BILL ANALYSIS
AB 891
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Date of Hearing: April 20, 1999
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 891 (Alquist) - As Amended: April 15, 1999
SUBJECT : HEALTH CARE DECISIONS FOR ADULTS WITHOUT
DECISIONMAKING CAPACITY
KEY ISSUE : SHOULD A NEW HEALTH CARE DECISIONS LAW BE ENACTED TO
PROMOTE THE USE AND RECOGNITION OF ADVANCE DIRECTIVES AND TO
BETTER EFFECTUATE PATIENTS' WISHES ONCE THEY BECOME INCAPABLE OF
MAKING THEIR OWN DECISIONS?
SUMMARY : Streamlines and updates the provisions governing
health care decisions for adults without decisionmaking
capacity. Specifically, this bill repeals the provisions
governing durable powers of attorney for health care and the
Natural Death Act, and revises and recasts these provisions as
part of a new Health Care Decisions Law which, among other
things, does the following:
1)Creates a new advance health care directives scheme which
authorizes an adult having capacity to either make an oral or
written "individual health care instruction" which provides
direction concerning a health care decision for the patient,
or to appoint an agent through a power of attorney for health
care, or both. The individual instruction may be limited by
the patient to take effect only if specified conditions arise.
2)Creates a new "power of attorney for health care" (PAHC)
mechanism which continues many of the existing provisions
governing durable powers of attorney for health care, except
for the following key changes:
a) Witnesses are recommended, but not required, in order to
execute the instrument (unless the individual is a patient
in a skilled nursing facility at the time the advance
directive is executed, in which case the existing
requirement for either two witnesses or notarization is
maintained).
b) The statutory requirement that the PAHC state the date
of its execution is deleted, consistent with the laws
governing wills and trusts.
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c) Statutorily required warnings are deleted in favor of an
introductory explanation of the purpose and effect of an
advance health care directive, which is contained on the
new optional statutory form.
d) Rules regarding revocation are relaxed by providing that
a later advance directive revokes a prior advance directive
only to the extent of the conflict, rather than having the
effect of revoking the prior directive in its entirety as
required under current law.
e) Authorizes the principal (patient) in a PAHC to grant
authority to make decisions relating to the personal care
of the patient, including, but not limited to, determining
where the patient will live, providing meals, hiring
household employees, providing transportation, handling
mail, and arranging recreation and entertainment.
3)Specifies that the authority of an agent becomes effective
only on a determination that the patient lacks capacity and
ceases to be effective on a determination that the patient has
recovered capacity. Also specifies that the primary physician
is to make these capacity determinations unless otherwise
specified in the PAHC or other written advance health care
directive.
4)Requires the primary physician to make determinations whether
other conditions exist that may affect an individual health
care instruction (e.g., an individual might specify that
withdrawal or withholding of treatment that keeps the
individual alive may only occur if the individual has an
incurable or irreversible condition that will result in the
individual's death within a relatively short time), unless the
patient specifies otherwise in the instrument.
5)Establishes a uniform standard of decisionmaking for adults
without decisionmaking capacity so that the same rules apply
whether the decisionmaker is an agent under a PAHC, another
surrogate appointed by the patient, a conservator or a court.
In each instance, the surrogate is required to make decisions
in accordance with the patient's individual health care
instructions, if any, and other wishes of the patient to the
extent known to the surrogate. Otherwise, the surrogate shall
make the decision in accordance with the best interests of the
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patient. In determining the patient's best interest, the
surrogate shall consider the patient's personal values to the
extent known to the surrogate.
6)Defines the following key terms for the purposes of the new
law:
a) "Advance health care directive" or "advance directive"
means either an individual health care instruction or a
power of attorney for health care.
b) "Agent" means an individual designated in a power of
attorney for health care to make a health care decision for
the principal, including a successor or alternate agent.
c) "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.
d) "Health care" means any care, treatment, service, or
procedure to maintain, diagnose, or otherwise affect a
patient's physical or mental condition.
e) "Health care decision" means a decision made by the
patient or the patient's agent, conservator, or surrogate,
regarding the patient's health care, including the
following: (i) selection and discharge of health care
providers and institutions; (ii) approval or disapproval of
diagnostic tests, surgical procedures, and programs of
medication; and, (iii) directions to provide, withhold, or
withdraw artificial nutrition and hydration and all other
forms of health care, including cardiopulmonary
resuscitation.
f) "Individual health care instruction" or "individual
instruction" means a patient's written or oral direction
concerning a health care decision for the patient.
g) "Patient" means an adult whose health care is under
consideration, and includes a principal under a power of
attorney for health care and an adult who has given an
individual health care instruction or designated a
surrogate.
