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California Law Revision Commission

-- Last revised 01/23/24 --

Health Care Decisions Law: Miscellaneous Revisions - Study L-4004

The Commission recommended a number of minor substantive and technical revisions as a follow-up to the Health Care Decisions Law (Prob. Code §§ 4600-4805), which was enacted in 1999 on Commission recommendation:

Liability for Funeral Expenses. Health and Safety Code Section 7100 was amended in 1998 to give health care agents the top priority in controlling disposition of the decedent's remains, but the section also appears to make the agent automatically liable for funeral expenses. AB 1278 would eliminate automatic liability, and limit the agent's liability to situations where the agent agrees to assume liability or where the agent makes decisions resulting in costs that cannot be paid out of the decedent's estate under other law.

Capacity Standard. The bill would generalize the capacity definition in the Health Care Decisions Law to apply to the execution and revocation of advance directives.

Effect of Naming Surrogate. The bill would make clear that a patient's designation of a surrogate health care decisionmaker by direct communication to the supervising health care provider would not revoke a prior designation of an agent made in a power of attorney for health care, unless the patient also expresses the intention to remove the agent.

Duration of Surrogate Designation. The duration of an informal surrogate designation under the statute would be limited to a 60-day maximum, but expiration of the designation would not affect health care decisionmaking under other law or standards of practice. Grounds for Court Petition. The grounds for petitioning the court under the Probate Code would be amended to include a petition to compel a third person to honor the authority of a health care agent or surrogate. This is consistent with the treatment of powers of attorney for financial matters.

Limitations on Health Care Agents. The rules limiting who can act as an agent would be amended to make clear that a supervising health care provider can never act as agent for his or her patient, even if related to the patient by blood, marriage, adoption, or registered domestic partnership, or even if they are coworkers. This does not prevent the named person from acting as agent as long as he or she does not continue to act as the patient's supervising health care provider.

The Commission also recommended other technical conforming revisions. The Commission's recommendation was enacted by the Legislature. See below.

Related Material


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Final Recommendation

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Tentative Recommendations and Other Requests for Comment

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Staff Memoranda

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