New law authorizes doctors and health care facilities to designate a surrogate for incapacitated patients

Assembly Bill 2338 became law in 2022, effective as of January 1, 2023. The act added a new section 4712 to the California Probate Code and amended section 4711 of the Code. Former law authorized a patient to designate a "surrogate" to make health care decisions on his behalf during a course of treatment in a health care facility by informing his supervising health care provider of his decision. AB 2338 amended section 4711 to additionally designate a "surrogate" by informing "a designee of the health care facility caring for the patient". New Section 4712 sets out the order of priority of health care decision makers if a patient lacks capacity to make health care decisions. The order of priority is:

(1) The patient’s surrogate selected pursuant to Section 4711.

(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.

If the patient has not named any decisionmaker listed above, the new law authorizes a health care provider or a designee of the health care facility caring for the patient to name a surrogate to make health care decisions on the patient’s behalf. Patients should be aware of this new law which creates easier methods for a health care provider or facility to designate a surrogate decisionmaker for a patient who loses capacity. Although this facilitates the health care providers having a single decisionmaker, patients are well advised to plan far in advance of any illness or hospital admission by executing an Advance Health Care Directive or a Power of Attorney for Health Care when executing other estate planning documents and by reviewing existing health care directives prior to surgeries or other planned procedures.