Who can make health care decisions for you if you are in an accident or suddenly incapacitated? You might think the logical choice is for doctors to contact your family, but are hospitals required to notify and consult with immediate family members (next of kin) before they administer any treatments?
What Is a Next-of-Kin Statute?
Most states have next-of-kin statutes, which means health care professionals must consult with immediate family members about a patient if they cannot speak for themselves. If a patient is unconscious and does not have a health care directive in place, the hospital may consult with:
A spouse or domestic partner
An adult sibling
An adult child or adult grandchild
A parent
Other adult relatives
Some state laws include adult relatives or close friends. However, due to increased HIPAA privacy laws, even next-of-kin may be unable to get patient information or make treatment decisions without a health care directive in place.
What Happens in States Without Next-of-Kin Statutes?
Those states without next-of-kin statutes do not have to consider family members’ wishes for an incapacitated patient’s treatment. So, for example, if a patient was unconscious and on a ventilator, a hospital could decide to remove it, even if the family wanted to continue life support.
California was one such state, until a next-of-kin statute went into effect on Jan. 1, 2023. Before that, if a patient did not have a health care directive or health care power of attorney, the hospitals could make medical decisions for the patient, even if the family members opposed it.
If My State Has a Next-of-Kin Statute, Why Do I Need a Health Care Surrogate?
Many people assume they don’t need a health care directive or health care surrogate if they have family members around. But you cannot control which family members will make your health care decisions if you don’t have this document in your estate plan.
For example, in the new legislation passed by California, a medical facility can choose the person to make health care decisions. First, they check for a health care directive or health care surrogate, and if they don’t find one, they may choose from any of the following:
The spouse or domestic partner of the patient
An adult child or adult grandchild
A parent or adult sibling
Another adult relative or close personal friend
That list is not in order of priority, so a medical professional may follow a parent’s wishes over a spouse’s or domestic partner’s.
Furthermore, some state statutes only allow married spouses or blood relatives to discuss your medical condition and weigh in on medical decisions. So if you have lived with your unmarried partner for 20 years, they may not have a say in your health care treatments.
What Is a Health Care Directive?
Even though health care directives are critical if you can’t make your own medical decisions, only one-third of U.S. adults have health care directives, also known as an advance medical directive, advance health care directive, advance directive, or living will. A health care directive puts you in charge of your medical care, even when you cannot communicate your wishes. Within a health care directive, you can do the following:
Name someone as your health care agent or health care surrogate
Leave instructions on what life-sustaining treatments you want or don’t want
Your health care surrogate gets information on your condition, has access to medical records, makes decisions in your best interest, and communicates with your family. They may also make arrangements for a nursing home or long-term care facility. With a health care directive in place, you can:
Make your wishes known, making it easier for your loved ones in the decision-making process. Instead of deciding (and arguing) about what you want, they can take consolation in honoring your instructions.
Naming one loved one as the decision maker avoids conflicting instructions to health care providers.
Hospitals can refuse to discuss medical information with family or loved ones without a health care directive or HIPAA form.
Absent any medical directives, medical professionals must take heroic measures to prolong life. For example, if an 88-year-old woman with end-stage Alzheimer’s has a heart attack, they may try to resuscitate her. If you don’t want this, you can put it in your health care directive.
You can include your wishes for treatment and life-sustaining interventions, pain and comfort medication, religious preferences, body disposition, end-of-life decisions, and organ donation.
A Health Care Directive Is an Important Part of Your Estate Plan
Many people know a will is helpful for your loved ones when you die. However, a health care directive is a critical component of your estate plan or advance care planning while you are alive. When creating your estate plan, consider adding a health care directive so your family and friends can fulfill your wishes for medical treatment and end-of-life care.
Related Resources:
Living Wills & Health Care Directives (FindLaw’s Learn About the Law)
Unmarried Partners, Medical Directives and the Durable Power of Attorney for Finances (FindLaw’s Learn About the Law)
Do It Yourself Estate Planning (FindLaw’s Legal Forms & Services)
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