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h) "Principal" means an adult who executes a power of
attorney for health care.
7)Creates a new optional statutory advance health care
directives form which can be used to either appoint an agent
or make individual health care instructions, or both.
8)Establishes judicial review procedures pertaining to PAHCs and
advance directives similar to those contained in current law,
but indicates that judicial intervention is disfavored.
9)Expands the scope of the scheme for obtaining court
authorization for medical treatment of adults without
conservators who lack decisionmaking capacity by broadening
the types of health care decisions covered, including, but not
limited to, decisions to withdraw or withhold life sustaining
treatment. It also expands the list of persons eligible to
petition for such court authorization to include the patient's
agent under a PAHC.
10)Makes various technical, conforming changes in related code
provisions.
11)Makes the above provisions operative on July 1, 2000, but
does not affect the validity of an advance health care
directive or durable power of attorney for health care
previously executed that was valid under prior law.
EXISTING LAW :
1)Recognizes the right of a competent adult to direct or refuse
medical treatment. (See e.g., Cruzan v. Director, Mo. Dept.
of Health (1990) 497 U.S. 261; Thor v. Superior Court (1993) 5
Cal.4th 725; Cobbs v. Grant (1970) 8 Cal.3d 229.)
2)Authorizes an adult of sound mind to appoint an
attorney-in-fact (agent) to make health care decisions for
that individual in the event of his or her incapacity pursuant
to a durable power of attorney for health care. (Probate Code
Section 4600 et seq .)
3)Authorizes, under the Natural Death Act, an adult of sound
mind to execute a declaration governing the withholding or
withdrawal of life sustaining treatment. (Health and Safety
Code Section 7185 et seq .)
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4)Provides for court appointment of a guardian (in the case of
minors) or conservator (in the case of adults) for individuals
who are unable to take care of their basic needs and/or are
unable to resist fraud or undue influence. (Probate Code
Section 1400 et seq .)
5)Establishes a special procedure for court-authorized medical
treatment for certain adults without conservators. (Probate
Code Section 3200 et seq .)
FISCAL EFFECT : Unknown
COMMENTS : This bill, which is sponsored by the California Law
Revision Commission, proposes a new Health Care Decisions Law
which consolidates the Natural Death Act and the durable power
of attorney for health care. Drawing heavily on the Uniform
Health-Care Decisions Act of 1993, the bill includes new rules
governing individual health care instructions, and provides a
new optional statutory form for advance health care directives.
According to the sponsor, conforming changes in the procedures
for obtaining court authorizations for medical treatment would
make clear that courts in proper cases have the same authority
as other surrogates to make health care decisions, including
withholding or withdrawal of life-sustaining treatment.
Similarly, the statute governing decisionmaking by conservators
for patients who have been adjudicated to lack the capacity to
make health care decisions are conformed to the standards
governing other health care surrogates.
The sponsor states that the bill would unify the standards
governing health care decisionmaking for adults without
decisionmaking capacity so that the same rules apply whether the
surrogate decisionmaker is an agent named in the patient's
advance directive, a public guardian or conservator, or a court
making health care decisions as a last resort. According to the
sponsor, "[t]he guiding principal is to effectuate the stated
desires of the patient, as set out in an advance directive or,
in the absence of such a directive, as expressed by the patient
to authorized surrogate decisionmakers. If the patient has not
made his or her wishes known, health care decisions are to be
made in the patient's best interest, as determined by the
appropriate surrogate, taking into account the patient's
personal values known to the surrogate. The Health Care
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Decision Law is intended to fulfill the incapacitated patient's
desires and best interest without resort to judicial
proceedings, except as a last resort."
According to the sponsor, "[r]ules concerning duties and
liabilities of surrogates are provided, consistent with existing
rules applicable to durable powers of attorney for health care.
In addition, existing limitations on the authority of agents and
the prohibition on mercy killing and euthanasia are continued
and applied to all surrogate decisionmakers." The bill is
discussed in detail in the sponsor's printed recommendation
entitled Health Care Decisions for Adults Without Decisionmaking
Capacity, 29 Cal. L. Revision Comm'n Reports 1 (1999)("Health
Care Decisions").
