Who Makes Medical Decisions If I Become Incapacitated?

Accidents, sudden illnesses, and degenerative conditions occur without warning. If an unexpected event leaves you unable to communicate, doctors and hospitals must look to someone else to make critical medical choices on your behalf. If they pick someone you do not trust and you do not have an estate plan, there is very little you can do once you are considered legally incapacitated.

What Happens to My Healthcare If I Lack an Estate Plan?

If you are in a severe car accident or suffer a sudden illness, hospitals will consult your closest biological relatives or your legal spouse for major decisions. Additionally, California hospitals and medical providers will typically rely on your legal and biological relatives to make those decisions, even if you are estranged from them and would prefer an unmarried romantic partner or a member of your chosen family to make those decisions for you.

Without the right documents on file, your unmarried partner could be barred from your hospital room completely while estranged parents or siblings make important decisions about your medical care.

What Documents Protect My Medical Autonomy?

To ensure the correct person makes decisions on your behalf, you must execute specific legal documents, which are typically part of a comprehensive estate plan. To fully protect your autonomy, you should execute the following documents:

• Advance Health Care Directives allow you to name a healthcare agent to make decisions for you. You can also state your wishes regarding life support and medical intervention if you are unable to speak for yourself.
• Durable Powers of Attorney allow you to choose someone who can “step into your shoes”, which allows them to pay your bills, manage investments, and handle miscellaneous legal and financial duties if you cannot do it yourself.
• HIPAA Authorizations give doctors, hospitals, pharmacies, insurers, HMOs, and healthcare data processors permission to speak to designated people about your health and related issues.

Why Do Unmarried Couples Need Medical Planning in California?

California law generally gives zero legal recognition to unmarried romantic partners. This holds even if you personally considered each other to be married, spent decades of your lives together, or owned retirement accounts and a home together. As a result, your unmarried partner is likely to be completely frozen out of the decision-making process if you are incapacitated and do not have an up-to-date estate plan. Instead, the decision will typically be made by the closest available biological and legal relatives, even if you do not trust them or would prefer someone else to make those decisions for you.

By executing important legal documents such as an Advance Health Care Directive, you can avoid California’s default rules and choose who you want to make important decisions for you. You can also leave specific instructions for them to follow, so they are not left guessing as to what your wishes and desires are.

Frequently Asked Questions (FAQs) About California’s Medical Decision Laws

Can an unmarried partner be considered “next of kin” for decision-making purposes?

Under California law, the term “next of kin” is limited to individuals related to you biologically or by operation of law (e.g., marriage or adoption). If you were never legally married, then your partner cannot legally act as your next of kin in a medical emergency. If a medical emergency happens and you do not have an estate plan, the hospital will typically look for your closest legal and biological relatives and follow their instructions.

What legal documents can protect my unmarried partner if they are in a medical crisis?

To protect your partner during a medical emergency, you need an Advance Health Care Directive, a HIPAA Authorization form, and a Durable Power of Attorney. These documents give your partner the legal authority to talk to your doctors, make medical decisions, and manage your finances if you are incapacitated.

Can my common-law spouse make legal decisions for me if I am incapacitated?

Under California’s default rules, a common-law spouse has no automatic right to make legal decisions for you. In fact, California law does not recognize common-law marriages unless the marriage was created in a state that does recognize them before you moved to California. That is an incredibly rare exception, and it can be difficult to prove in court.

Can I name multiple people to act as co-agents for my healthcare?

While you might want to name all of your children or trusted friends together, the Kushner Legal team generally advises against appointing co-agents for medical decisions.

In a medical emergency, decisions are often time-sensitive and involve weighing multiple risks against one another. If you require multiple agents to agree on a treatment plan, differing opinions or one person being out of town can severely delay your care. Instead of creating a committee, you should name one primary agent and list secondary alternates to step in if your first choice is unavailable or unwilling to act. This gives your first choice the ability to take command, while also having alternatives in place if necessary.

How does a doctor legally determine that I am incapacitated?

Incapacity is officially determined when a physician examines you and concludes that you lack the mental ability to understand the consequences of proposed medical treatments or can no longer communicate your own decisions. Once this finding is placed in your medical records, your designated healthcare agent assumes the authority to act on your behalf.

Contact Kushner Legal to Create a Customized Estate Plan Today

At Kushner Legal, our Beverly Hills estate planning attorneys and West Hollywood estate planning attorneys understand that California’s default rules rarely match the desires of those who have significant personal relationships and a large chosen family. Our team has many years of experience helping people create estate and contingency plans that match their personal wishes and desires.

Contact our legal team today to schedule a consultation.