BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 1278 A
Assembly Member Wayne B
As Amended June 14, 2001
Hearing Date: July 3, 2001 1
Health and Safety Code; Probate Code 2
GMO:sr 7
8
SUBJECT
Health Care Decisions
DESCRIPTION
This bill would make minor substantive and technical
revisions to the Health Care Decisions Law (HCDL) at the
recommendation of the California Law Revision Commission
(CLRC).
The revisions would clarify duties and liabilities of an
appointed agent for health care with respect to funeral
decisions and the relationship between a "surrogate" and an
"agent," and remove authority to make health care decisions
from the authority that may be given by a person having
capacity to an attorney-in-fact under a general power of
attorney. The bill would redefine "capacity" as used in
the HCDL and specify use of a court petition to enforce
health care instructions by the person or his or her agent
or surrogate.
BACKGROUND
California's Health Care Decisions Law was enacted in 1999
(AB 891, Alquist, Chapter 658, Statutes of 1999), and
became operative on July 1, 2000. The HCDL provides for the
creation, form, and revocation of advance health care
directives, and for the manner of making health care
decisions for patients without surrogates. While there
were inconsistent and unclear guidelines being used by the
(more)
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medical profession and the bar before AB 891 was passed,
the Act now provides uniform statutory rules for
determining succession to decisionmaking in the case of an
incapacitated person, especially one who has no appointed
surrogate.
Since it became operative last year, health care
institutions and professional groups that have begun to
implement the new law have uncovered several problems and
reported them to the CLRC. This bill contains all of the
Commission's recommendations for resolving those reported
problems and other minor issues.
CHANGES TO EXISTING LAW
Under the Health Care Decisions Law (the HCDL), a person
having capacity may authorize another to make decisions on
his or her behalf pursuant to a power of attorney or
pursuant to an advance health care directive, as specified.
The HCDL defines a legally sufficient health care
directive, specifies how a power of attorney that suffices
as a health care directive is to be limited, and specifies
the powers of an agent appointed by the principal of a
power of attorney for health care. Under the HCDL, a
patient in a health care facility or intermediate care
facility may also appoint a surrogate, orally or in
writing, and communicate that to the supervising health
care provider.
This bill would:
clarify that an attorney-in fact under a general power of
attorney is not authorized to make health care decisions
for the principal;
redefine "capacity" with respect to a person's ability to
understand, make, and communicate decisions, including
health care decisions;
clarify the duties and liabilities of an agent with
respect to funeral decisions;
clarify the authority of a "surrogate" rather than an
"agent" to make health care decisions if both were
appointed;
clarify who may and may not make health care decisions as
a surrogate under the Health Care Decisions Law or an
agent under a power of attorney for health care;
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specify use of a court petition to honor individual
health care instructions or to enforce health care
decisions by an agent or surrogate.
COMMENT
1. Stated need for the bill
The miscellaneous revisions to the Health Care Decisions
Law proposed by the California Law Revision Commission
arose from a follow-up study of the HCDL since it became
effective July 1, 2000. The Commission states that the
revisions are necessary to avoid unintended consequences
of the HCDL, and to clarify ambiguities that have
surfaced or that may cause problems later on.
2. Definition of "capacity"
"Capacity" is currently defined in the HCDL as:
"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." [Probate Code Section
4609.]
The CLRC explains that when HCDL was drafted, the
Commission adopted the definition of capacity from Health
and Safety Code Section 1418.8 (which actually defines
when a person in a skilled nursing facility or an
intermediate care facility lacks capacity to make
decisions) and the Uniform Health Care Decisions Law of
1993.
Now, the CLRC states, a technical problem has surfaced
where there is no "proposed health care" at the time the
individual's capacity is relevant. This would occur
when, for example, a person is filling out an advance
health care directive to appoint a health care agent or
to give future health care instructions. Even though the
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"ability to make and communicate a health care decision"
prong of the definition is met, the fact that there is no
"proposed health care" may cause confusion.
By proposing the new definition of "capacity" the
Commission intends to make clear that in both aspects
(i.e., health care decisionmaking and instrument
execution), the person must have the ability to
understand the nature and consequences of the decision or
action and be able to communicate it. This would avoid
the technical problem raised when there is no "proposed
health care" for the person executing the advance health
care directive.
Under this bill, the new definition of "capacity" would
be:
"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."
The CLRC points out that this new definition will also
apply to a person's decision to select or disqualify a
surrogate.
3. Surrogates and agents for health care: what happens
when both are appointed; limitations on surrogate
appointment
While designation of an agent under a power of attorney
for health care is the preferred route, the HCDL permits
a patient to designate a "surrogate" by personally
informing the supervising health care provider, orally or
in writing, affirming the patient's autonomy in the
clinical context. However, the HCDL also limits such
surrogate designations to the "course of treatment or
illness or during the stay in the health care institution
when the designation is made."
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There are two problems with the above rules, according to
the CLRC. One is that even though the statute does not
specify that a patient's oral designation of a surrogate
revokes a previous designation of an agent (under a power
of attorney for health care), the CLRC comment to Section
4711 provides for that result (i.e., the statute would be
construed as to revoke the agent's previous designation).
In retrospect, CLRC now believes this policy would be
too harsh and may actually defeat a patient's intent.
