Why you shouldn’t rely on California’s “next-of-kin” law

On Behalf of | Jun 3, 2024 | Estate Planning

One of the first and most important estate planning documents that California adults should put in place is an advance directive for health care. This allows you to state your preferences for things like what kind of life-prolonging measures you want to continue under various circumstances – such as if there’s no chance of regaining consciousness. 

This document, and a designated health care agent with power of attorney (POA) to talk with your medical team and advocate for your stated wishes if you’re not able to, is something you could potentially need at any stage of your life if you suffer a serious injury or illness.

Too many people assume that they don’t need to take these measures because their loved ones will know what they want and do what’s best if something catastrophic should befall them. They may even know that California has a “next-of-kin” law that requires hospitals to name a health care surrogate if a patient needs one and doesn’t have these legal documents in place (or they’re unaware that they do).

What the law requires – and why it may not be sufficient

If a patient who’s in a coma or otherwise able to communicate has no advance directive and/or health care agent, a hospital must make a list of people who seem to be closest to them. This typically includes any spouses or partners, parents and adult children or grandchildren. If none of these is available, the list may include a close friend or emergency contact.

Specifically, the law states, “The patient’s surrogate shall 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.”

Of course, a family member may be close biologically but not part of a patient’s life. They might have no idea what they would want. If no family can be located, decisions could end up being made by an acquaintance who has been at their bedside.

These are just two potential reasons why this is too important to leave to chance. You can also see why it’s crucial not just to put the appropriate documents in place but to be sure that they’re easily accessible by the right people or facilities. With sound legal guidance, you can help ensure that you will never have to rely on a “next-of-kin” law.



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