California’s Next-Of-Kin Laws Can Create Problems

We tend to think of an estate plan as something you draw up and draft, in anticipation of whenever it is that you pass away. But estate plans aren’t just about death—they also help you plan for the contingency that you may be alive, but in no state to manage your affairs, or make crucial decisions about your life because of your medical condition, illness, or accident.

Making Medical Decisions

This becomes especially important, in the event that you are not conscious or competent enough to make your own medical decisions, or to communicate with doctors. If that happens, the hospital or doctors need to have someone who is your “go to,” and who will speak for, on behalf of, and make decisions for you when you cannot do those things yourself.

The best way to do this is through drafting a Health Care Directive, which will, among other things, name a health care agent or surrogate. That person will then speak on your behalf to medical professionals and make the crucial medical decisions that you would not be able to make in your condition.

No Directive or Estate Plan?

But what if you don’t have a health care directive? You may have multiple family members at your side, but the doctors need to have one point of contact, one person who the doctors know speaks for and on your behalf.

If you have no health care directive or other estate document that deals with this contingency, then the hospital will default to California’s next-of-kin law. The law says that in the absence of any document that says otherwise, that the hospital is supposed to choose whomever it is that seems to be the most involved in the patient’s care, and whomever is most familiar with the patient’s moral, ethical, medical, and social affairs and concerns.

The hospital also must take into account how closely each person being considered for the role is to you, and the hospital does not necessarily have to choose a family member—it can choose a friend, if that person seems to fit the requirements.

Potential Problems and Conflict

You can see the problems that this can cause.

The hospital doesn’t know your family or your friends, or your history with any of them. The doctors have a million things to do, and conducting a social analysis of each friend and family member to see who best fits the role, is just not something they have the time or are equipped to do.

Family members closest to you (your closest relatives) may just be picked automatically by doctors —even though they may not be the people you would choose to make your medical decisions.

This can even open the door to fighting. It’s one thing if you choose a friend to make medical decisions for you over a family member. But if the hospital or doctor makes that choice, there is going to be conflict, argument, and debate—as well as possible hostility.

Avoid these problems and make an estate plan that addresses all these possibilities. Call the Torrance probate will and estate attorneys at Samuel Ford Law today.

Sources:

californiahealthline.org/news/article/california-requires-hospitals-consult-next-of-kin/?fbclid=IwAR35OyJqfk8a8UfpGoMO23H7ph9ibMYXS0sZ722K3pipf9lLippVG_TRfb8

findlaw.com/legalblogs/estate-planning/do-hospitals-have-to-consult-with-next-of-kin/#:~:text=For%20example%2C%20in%20the%20new,domestic%20partner%20of%20the%20patient