QMy best friend of many years is in the hospital and is not able to tell her doctors her wishes regarding medical care. She has no close family members and–unfortunately– has not designated a Health Care Agent in writing, nor is she now capable of doing so. Is it possible for me, her long time friend, to speak for her?

A. Yes! Under a new California law effective this year (2023), in the circumstances you describe, her doctors are now permitted to select a medical “surrogate” (agent) to make health care decisions for your friend. The new law, known as AB 2338 and now codified in CA Probate Code § 4712 provides that where, as in your friend’s case, she has not designated a Health Care Agent/Surrogate in a written Advance Health Care Directive, and is not capable of designating someone orally, that her health care providers may now choose a “surrogate” for her. The choice would be from a list of adults persons, whom the her health care providers determine..

“..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.”

The choice would be from the following list of persons, without any preference in hierarchy:

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

While other states with similar laws have opted to designate a preferential hierarchy, the new California law purposely does not! This decision was intentional and was apparently the subject of much debate, and was made in recognition that families and relationships are not all the same.

So, now, your friend’s doctors are free, in the circumstances you describe, to choose you to speak for her, as a “close personal friend” who has “demonstrated special care and concern…is familiar with [her] personal values and beliefs…and is reasonably available”. Some feel that the new law now gives legal legitimacy and protection to what doctors have long been doing, albeit informally, in circumstances where the patient could not speak for herself.

Good wishes to you and to your friend. She is lucky to have you by her side.