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California Law Revision Commission

-- Last revised 3/29/11 --

Health Care Decisions for Adults Without Decisionmaking Capacity - Study L-4000

   The Commission's recommendation proposes a new Health Care Decisions Law to consolidate the Natural Death Act and the statutes governing the durable power of attorney for health care, and provide comprehensive rules relating to health care decisionmaking for incapacitated adults. The proposed law, drawing heavily from the Uniform Health-Care Decisions Act (1993), includes new rules governing individual health care instructions, and provides a new optional statutory form of an advance health care directive.
   The guiding principle of the bill enacting the Commission's recommendation is to effectuate the stated desires of the patient, as set out in an advance directive or, in the absence of an advance directive, as expressed 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 decisionmaker, taking into account the patient's personal values known to the surrogate. The Health Care Decisions 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, witnessing requirements, and the prohibition on mercy killing and euthanasia, are continued in the new law.
   Conforming changes in the procedure for obtaining court authorization for medical treatment 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 bill unifies the standards governing health care decisionmaking for adults without decisionmaking capacity so that the same rules apply whether the surrogate decisionmaker is (1) an agent named in the patient's advance directive, (2) a family member or friend acting as a surrogate decisionmaker, (3) a public guardian, or (4) a court making health care decisions as a last resort.
   The Commission's original recommendation, which is embodied in the bill as introduced, included two important additional elements: (1) a "family consent" statute (proposed Prob. Code § 4710 et seq.), and (2) a surrogate committee procedure for making necessary health care decisions where the patient does not have an agent, conservator, or other health care surrogate (proposed Prob. Code § 4720 et seq. ). At the suggestion of the Assembly Judiciary Committee staff, the Commission agreed to remove these procedures for additional study.
    If you have questions or comments on this study, send an e-mail to Brian Hebert at

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