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

On Behalf of | Feb 16, 2024

If you’re one of the many Californians who doesn’t have an estate plan because you assume you’ve still got “plenty of time” before you need to decide who will inherit your assets, it’s important to remember that estate planning is about more than what happens after you’re gone.

For example, a comprehensive estate plan should include your wishes for who will manage your medical care if you become seriously injured or ill. It should also include an advance directive for health care that details your wishes for things like what life-prolonging measures you want (or don’t want) taken and under what circumstances.

People often don’t worry about that – especially if they know that California has a “next-of-kin” law that requires medical facilities to designate a surrogate for patients who can’t speak for themselves. Let’s take a brief look at that law and why it may not ensure that the right person is advocating for you.

How does the next-of-kin law work?

This law is used only for those with no advance directive or health care agent (or none that can be located). When that’s the case, the hospital must choose a surrogate from a list of people presumed to be closest to the patient.

Generally, the list includes spouses and long-term partners, parents, siblings and adult children. It could also include close friends. The law requires that the surrogate “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.”

What could go wrong?

A lot could go wrong. If your close family can’t be reached or the hospital doesn’t know who they are, the staff could designate whatever relative they can reach or lives nearby.

If they can’t find any relatives, they may turn to a friend or acquaintance who brought you in and appears to have “demonstrated special care and concern” for you. However, they may have no idea what you would want.

You can avoid this scenario by having an advance directive and designated health care agent with power of attorney and by making sure your primary care physician and your agent have copies of the appropriate documents. It’s smart to keep them on your phone or with your travel documents like your passport if you’re traveling.

There’s a lot more to learn. A good first step is getting experienced legal guidance.