BILL ANALYSIS
AB 1278
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CONCURRENCE IN SENATE AMENDMENTS
AB 1278 (Wayne)
As Amended June 9, 2001
Majority vote
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|ASSEMBLY: |73-0 |(April 19, |SENATE: |22-11|(July 19, |
| | |2001) | | |2001) |
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Original Committee Reference: JUD.
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. Provides
that the duration of an informal surrogate designation would
be limited to 60 days, 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.
AB 1278
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The Senate amendments :
1)Clarify that a health care agent's duty of disposition of the
remains is separate from the agent's liability for the costs
of disposition.
2)Provide that the agent may only be held liable for the costs
of disposition where the agent has specifically agreed to pay
such costs, or has made decisions concerning disposition that
incur costs. Where there is no agreement to pay costs, the
agent is only liable for costs incurred as a result of the
agent's decisions to the extent that the estate or other
appropriate fund is insufficient.
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.
AS PASSED BY THE ASSEMBLY , this bill was substantially the same
in most respects. Specifically, this bill provided that:
1)A health care agent would have a duty of disposition of the
principal's remains and liability for the costs of such
disposition only if the agent specifically agreed to assume
such duty and liability.
2)If the agent assumed the duty of disposition, the agent would
be liable for the costs incurred as a result of the agent's
decisions concerning disposition to the extent that the
decedent's estate or other appropriate fund was insufficient.
FISCAL EFFECT : None
COMMENTS : This bill, which is sponsored by the California Law
Revision Commission (CLRC), makes a number of minor substantive
and technical revisions as a follow-up to AB 891 (Alquist),
Chapter 658, Statutes of 1999, the Health Care Decisions Law.
According to CLRC, as health care institutions and professional
groups have begun to study and implement the new law, CLRC has
learned of several problems that need further attention. This
bill proposes revisions to the 1999 legislation in the following
areas.
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AB 891 included a definition of capacity that was specifically
crafted to apply in the health care decision-making context.
CLRC 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.
In response to this concern, AB 1278, in effect, 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.
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. Due to concerns about the possibility of giving effect
to obsolete oral statements in the patient's record, the
effectiveness of oral surrogate designations was limited to the
"course of treatment or illness or during the stay in the health
care institution when the designation is made." CLRC states
that the "course of treatment or illness" rule does not provide
any real limit where the patient has a chronic illness.
Accordingly, CLRC recommends amending this rule to address these
problems and provide additional statutory guidance on surrogate
designations.
This bill reverses the presumption that a surrogate designation
revokes the appointment of a health care agent. This bill also
provides that, unless 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. In addition, this bill
also provides that the 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.
This bill also eliminates an agent's automatic liability for
funeral expenses, and it expands the grounds for petitioning the
court 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. This bill clarifies that a
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supervising health care provider may never serve 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. And this bill
makes a technical amendment to clarify that agents under a
general power of attorney do not have the authority to make
health care decisions.
Analysis Prepared by : Kathy Sher / JUD. / (916) 319-2334
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