The second problem is that the restriction on the
duration of oral surrogate designations to the "stay in
the health care institution" is not a meaningful
limitation (for example, if the patient has diabetes or
other chronic condition, thus making the stay in the
health care institution unlimited).
This bill resolves these problems by making the surrogate
designation effective (whether oral or in writing) only
for the duration of the course of treatment or the stay
in the health care facility, or 60 days, whichever is
shorter. During this period, the surrogate would have
priority over an agent for health care. The expiration
of the surrogate designation would not affect any other
authority of the surrogate under any other law or
standard of practice.
However, the bill would make clear that the designation
of a surrogate under these conditions would not revoke
the designation of an agent for health care, unless the
patient communicates the intention to revoke in writing,
or by personally informing the supervising health care
provider (who would note that in the patient's records).
This new scheme proposed by AB 1278 would thus reverse
that which exists under the current HCDL, which revokes
the agent's authority once a surrogate is designated.
The CLRC agrees that "designating a surrogate should act
as revocation of the agency only if the patient expresses
that intention," because a patient may want the
surrogate to act in place of a named agent for a number
of reasons, without intending to permanently replace the
agent (such as when an agent is on a vacation or is
otherwise unavailable when the patient is hospitalized).
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4. Attorney-in-fact under general power of attorney has
no health care decision-making power
A general power of attorney grants the attorney-in-fact
broad authority and decisionmaking powers with regards to
the principal's property, personal care, health care or
any other matter.
This bill would delete the authority to make health care
decisions from those granted to an attorney-in-fact.
By doing so, a person who wants to grant such authority
to another must make it under a power of attorney for
health care. This would be in keeping with the goal of
the HCDL to encourage people to use the advance health
care directive or power of attorney for health care as
the appropriate vehicles for health care decisions.
4. Agent's liability for funeral expenses clarified and
limited
Existing law provides a detailed scheme defining rights,
duties, and liabilities of surviving family members and
other persons, including agents and public guardians,
relating to disposition of remains. The statutory scheme
makes it a misdemeanor to fail to perform the statutory
duty and provides liability for treble damages. [Health
and Safety Code Sections 7100 et seq.]
In 1998 SB 1360 (Alpert, Chapter 253, Statutes of 1998)
amended Health and Safety Code Section 7100 to give
health care agents top priority to control disposition of
the decedent's remains. This amendment was made because
of a problem created by a person charged with the
decedent's murder having priority in making decisions for
the disposition of the remains.
Apparently, because the liability of an agent under the
HCDL is not clear as it relates to funeral expenses
(which would be governed by the Health and Safety Code
provisions, including the misdemeanor and treble damages
liability), many potential agents are reluctant to be
appointed, and persons who want to designate family
members or friends as agents hesitate because of this
potential liability.
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AB 1278 resolves this situation by specifying that an
agent under a power of attorney for health care is liable
for the costs of disposition (of the decedent's remains)
only where the agent makes a specific arrangement to pay
for the costs of disposition, or where, in the absence of
such an arrangement, the agent does make decisions
concerning disposition, but only for reasonable costs
incurred and only to the extent that the decedent's
estate or other appropriate fund is insufficient.
5. Treating physician may not be health care agent
The HCDL carried forward the limitations enacted in the
1980s on who can be designated as a health care agent and
the exceptions to the limitations. Thus, under Section
4659, the patient's supervising health care provider or
an employee of the health care provider cannot act as an
agent or surrogate health care decisionmaker. An
exception exists where an employee related to the patient
by blood, marriage, or adoption, or who is employed by
the same health care institution, can be appointed to act
as the relative's or coworker's health care agent.
The CLRC states that the statute was never intended to
permit the treating physician (who would be included in
the term "supervising health care provider") to serve as
the patient's health care agent - a construction that is
possible under the current language of Section 4659.
This bill would make clear that a supervising health care
provider cannot make decisions as a health care agent for
his or her patient under any circumstances. Thus, under
this rule, if a doctor wants to act as the agent for his
or her spouse, the doctor would need to decline to act as
the supervising health care provider.
6. New petition to require third persons to honor agent's
authority under power of attorney for health care or
surrogate's health care decision for patient
The HCDL provides an expedited procedure for obtaining
judicial review in appropriate situations. Specified
situations that may be addressed by such petitions are 1)
whether the patient has capacity to make health care
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decisions; 2) whether an advance health care directive is
in effect; 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 as made known to the court; or 4) whether, 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.
This bill would allow a petition to be filed under the
same expedited procedure, to compel a third person to
honor individual health care instructions or the
authority of an agent or surrogate.
7. Technical amendment
On page 2, line 20, strike out "cost" and insert "costs"
The author will offer this amendment in committee.
Support: National Senior Citizens Law Center; California
Medical Association; American Association of Retired
Persons (AARP) - California; Protection and
Advocacy, Inc.
Opposition: None Known
HISTORY
Source: California Law Revision Commission
Related Pending Legislation: None Known
Prior Legislation: AB 891 (Alquist, Chapter 658, Statutes
of 1999) -- enacted the Health Care Decisions
Law
Prior Vote: Asm. Jud. (Ayes 8, Noes 0)
Asm. Flr. (Ayes 73, Noes 0)
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