New Surrogate Decision Maker Law – How’s It Working for You?

 By Jennifer Moore Ballentine, MA, CEO

Revised May 16, 2023

CCCC is closely watching a number of current bills to ensure that they are aligned with preserving patient self-determination and supporting palliative care. A bill that was passed last year, however, has prompted some queries to our office, so I thought it would be worthwhile to offer a refresher and some commentary. 

AB 2338 was approved by the Governor in September 2022, went into effect on January 1, 2023, and is now incorporated into the Probate Code, Division 4.7 Health Care Decisions, Part 2 Uniform Health Care Decisions Act, Chapter 3 Health Care Surrogates.

The bill did two things: 

  1. It formalized and provided a documentary process for verbally designated surrogate decision makers by patients with capacity. The patient informs their provider or facility about their choice of decision maker, and their choice is documented in the person’s medical record.
    • Example A: Jacinda is in a car wreck and she is badly injured and will need major surgery, possibly an amputation. As she’s wheeled into the ER, she points to her brother, who was in the car with her but is uninjured, and says, “Beau, talk to Beau, he can speak for me.” Despite her injuries, she is alert and oriented in all spheres at that time, and her physicians assess her as having decisional capacity. Her medical record indicates her husband is her official healthcare agent, but he is out of the country on business.
    • Example B: Frank is 85 and has been living at home with his wife, who is 80. After a bad bout of pneumonia, which landed him in the ICU, he’s admitted to rehab. He is assessed as having mild short-term memory problems, but his attending physician determines that Frank has the capacity to make medical decisions.  When the admissions nurse asks him for his healthcare agent/decision maker in the event he loses capacity, he says, “My wife isn’t well. My daughter has been taking care of me. Talk to Melissa.” 

    Beau and Melissa are now legally authorized decision makers for Jacinda and Frank, respectively. Two important points to note here!
  • This authority is only granted for a limited time period under Probate Code §4711: for the “course of treatment or illness or during the stay in the health care institution . . ., or 60 days, whichever period is shorter” AND 
  • During that period, the authority of the verbally designated surrogate takes priority over any formally appointed medical power of attorney or conservator or guardian who otherwise would have authority to make healthcare decisions for the patient. This means that if Jacinda’s husband gets back to town while she’s still in the hospital and disagrees with decisions Beau is making or insists that he should be making the decisions, the law says Beau has priority for the specified time period.

So, let’s say Jacinda and Frank both recover well and are discharged to home before the 60 days are up. Jacinda’s husband’s authority as her healthcare agent resumes, but Frank now does not have a legally authorized decision maker. At this point, it would certainly behoove Frank to get Melissa officially appointed as his healthcare agent.

Let’s say that Frank decides to complete a POLST, with Melissa’s help, while he is in the rehab facility. Under Part D of the POLST form, Melissa counts as a “Legally Recognized Decisionmaker” with whom the POLST has been discussed. She does not, however, count as a “Health Care Agent.”

2. The law also set up a formal process for identifying a surrogate decision maker for incapacitated patients who have not previously appointed an agent. In this case, the law allows “a health care provider or a designee of the health care facility caring for the patient” to choose a surrogate decision maker from among any of a specified group: (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. Several important points here too!

  • The choices are NOT prioritized – unlike in some other jurisdictions, the spouse does not automatically get precedence over the adult child or close friend; the parent does not automatically get precedence over the sibling or child, etc.
  • The choice should be guided by certain features exhibited by the person: They 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 ongoing authority of a surrogate chosen in this manner by the provider or facility designee is unfortunately not clearly stated. The law does not describe any kind of mechanism for communicating this selection of a surrogate to an external provider or facility, or in any way that would be obvious in the community. It may be up to the selected surrogate to assert their selection to the next provider or during the next episode of care.

To continue with our examples, let’s say Frank develops severe COPD, and enrolls in home-based palliative care. Over time, between the oxygen dependency/deficiency and the medications he needs to stay comfortable, he loses capacity to make his own healthcare decisions. And he never got around to appointing Melissa as his medical power of attorney.

She’s been very involved in his care, so the hospice medical director has no problem choosing her as his surrogate. But Frank’s wife is a little fed up with Melissa and asserts herself as Frank’s surrogate, saying that Melissa isn’t caring for him or making decisions in the way he would have preferred. There’s nothing official, other than Frank’s medical record at the nursing facility, to affirm Melissa’s surrogate role.  Likewise, let’s say after a few weeks of caring for her dad, Melissa is burned out, feels she really can’t cope anymore, and has to get back to her life. The hospice medical director would have to pick a new surrogate from the list of candidates; the only guidance available is to (again) choose the person who “demonstrates “special care and concern, is familiar with the patient’s personal values, . . . and is reasonably available and willing to serve.” 

Now, potentially this puts a lot of responsibility – and power – on the physician in ways that may seem more paternalistic than intended. And it’s worth remembering that there is no obligation to choose a decision maker – only that they may make such a choice. 

A recommendation would be to strive for consensus among any and all available “interested persons” so that the choice of decision maker is not unilateral but supported by those who care for and about the patient. When that’s not possible – because consensus can’t be reached or there aren’t any choices between two that may be in conflict – an ethics consultation can be an extremely helpful step. In the unlikely event that the conflict is unreconcilable, the court is an option of last resort. This is rare, I’m told. A CCCC board member and longtime SNF and hospice medical director, Dr. Karl Steinberg, assures me, “In a great majority of clinical scenarios, there is no significant conflict, and it is not difficult to determine who is best situated to serve as the patient's decision-maker.”  

So, I’m curious – how is this working for you all in the real world?

Here’s a one-page summary of the amendment and this commentary. I hope this is helpful.


Note: A previous version of this blog stated that the surrogate selected by the physician or facility to serve would also be term limited to the episode of care, stay in the facility, or 60 days, whichever is shorter. This was an error.