BILL ANALYSIS
AB 891
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 891 (Alquist)
As Amended September 1, 1999
Majority vote
ASSEMBLY: 62-17 (June 1, 1999)
SENATE: 24-13 (September 7, 1999)
Original Committee Reference: JUD.
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) 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;
b) 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; and,
c) Clarifies that the principal (patient) in a PAHC may
grant authority to make decisions relating to the personal
care of the patient, including, but not limited to,
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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. Specifies that the primary physician is to
make these capacity determinations unless otherwise specified
in 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
patient. In determining the patient's best interest, the
surrogate shall consider the patient's personal values to the
extent known to the surrogate.
The Senate amendments :
1)Require a surrogate (including a person acting as a
surrogate), who has been designated by a patient in the
absence of an advance health care directive or a power of
attorney for health care, 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 must make these decisions
in accordance with the surrogate's determination of the
patient's best interest, considering the patient's personal
values to the extent known to the surrogate.
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2)Require a health care provider to promptly record in the
patient's health care record any oral designation by the
patient of a surrogate.
3)Allow a patient with capacity at any time to disqualify
another person, including a member of the patient's family,
from acting as the patient's surrogate by either a signed
writing or by personally informing the supervising health care
provider of the disqualification.
4)Add a provision from existing law which specifies that if the
principal becomes wholly or partially incapacitated, or if
there is a question concerning the capacity of the principal,
the agent may consult with a person previously designated by
the principal for this purpose, and may also consult with and
obtain information needed to carry out the agent's duties from
the principal's spouse, physician, attorney, a member of the
principal's family, or other person, including a business
entity or government agency, with respect to matters covered
by the power of attorney for health care. Also, a person from
whom information is requested shall disclose relevant
information to the agent. In addition, disclosure under this
provision is not a waiver of any privilege that may apply to
the information disclosed.
5)Make technical changes and add double-joining language with AB
1677.
AS PASSED BY THE ASSEMBLY , the bill streamlined and updated the
provisions governing health care decisions for adults without
decisionmaking capacity, absent the above changes adopted in the
Senate.
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
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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.
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334
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