BILL ANALYSIS                                                                                                                                                                                                    



                                                             


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|SENATE RULES COMMITTEE            |                   AB 891|
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                       THIRD READING
                              

Bill No:  AB 891
Author:   Alquist (D)
Amended:  9/1/99 in Senate
Vote:     21

  
  SENATE JUDICIARY COMMITTEE  :  5-2, 7/13/99
AYES:  Burton, Escutia, O'Connell, Sher, Schiff
NOES:  Haynes, Wright
NOT VOTING:  Morrow, Peace

  SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

  ASSEMBLY FLOOR  :  62-17, 6/1/99 - See last page for vote
 

  SUBJECT  :    Health care decisions:  durable power of  
attorney

  SOURCE  :     California Law Revision Commission

 
  DIGEST  :    This bill repeals provisions of the codes  
related to durable powers of attorney for health care and  
would repeal the Natural Death Act which provides that a  
person has the right to instruct his or her physician to  
withhold or withdraw life-sustaining treatment in the event  
of a terminal condition or permanent unconscious condition  
in a written declaration (the so-called "living will").   
The repeal would take effect on July 1, 2000.

The bill enacts the Health Care Decisions Law, which would  
provide for the creation, form, and revocation of advance  
health care directives, and for the manner of making health  
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care decisions for patients without surrogates.

  Senate Floor Amendments  of 8/30/99 add double jointing  
language.

Senate Floor Amendments of 9/1/99 add technical language to  
avoid chaptering out problems.

  ANALYSIS  :    Existing law provides for the creation of  
durable powers of attorney for health care.  A durable  
power of attorney is a designation, made in advance of  
incapacity by a competent person, of a person or persons  
who would make decisions regarding specified matters, among  
them health care decisions, that the person, if competent,  
could and would make.

The Natural Death Act   recognizes the right of a person to  
make a written declaration, in advance of incapacity to  
make health care decisions, instructing his or her  
physician to withhold or withdraw life-sustaining treatment  
in the event of a terminal condition or permanent  
unconscious condition if that person is unable to make  
those decisions for himself or herself.

This bill repeals the above statutes.

Existing case law has provided, on a case-by-case basis,  
guidelines for choosing who should make health care  
decisions for those who did not make advance directives,  
and how a surrogate chosen by the court or the family or  
the treating physicians ought to be guided in making those  
health care decisions.

This bill enacts the Health Care Decisions Law.

Specifically, this bill:

 1.Recasts and reorganizes provisions of the Natural Death  
   Act and durable powers of attorney for health care and  
   other related statutes.

 2.Specifies that an individual having capacity may give an  
   advance health care instruction, as defined and may  
   execute a power of attorney that defines what  







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   decisionmaking authority is granted and what limitations  
   there may be to such authority granted.

 3.Defines a legally sufficient health care directive,  
   specify 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.

 4.Specifies that an agent shall make a health care  
   decision in accordance with the principal's individual  
   health care instructions, if any, and other wishes to  
   the extent known to the agent, or otherwise in the best  
   interest of the principal, considering the principal's  
   personal values known to the agent.

 5.Specifies that the agent designated by such power of  
   attorney to make health care decisions who is known to  
   the health care provider to be available and willing to  
   make such decisions shall have priority over any other  
   person in making health care decisions for the  
   principal.

 6.Codifies a number of duties of health care providers and  
   institutions to comply with health care instructions and  
   to keep records relating to capacity determinations,  
   surrogates, and instructions.

 7.Continues existing limitations on the authority of  
   agents and the prohibition on mercy killing.

 8.Makes conforming changes in the procedure for obtaining  
   court authorization for medical treatment, clarifying  
   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.

 9.Makes conforming changes to conservatorship statutes  
   that govern health care decisions.

10.Unifies the standards governing health care  
   decisionmaking for adults without decisionmaking  
   capacity so that the same rules apply whether the  







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   surrogate decisionmaker is (a) an agent named in the  
   patient's advance directive, (b) a family member or  
   friend acting as a surrogate decisionmaker, (c) a public  
   guardian, or (d) a court making health care decisions as  
   a last resort.

This bill is double-jointed with AB 1677 (Assembly  
Committee on Consumer Protection)

 New Advance Health Care Directive:  Transitional Rules

  The bill provides a new Advance Health Care Directive form  
that would replace the current Statutory Form Durable Power  
of Attorney for Health Care in use since 1985 and the  
declaration under the Natural Death Act (commonly known as  
the "living will"] regarding withholding or withdrawal of  
life-sustaining treatment.

