We’ve talked here before about the importance of putting an advance health care directive in place and naming a health care agent as part of your estate planning. This can help ensure that your wishes for end-of-life care are known and followed if you suffer a catastrophic injury or illness and can’t communicate them.
Naming a trusted person and at least one alternate to act as your health care agent and have power of attorney (POA) to make medical decisions can be crucial to minimizing conflict among family members. That’s because you’ve already designated who should have the final say.
If you don’t have an advance directive and health care agent, what happens if you end up in the hospital on life support or in a coma? California, like a number of states, has what’s called a “next-of-kin” law.
How the next-of-kin law works
This law requires hospitals to choose a “surrogate” if a patient doesn’t have an advance directive and designated health care agent (or they can’t be located) when treatment or end-of-life decisions need to be made.
First, they need to make a list of the patient’s relatives:
- Spouse or domestic partner
- Adult children
- Parents
- Adult siblings
- Adult grandchildren
- Parents
- Other adult relative or “close personal friend”
The hospital isn’t required to choose the person with the closest familial relationship. The law states that they need to choose someone 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.”
Putting this decision in the hands of hospital personnel could cause family conflict or possibly leave you with someone making life-or-death decisions who barely knows you, but happens to be with you when you’re hospitalized. Further, with no directive to refer to, they may have no idea what your wishes are.
Make sure your directive is accessible if needed
Putting your directive in place and designating the right agent (with their consent) are crucial. However, it’s also crucial to make sure the right parties have access to your documents. Many health care systems allow people to upload them so they’re available if needed. Your agent (and alternates) should have copies as well.
Some people find creating an advance health care directive one of the most difficult parts of estate planning because it requires them to think about under what conditions they do and don’t want to remain alive. However, doing so, with the right estate planning guidance, benefits you and your loved ones.