Recent amendments removed controversial provisions . The bill,
as introduced, contained several new provisions governing
decisionmaking for adults without capacity who had neither
appointed an agent nor executed an advance health care
directive, which had generated some controversy. After
Committee staff raised concerns regarding these provisions with
the author and the sponsor, they concurred the best approach is
to limit the bill at this time to the noncontroversial
provisions described above and to work with
Committee staff and other interested parties as the bill
progresses in an attempt to achieve consensus on these issues.
The recent amendments to the bill deleted these controversial
provisions.
Overview of key provisions . As noted above, this bill
consolidates the Natural Death Act and the durable power of
attorney for health care, and promotes the use and recognition
of advance directives to improve the effectuation of patients'
wishes once they become incapable of making their own health
care decisions. A brief summary of some of the bill's key
provisions follows.
Streamlining Powers of Attorney for Health Care . The original
durable power of attorney for health care was subject to a
number of restrictions that are now considered to be overly
protective. It is currently recognized that overly restrictive
execution requirements for powers of attorney for health care
unnecessarily impede the effectuation of the patient's intent.
The proposed law contains the following streamlining changes.
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Witnessing requirements relaxed . The Uniform Health-Care
Decisions Act (UHCDA) adopts the principle that no witnesses
should be required in a PAHC, although the use of witnesses is
encouraged, and places for signatures of witnesses are provided
on the statutory form. (UHCDA Section 2(b).) The bill follows
the UHCDA in recommending, but not requiring witnesses (in place
of the existing requirement of two witnesses or notarization).
However, there are circumstances where additional protections
are necessary, which is why the bill continues the special rules
applicable to execution of a PAHC by patients in skilled nursing
facilities. ( Health Care Decisions , supra , 29 Cal. L. Revision
Comm'n Reports at pp. 19-21.)
Dating of instrument no longer required . The bill also
dispenses with the statutory requirement that a PAHC state the
date for its execution. As the Commission notes, including a
date is certainly the best practice, and the statutory form
provides a space for the date. However, requiring a date can
defeat accomplishment of the patient's wishes if the consequence
of omission is to invalidate the advance directive. Although
dating important documents may be desirable, the law does not
require either wills or trusts to be dated. ( Id ., at p. 21.)
Statutory warnings deleted . Existing law provides a number of
"warnings" that must be included depending on whether a form
durable power of attorney for health care is on a printed form,
drawn from the statutory form, or individually drafted by an
attorney or someone else. (See Probate Code Sections 4703,
4704, 4771, 4772, 4774.) According to the sponsor, "[t]he
existing warning provisions are confusing and rigid. While
there has been an attempt to educate potential users through
concise and simple statements, the net effect of the existing
scheme may have been to inhibit usage. ? [T]he proposed law no
longer attempts to instruct lawyers on how to advise their
clients. The Commission expects that those who prepare printed
forms will copy the language of the optional form or use a
reasonable equivalent without the need to mandate specific
language in the statute." ( Id ., at 22.)
Revocation rules simplified . A durable power of attorney for
health care under existing law can be revoked expressly in
writing or by notifying the health care provider orally or in
writing, but it is also revoked by operation of law if the
principal executes a later power of attorney for health care.
(See Probate Code Section 4727(a), (b), (d).) This last rule,
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unfortunately, is a potential trap for the unwary since a
principal may attempt to amend or clarify an earlier power, or
designate a new agent, in ignorance of the rule and
inadvertently wipe out important instructions. Following the
UHCDA, the bill specifies that a later advance directive revokes
a prior directive only to the extent of the conflict, thus
promoting the fundamental purpose of implementing the patient's
intent. ( Id ., at 22-23.)
New authority to execute individual health care instructions .
Under current law, California does not authorize what the UHCDA
calls an "individual instruction," other than through the
mechanism of the Natural Death Act, which applies only to
patients in a terminal or permanent unconscious condition.
Health care instructions may be given in the context of
appointing and instructing an attorney-in-fact under a durable
power of attorney for health care. However, health care
providers' duties under the existing durable power of attorney
for health care focus on the agent's decisions, rather than the
principal's instructions. As a practical matter, many
individuals do not have someone in their life that they can
entrust with making such health care decisions. The bill adopts
the UHCDA's broader concept of authorizing individual health
care instructions, which makes the law clearer, more direct, and
easier to use. The optional statutory form will enable an
individual to record his or her preferences concerning health
care or to select an agent, or both. ( Id ., at 23-24.)