Under this bill, all valid advance health care directives  
executed before July 1, 2000 would remain valid.  The  
validity of durable powers of attorney for health care  
executed on a printed form that was valid under prior law  
would not be affected by this bill, whether or not the  
durable power of attorney was executed prior to or after  
July 1, 2000.

The Statutory Form provided in the bill would have four  
parts, and would provide an explanation of each part at the  
beginning of the form, as well as instructions on signing  
the form, acknowledgement by two witnesses or a notary  
public, and providing copies to the person's physician,  
health care providers, or other health care agents.

Part One of the form would designate the person's agent for  
making health care decisions, as well as alternates in the  
event the agent's authority is revoked or the agent is not  
willing to make the health care decisions authorized.  It  
would state any limitations to the health care decisions  
that the agent could make, the effective date of such  
authorization, enumerates the agent's obligations, and any  
authorizations to the agent for post-death anatomical  
gifts.  It would also allow the person to nominate a  
conservator, if one were needed.








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Part Two of the form would provide specific instructions  
regarding health care, e.g., choice not to prolong/prolong  
life, treatment for relief of pain, other wishes.

Part Three of the form would provide for donation of organs  
at death. This is an optional part, which, if the person  
leaves blank, would mean no anatomical gifts would be  
permitted.

Part Four of the form would be the designation of primary  
physician and alternates.

The bill requires either two witnesses to the signing of  
the Statutory Form, or an acknowledgement by a notary  
public.  A witness would be required to sign specific  
statements that (1) the person signing the Form appears to  
be of sound mind and not to be under duress, (2) the  
witness is not appointed as an agent by the directive, (3)  
the witness is not the person's health care provider or  
employee of the health care provider or of the residential  
care facility for the elderly where the person is residing.

In addition, at least one of the witnesses would be  
required to declare that he or she is not related to the  
person executing the directive by blood or marriage or  
adoption, and would not be entitled to receive any part of  
the person's estate upon his or her death under an existing  
will or by operation of law.

For those persons who are patients in a skilled nursing  
facility, the facility's patient advocate or ombudsman who  
would witness the Statutory Form would be required to sign  
a statement that he or she is a patient advocate or  
ombudsman as designated by the State Department of Aging.

These requirements for witness statements parallel what is  
currently in Probate Code Section 4771 (Statutory Form  
Durable Power of Attorney for Health Care).

  Health Care Surrogates

  In the absence of an advance health care directive or an  
executed durable power of attorney for health care  
appointing an agent, this bill would allow a patient to  







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designate an adult as a surrogate to make health care  
decisions, by personally informing the supervising health  
care provider.  If the designation is made orally, that  
designation must be promptly recorded in the patient's  
health care recorded and the designation is good only  
during the course of treatment or illness or during the  
stay in the health care facility when the designation was  
made.

The surrogate appointed by the patient in this case would  
be required to make health care decisions in accordance  
with the patient's individual health care instructions, if  
known, and other wishes known to the surrogate.  Otherwise,  
the surrogate would be bound to make these decisions on the  
basis of the patient's best interest, considering the  
patient's personal values known to the surrogate.

This provision would, proponents state, ensure that as much  
as possible the incapacitated patient's desires and values  
are considered.

In addition, this bill would allow a patient with capacity  
to disqualify another person, including a member of the  
patient's family, from acting as a surrogate by a signed  
writing or by personally informing the supervising health  
care provider of the disqualification.  Again, this would  
extend the goal of fulfilling the wishes of the patient,  
including removing those who might not be in the patient's  
good graces at the time, from any position of making health  
care decisions.

  Codifying Health Care Provider Duties and Responsibilities;  
Recordkeeping

  This bill codifies rules and practices currently followed  
by health care providers relating to health care decisions  
and recordkeeping of advance health care directives, agent  
designations, surrogate disqualifications, patient capacity  
recoveries, power of attorney revocations and other  
relevant observations or information.

It also requires health care providers to comply with  
patients' health care instruction with reasonable  
interpretation of that instruction by the patient's  







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designated agent, and to comply with a health care decision  
made by the patient's authorized agent as if the decision  
was made by the patient while having capacity.

A health care provider could decline to comply only for  
reasons of conscience, and a health care institution could  
decline to comply only if the instruction or decision is  
contrary to the institution's expressed policy and if the  
policy was timely communicated to the patient or the person  
authorized to make the health care decision for the  
patient.

  New Civil Liability

  Under this bill, a health care provider or institution that  
intentionally violates the Uniform Health Care Decisions  
Act would be subject to liability to an aggrieved person  
for damages of $2,500 or actual damages resulting from the  
violation, whichever is greater, plus attorney's fees.  It  
is not clear who an "aggrieved person" may be.  The person  
could be the patient himself or herself, or the agent, or  
any other surrogate or surrogates.

