Code Section Group

Probate Code - PROB

DIVISION 4.7. HEALTH CARE DECISIONS [4600 - 4806]

  ( Division 4.7 added by Stats. 1999, Ch. 658, Sec. 39. )

PART 3. JUDICIAL PROCEEDINGS [4750 - 4771]

  ( Part 3 added by Stats. 1999, Ch. 658, Sec. 39. )

CHAPTER 3. Petitions and Orders [4765 - 4771]
  ( Heading of Chapter 3 amended by Stats. 2001, Ch. 230, Sec. 6. )

4765.
  

Subject to Section 4753, a petition may be filed under this part by any of the following persons:

(a) The patient.

(b) The patient’s spouse, unless legally separated.

(c) A relative of the patient.

(d) The patient’s agent or surrogate.

(e) The conservator of the person of the patient.

(f) The court investigator, described in Section 1454, of the county where the patient resides.

(g) The public guardian of the county where the patient resides.

(h) The supervising health care provider or health care institution involved with the patient’s care.

(i) Any other interested person or friend of the patient.

(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)

4766.
  

A petition may be filed under this part for any one or more of the following purposes:

(a) Determining whether or not the patient has capacity to make health care decisions.

(b) Determining whether an advance health care directive is in effect or has terminated.

(c) Determining whether the acts or proposed acts of an agent or surrogate are consistent with the patient’s desires as expressed in an advance health care directive or otherwise made known to the court or, where the patient’s desires are unknown or unclear, whether the acts or proposed acts of the agent or surrogate are in the patient’s best interest.

(d) Declaring that the authority of an agent or surrogate is terminated, upon a determination by the court that the agent or surrogate has made a health care decision for the patient that authorized anything illegal or upon a determination by the court of both of the following:

(1) The agent or surrogate has violated, has failed to perform, or is unfit to perform, the duty under an advance health care directive to act consistent with the patient’s desires or, where the patient’s desires are unknown or unclear, is acting (by action or inaction) in a manner that is clearly contrary to the patient’s best interest.

(2) At the time of the determination by the court, the patient lacks the capacity to execute or to revoke an advance health care directive or disqualify a surrogate.

(e) Compelling a third person to honor individual health care instructions or the authority of an agent or surrogate.

(Amended by Stats. 2001, Ch. 230, Sec. 7. Effective January 1, 2002.)

4767.
  

A proceeding under this part is commenced by filing a petition stating facts showing that the petition is authorized under this part, the grounds of the petition, and, if known to the petitioner, the terms of any advance health care directive in question.

(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)

4768.
  

The court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the patient and shall stay or dismiss the proceeding in whole or in part when required by Section 410.30 of the Code of Civil Procedure.

(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)

4769.
  

(a) Subject to subdivision (b), at least 15 days before the time set for hearing, the petitioner shall serve notice of the time and place of the hearing, together with a copy of the petition, on the following:

(1) The agent or surrogate, if not the petitioner.

(2) The patient, if not the petitioner.

(b) In the case of a petition to compel a third person to honor individual health care instructions or the authority of an agent or surrogate, notice of the time and place of the hearing, together with a copy of the petition, shall be served on the third person in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.

(Amended by Stats. 2001, Ch. 230, Sec. 8. Effective January 1, 2002.)

4770.
  

The court in its discretion, on a showing of good cause, may issue a temporary order prescribing the health care of the patient until the disposition of the petition filed under Section 4766. If a power of attorney for health care is in effect and a conservator (including a temporary conservator) of the person is appointed for the principal, the court that appoints the conservator in its discretion, on a showing of good cause, may issue a temporary order prescribing the health care of the principal, the order to continue in effect for the period ordered by the court but in no case longer than the period necessary to permit the filing and determination of a petition filed under Section 4766.

(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)

4771.
  

In a proceeding under this part commenced by the filing of a petition by a person other than the agent or surrogate, the court may in its discretion award reasonable attorney’s fees to one of the following:

(a) The agent or surrogate, if the court determines that the proceeding was commenced without any reasonable cause.

(b) The person commencing the proceeding, if the court determines that the agent or surrogate has clearly violated the duties under the advance health care directive.

(Added by Stats. 1999, Ch. 658, Sec. 39. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)

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