New triggering mechanism for advance directives . Under the
existing durable power of attorney for health care scheme, the
statute is silent as to when the instrument is to take effect.
Rather, it simply provides that the agent is not authorized to
make health care decisions if the principal has capacity,
without indicating who makes this determination. (See Probate
Code Section 4720(a).) The bill specifically provides that,
unless otherwise specified in the instrument, the authority of
an agent becomes effective only on a determination that the
principal lacks capacity, and ceases to be effective on a
determination that the principal has recovered capacity.
(Proposed Probate Code Section 4682, p. 43, lines 8-12.) It
also provides that the primary physician makes these capacity
determinations, unless otherwise specified in the PAHC or other
written advance health care directive. In addition, the primary
physician is responsible for making determinations whether other
conditions exist that may affect an individual health care
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instruction (e.g., an individual might specify that withdrawal
or withholding of treatment that keeps the individual alive may
only occur if the individual has an incurable or irreversible
condition that will result in the individual's death within a
relatively short time), unless the patient specifies otherwise
in the instrument. (Proposed Probate Code Section 4658, p. 36,
lines 19-25.)
Uniform standards for surrogate decisionmaking . The existing
power of attorney for health care law requires the
attorney-in-fact to "act consistent with the desires of the
principal as expressed in the durable power of attorney or
otherwise made known to the attorney-in-fact at any time or, if
the principal's desires are unknown, to act in the best
interests of the principal." (Probate Code Section 4720(c).)
The UHCDA adopts the same rule as a general standard for all
surrogates. This bill, like the UHCDA, applies these standards
throughout the statute. Thus, the same fundamental standard
will apply to all decisionmakers: agents under a PAHC,
surrogates designated by the patient, guardians and
conservators, and courts deciding cases under the
court-authorized health care procedures. ( Id ., at 40-41.) In
each instance, the surrogate is required to make decisions in
accordance with the patient's individual health care
instructions, if any, and other wishes of the patient, to the
extent known to the surrogate. Otherwise, the surrogate shall
make the decision in accordance with the best interests of the
patient. In determining the patient's best interest, the
surrogate shall consider the patient's personal values to the
extent known to the surrogate.
New powers to address principal's personal needs . The existing
durable power of attorney for health care scheme is silent on
the question of whether the principal can authorize the agent to
make a variety of decisions regarding the principal's personal
care needs that may fall outside the scope of "health care"
decisions. This bill, paralelling the general power of attorney
mechanism, allows (but does not require) the principal in a PAHC
to 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.
Proposed author's amendments . The author has notified Committee
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staff that she will be proposing the following three amendments
in Committee:
1) Principal's right to object . In the existing law governing
durable powers of attorney for health care, there is a specific
prohibition on the power of the attorney-in-fact to consent to
any health care decision when the principal objects. (Probate
Code Section 4724.) The current version of the bill does not
contain a similar provision. The author has agreed, at the
request of Committee staff, to amend the bill in order to make
the principal's right to object explicit. The following
amendment would accomplish this purpose:
On page 44, between lines 16 and 17, add new Section 4689, which
would read as follows:
"Nothing in this division authorizes an agent under a power
of attorney for health care to make a health care decision
if the principal objects to the decision. In this case,
the matter is governed by the law that would apply if there
were no power of attorney for health care."
2) Health care surrogates . In the recent amendments to the
bill, the provision which authorizes a patient to designate an
individual as a surrogate to make health care decisions (without
having to go through the formalities of executing a PAHC) by
personally informing the supervising health care provider was
inadvertently deleted. The following amendment would reinsert
this provision:
On page 53, line 28, insert the following:
"Chapter 3. Health Care Surrogates.
4711. 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 is effective only during the course of treatment
or illness or during the stay in the health care
institution when the designation is made."
3) Clarifying the immunity provision . At the request of
Consumer Attorneys of California, the author has agreed to take
the following amendment to clarify the immunity provision in
proposed Probate Code Section 4740(a), consistent with the good
faith standard in current law:
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On page 61, lines 7-10, amend subdivision (a) of Probate Code
Section 4740 to read as follows:
"(a) Complying with a health care decision of a person
apparently having the health care provider or health care
institution believes in good faith has authority to make a
health care decision for a patient, including a decision to
withhold or withdraw health care.
REGISTERED SUPPORT / OPPOSITION :
Support
California Law Revision Commission (sponsor)
California Healthcare Association
Opposition
None on file
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334