In addition, the bill provides that these damages are  
cumulative and not exclusive of any other remedies provided  
by law.  Thus, a whole family of 10 aggrieved by the health  
provider's intentional violation could, under this bill,  
each sue for $2,500 and then sue again for something like  
"intentional infliction of emotional distress" damages.

The bill also subjects anyone who intentionally falsifies,  
forges, conceals, alters, obliterates, or defaces an  
individual's health care directive without the individual's  
consent, or who fraudulently induces such individual to  
give, revoke, or not to give an advance health care  
directive, to damages of $10,000 or actual damages  
resulting from the action, whichever is greater, plus  
reasonable attorney's fees.  These damages are cumulative  
and not exclusive of any other remedies provided by law.  
  
  The Court as Surrogate

  The bill continues existing law relating to the court's  
role as health care decisionmaker, in the absence of  







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surrogates, or in petitions filed in the event of a dispute  
about the health care decision made by a person with a  
durable power of attorney, or the authority of an attorney  
in fact under such durable power of attorney.

  Background

  The California Law Revision Commission is the sponsor of  
this bill.  Because there is no existing statutory law that  
provides general rules governing decisionmaking relative to  
medical treatment of incapacitated persons, the medical  
profession and the bar have crafted guidelines now widely  
used in the state.  However, recent case law resulting from  
the application of those guidelines has brought to light  
the obvious need to create uniform statutory rules for  
determining succession to decisionmaking in the case of the  
incapacitated person, especially one who has no appointed  
surrogate.

The provisions of the proposed Health Care Decisions Law  
(HCDL) are drawn heavily from the Uniform Health Care  
Decisions Act (1993), and implements major parts of the  
Commission's recommendation on  Health Care Decisions for  
Adults Without Decisionmaking Capacity  .  The new HCDL  
consolidates the Natural Death Act and the durable power of  
attorney for health care in a simplified and reorganized  
statute.  It includes new rules governing individual health  
care instructions, and provides a new optional statutory  
form of an advance health care directive.  
  
  FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
Local:  Yes

  SUPPORT  :   (Verified  9/2/99)

California Law Revision Commission (source)
California Medical Association
California Association of Catholic Hospitals
California Catholic Conference
California Health Care Association

  ARGUMENTS IN SUPPORT  :    The California Law Revision  
Commission states:








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"The guiding principle of the bill is to effectuate the  
stated desires of the patient, as set out in an advance  
directive or, in the absence of a directive, as made known  
to the surrogate decisionmaker.  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 decisionmaker, taking into  
account the patient's personal values known to the  
surrogate.  The Health Care Decision Law is intended to  
fulfill the incapacitated patient's desires and best  
interest without resort to judicial proceedings, except as  
a last resort.

"The bill also codifies a number of duties of health care  
providers and institutions to comply with health care  
instructions, and to keep records relating to capacity  
determinations, surrogates, and instructions.

"In addition, existing limitations on the authority of  
agents and the prohibition of mercy killing and euthanasia,  
are continued in the new law.

"Conforming changes in the procedure for obtaining court  
authorization 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."


  ASSEMBLY FLOOR  : 
AYES:  Aanestad, Ackerman, Alquist, Aroner, Bock, Calderon,  
  Cardenas, Cardoza, Cedillo, Corbett, Correa, Cox,  
  Cunneen, Davis, Dickerson, Ducheny, Dutra, Firebaugh,  
  Florez, Floyd, Frusetta, Gallegos, Granlund, Havice,  
  Hertzberg, Honda, Jackson, Keeley, Knox, Kuehl, Lempert,  
  Longville, Lowenthal, Machado, Maddox, Maldonado,  
  Mazzoni, Migden, Nakano, Olberg, Oller, Robert Pacheco,  
  Rod Pacheco, Papan, Reyes, Romero, Scott, Shelley, Soto,  
  Steinberg, Strom-Martin, Thomson, Torlakson, Vincent,  
  Washington, Wayne, Wesson, Wiggins, Wildman, Wright,  







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  Zettel, Villaraigosa
NOES:  Ashburn, Baldwin, Bates, Battin, Baugh, Briggs,  
  Campbell, House, Kaloogian, Leach, Leonard, Margett,  
  McClintock, Pescetti, Runner, Strickland, Thompson
NOT VOTING:  Brewer


RJG:cm  9/2/99   Senate Floor Analyses 

               SUPPORT/OPPOSITION:  SEE ABOVE

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