Legal Definition
(a) If a patient lacks the capacity to make a health care decision, the following legally recognized health care decisionmakers may make health care decisions on the patient’s behalf, in the following descending order of priority:
(1) The patient’s surrogate selected pursuant to Section 4711.
(2) The patient’s agent pursuant to an advance health care directive or a power of attorney for health care.
(3) The conservator or guardian of the patient having the authority to make health care decisions for the patient.
(b) Except as set forth in Section 4715, if a patient lacks the capacity to make a health care decision, but does not have a legally recognized health care decisionmaker pursuant to subdivision (a), a health care provider or a designee of the health care facility caring for the patient may choose a surrogate to make health care decisions on the patient’s behalf, as appropriate in the given situation. The patient’s surrogate shall 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. A surrogate may be chosen from any of the following persons:
(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.
Basic Definition
Section 4712: Defines the hierarchy of legally recognized health care decision-makers for a patient who lacks capacity.
In-Depth Overview and Use Cases
This section specifies the order of priority for legally recognized health care decision-makers when a patient is unable to make their own health care decisions. It prioritizes surrogates selected under Section 4711, agents named in an advance directive, or guardians. If none are present, a health care provider may appoint a surrogate who has shown care and is familiar with the patient’s beliefs. The surrogate could include family members or close friends, depending on availability.
Application & Relevance
Section 4712 is crucial in probate litigation involving disputes over medical decision-making authority. Attorneys use it to establish proper surrogates or challenge unauthorized decision-making. Its reference is critical for navigating conflicts between family members or validating surrogates’ legal authority in probate disputes.
Legal Scenario
Conservatorship & Guardianship
Probate Code Impact
Section 4712 determines who has the authority to make healthcare decisions when a conservator or guardian is appointed. It establishes the order of priority and can be cited in cases where there is conflict over decision-making authority.
Legal Scenario
Trust Dementia, Incapacity & Undue Influence Claims
Probate Code Impact
This section helps clarify who has the authority to make medical decisions for a person who is incapacitated, which is crucial in trust disputes where incapacity is claimed.
