Trusts and Estates
Legislation Alert: AB 2338
By Kimberly R. McGhee
Black & McGhee
Headnote: Designation of Health Care Decisionmakers and Surrogates
Summary: Assembly Bill 2338, passed in 2022, and effective January 1, 2023, confirms the order of priority for health care decisionmakers and authorizes a health care provider or designee of a health care facility caring for the patient to choose a health care decisionmaker for a patient who lacks capacity and has no legally authorized decisionmaker.
Assembly Bill 2338 added a new section 4712 to the California Probate Code. This bill provides an order of priority for a decisionmaker if a patient lacks capacity to make health care decisions. Specifically, if a patient lacks capacity the following legally recognized health care decisionmakers may make health care decisions on the patient’s behalf, in the following descending order of priority:
(1) The surrogate designated by the patient pursuant to Section 4711 when they had capacity.
(2) The patient’s agent pursuant to an advance health care directive or a power of attorney for health care.
(3) The conservator or guardian of the patient having the authority to make health care decisions for the patient.
The bill then provides that if a patient lacks the capacity to make a health care decision and does not have a legally recognized health care decisionmaker, then a health care provider or designee of a health care facility caring for the patient may choose a health care decisionmaker on the patient’s behalf. The patient’s surrogate must be an adult who has demonstrated special care and concern for the patient, is familiar with the patient’s personal values and beliefs to the extent known, and is reasonably available and willing to serve.
The patient’s surrogate may be chosen from any of the following persons:
(1) The spouse or domestic partner of the patient.
(2) An adult child of the patient.
(3) A parent of the patient.
(4) An adult sibling of the patient.
(5) An adult grandchild of the patient.
(6) An adult relative or close personal friend.