Laws authorizing representatives to exercise rights

Key:
USC – United States Code
CFR – Code of Federal Regulations
H&S – Code California Health and Safety Code

Laws authorizing representatives to exercise rights:

  • 22 CCR §72527(c)&(d)
  • H&S Code §§1599.3 & 1418.8(c)
  • 42 CFR §483.10(a)(3) & (4)
  • 42 USC §1396r(c)(1)(C)
  • Note: The excerpt of the following regulation contains pertinent provisions on the authority of residents’ representatives to exercise their rights but excludes other parts of the regulation.

    California Code of Regulations, Title 22, Section 72527(c) & (d)

    (c) If a patient lacks the ability to understand these rights and the nature and consequences of proposed treatment, the patient’s representative shall have the rights specified in this section to the extent the right may devolve to another, unless the representative’s authority is otherwise limited. The patient’s incapacity shall be determined by a court in accordance with state law or by the patient’s physician unless the physician’s determination is disputed by the patient or patient’s representative.

    (d) Persons who may act as the patient’s representative include a conservator, as authorized by Parts 3 and 4 of Division 4 of the Probate Code (commencing with Section 1800), a person designated as attorney in fact in the patient’s valid durable power of attorney for health care, patient’s next of kin, other appropriate surrogate decisionmaker designated consistent with statutory and case law, a person appointed by a court authorizing treatment pursuant to Part 7 (commencing with Section 3200) of Division 4 of the Probate Code, or, if the patient is a minor, a person lawfully authorized to represent the minor.

    California Health and Safety Code Section 1599.3

    Any rights under this chapter of a patient judicially determined to be incompetent, or who is found by his physician to be medically incapable of understanding such information, or who
    exhibits a communication barrier, shall devolve to such patient’s guardian, conservator, next of kin, sponsoring agency, or representative payer, except when the facility itself is the
    representative payer.

    Note: The excerpt of the following law contains pertinent provisions on the authority of residents’ representatives to exercise their rights but excludes other parts of the law.

    California Health and Safety Code Section 1418.8

    1418.8. (a) If the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician and surgeon determines that the resident lacks capacity to make decisions concerning his or her health care and that there is no person with legal authority to make those decisions on behalf of the resident, the physician and surgeon shall inform the skilled nursing facility or intermediate care facility.

    (b) For purposes of subdivision (a), a resident lacks capacity to make a decision regarding his or her health care if the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention. To make the determination regarding capacity, the physician shall interview the patient, review the patient’s medical records, and consult with
    skilled nursing or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.

    (c) For purposes of subdivision (a), a person with legal authority to make medical treatment decisions on behalf of a patient is a person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin. To determine the existence of a person with legal authority, the physician shall interview the patient, review the medical records of the patient, and consult with skilled nursing or intermediate care facility staff, as appropriate, and with family members and friends of the resident, if any have been identified.

    Code of Federal Regulations, Title 42, Section 483.10(a)

    Resident rights.

    The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights:
    (a) Exercise of rights. (1) The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.
    (2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.
    (3) In the case of a resident adjudged incompetent under the laws of a State by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under State law to act on the resident’s behalf.
    (4) In the case of a resident who has not been adjudged incompetent by the State court, any legal-surrogate designated in accordance with State law may exercise the resident’s rights to the extent provided by State law.

    United States Code, Title 42, Section 1396r(c)(1)(C)

    (C) Rights of incompetent residents
    In the case of a resident adjudged incompetent under the laws of a State, the rights of the resident under this subchapter shall devolve upon, and, to the extent judged necessary by a court of competent jurisdiction, be exercised by, the person appointed under State law to act on the resident’s behalf.

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