Default Health-Care Surrogate Priority in California
At a glance
| When the default route opens | Patient lacks decision capacity and has no recognized surrogate, agent, or authorized conservator/guardian (§§ 4657, 4712(a)–(b)). |
|---|---|
| Care or setting covered | Adult health-care decisions, including physical/mental care and care-provider selection (§§ 4651(a), 4617, 4712(b)). |
| Guardian or appointed agent | Patient-designated surrogate → agent → authorized conservator/guardian before provider selection (§§ 4711, 4712(a)). |
| Family and partner order | Provider may choose spouse/partner, adult child, parent, sibling, grandchild, or other adult relative; list is unranked (§ 4712(b)). |
| Friend or other nonfamily person | Provider may also choose a close personal friend who meets the care, values, availability, and willingness tests (§ 4712(b)). |
| Decision within one class | Provider/facility designee selects a qualifying adult appropriate to the situation (§ 4712(b)). |
| Who is available and eligible | Adult with special care, familiarity with values, reasonable availability, and willingness; patient may disqualify (§§ 4635, 4712(b), 4715). |
| Decisions limited or excluded | Follow patient instructions/wishes or best interests; no consent to § 4652 treatments (§§ 4617(b), 4652, 4714). |
| No surrogate or disputed authority | Provider selection if no recognized decisionmaker; authorized petitioner may ask superior court to review surrogate acts (§§ 4712(b), 4765–66). |
Requirements one by one
When the default route opens
California presumes a patient has capacity under § 4657. When a patient lacks capacity, § 4712(a) first recognizes an orally designated surrogate, a health-care agent, then an authorized conservator or guardian. Only when none of those decisionmakers exists does § 4712(b) permit a provider or facility designee to choose a default surrogate.
Care or setting covered
Cal. Prob. Code § 4651(a) addresses adults who lack capacity to decide for themselves. Section 4617 includes selecting and discharging providers and institutions, diagnostic tests, surgery, medication programs including mental-health conditions, and providing or withdrawing artificial nutrition, hydration, and other health care.
Guardian or appointed agent
A patient may personally inform the supervising provider or facility designee of a surrogate choice under § 4711(a). That recorded choice outranks an existing health-care agent for the statutory period, but does not by itself revoke the agent (§ 4711(b)–(d)). That temporary patient designation differs from a provider's later default selection.
Family and partner order
The persons in § 4712(b) are possible selections, not a ranked succession: spouse or domestic partner, adult child, parent, adult sibling, adult grandchild, then other adult relative or close personal friend. For example, the text does not require the provider to exhaust the child class before considering a parent; the selected adult still must meet the statute's qualification test.
Friend or other nonfamily person
A close personal friend can be selected under § 4712(b)(6) if the adult has shown special care and concern, knows the patient's values and beliefs to the extent known, and is reasonably available and willing to serve. The provider or facility designee makes the selection appropriate to the situation, rather than the friend acquiring authority by filing a document alone.
Who is available and eligible
Cal. Prob. Code § 4635 defines “reasonably available” in terms of being contactable without undue effort and able to act in time for the patient's needs. Under § 4715, a patient with capacity can disqualify even a family member by signed writing or by personally informing the supervising provider.
Decisions limited or excluded
Cal. Prob. Code § 4714 requires the surrogate to follow the patient's instructions and known wishes, then the patient's best interest if those wishes are unknown. Cal. Prob. Code § 4652 bars consent under this division to mental-health-facility commitment or placement, convulsive treatment, psychosurgery, sterilization, and abortion. The broader definition in § 4617 still includes decisions about medication programs for mental-health conditions.
No surrogate or disputed authority
If the recognized decisionmakers in § 4712(a) are absent, § 4712(b) lets the provider or facility designee choose a qualified adult. Under § 4765 and § 4766, the patient, listed relatives and professionals, or another interested person may petition for a court determination of capacity or review of a surrogate's acts. The statute identifies the superior court in § 4760.
What trips people up
The patient's own temporary designation under § 4711 ends after the shorter statutory period: the course of treatment or illness, the institutional stay, or 60 days, unless the patient specifies a shorter period. Its expiration does not erase any separate authority the same person may have. The unranked § 4712(b) list should not be converted into an automatic spouse-first rule.
Common questions
Does every surrogate decision require a court order? No. Cal. Prob. Code § 4750(c) says a surrogate's decision is effective without judicial approval, subject to this division.
Can the patient rule out a relative? Yes. Cal. Prob. Code § 4715 allows a patient with capacity to disqualify a person, including family, by signed writing or personal notice to the supervising provider.
Statutes and sources
- Cal. Prob. Code §§ 4617, 4635, 4651, 4652, 4657, 4711–4712, 4714–4715, 4750, and 4765–4766. Verbatim current section text, section URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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