 4766 to include a petition to compel a third party
to honor individual health care instructions or the authority of
a health care agent or surrogate, consistent with the treatment
of powers of attorney for financial matters. (Proposed section
4766(e), p. 7, lines 34-35; see also HCDL Misc. Revisions,
supra , at pp. 632-633.)
Prohibiting Supervising Health Care Provider From Serving As
Agent . The Health Care Decisions Law carried forward from prior
law the limitations on who can be designated as a health care
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agent, as well as the exceptions to the limitations. (See
section 4659.) Current law sets forth the general rule that
the patient's supervising health care provider or an employee of
the health care institution cannot act as an agent or surrogate
health care decision-maker. (Section 4659(a)(1).) However,
subdivision (b) of section 4659 provides an exception to this
limitation, which permits employees who are related to the
patient by blood, marriage, or adoption, or who are employed by
the same health care institution, to act as the relative's or
coworker's health care agent. Thus, if a patient is employed by
the same institution as his or her doctor, or is related to the
doctor and the doctor is an employee, the exception to the
statutory prohibition would seem to apply.
CLRC asserts that "[i]t does not appear that this statute ever
intended to permit the treating physician (included within the
term 'supervising health care provider') to serve as the
patient's health care agent, but this construction is possible
under a literal reading of the statute in circumstances where
the physician falls into the class of employees and the patient
is a relative or coworker. [] The proposed amendment makes
clear that a supervising health care provider cannot make
decisions as a health care agent for his or her patient in any
circumstances. Under this rule, if a doctor wants to act as the
agent for his or her spouse, for example, the doctor would need
to decline to act as the supervising health care provider."
(HCDL Misc. Revisions, supra , at pp. 633-634.)
Accordingly, this bill amends the code to prohibit a supervising
health care provider from serving as the patient's agent, even
if the provider is related to the patient by blood, marriage,
adoption, or registered domestic partnership, as well as if they
are coworkers. (See proposed section 4659(b), p. 5, lines
18-26.)
Clarifying That Agents Under a General Power of Attorney Do Not
Have Authority to Make Health Care Decisions . As noted above,
existing law permits a person to authorize another to make
certain decisions on their behalf pursuant to a general power of
attorney (section 4123) or pursuant to an advance health care
directive, including a power of attorney for health care.
(Sections 4600 et seq .) This bill makes a technical amendment
to section 4123 to clarify that agents under a general power of
attorney do not have the authority to make health care
decisions. By doing so, the bill makes clear that the more
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specific advance health care directive scheme, which includes a
power of attorney for health care, is the appropriate legal
vehicle for effectuating a person's health care decisions.
REGISTERED SUPPORT / OPPOSITION :
Support
California Law Revision Commission (sponsor)
National Senior Citizens Law Center
Opposition
None on file
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334