In “The Farewell,” now out in theaters, family members choose not to tell the matriarch (“Nai Nai”) of her terminal lung cancer diagnosis. They use the pretext of a wedding to get the family together in China so that they can spend time with Nai Nai one last time without actually saying goodbye. The well-meaning thought is that she will be happier and live longer if she thinks she’s healthy.
Written and directed by Lulu Wang, the critically-acclaimed film is promoted as being “based on an actual lie.” Wang explained a few years ago on the radio program This American Life that the story came from her own family’s experience.
In the movie version of the tale, Nai Nai’s granddaughter Billi (played by Awkwafina) who has grown up in the United States struggles with whether withholding the truth from Nai Nai is the right thing to do.
What if we import this story into the Golden State? Could Nai Nai, if a resident of California, be kept in the dark about her cancer diagnosis?
The short answer is “no” because doctors invariably discuss diagnosis and prognosis with their patients, assuming they have an adequate level of mental capacity, and such capacity is assumed under California Probate Code section 810 and section 4657. Hence, the scene in the movie in which a doctor describes Nai Nai’s condition in English to her relatives, so she won’t discover the gravity of her condition while she sits in the examination room, is implausible in a California hospital.
Yet a milder form of the deception portrayed in the movie could well occur here. If Nai Nai signs an advance health care directive naming Billi or another family member as her agent, or simply authorizes her doctor to talk to a family member, the agent might learn details about Nai Nai’s condition that have not been shared with her. Must the agent then share those details with Nai Nai even if the agent thinks the information will only upset her?
Here, there is a measure of flexibility.
Advance health care directives (sometimes called powers of attorney for health care) are a key part of estate planning because they allow us as “principals” to select an “agent” to make health care decisions for us when we cannot do so. For sample health care directives, see the optional form at California Probate Code section 4701 and the California Medical Association’s Advance Health Care Directive Kit.
Most directives empower the agent only when the principal’s physician determines that the principal is unable to make her own health care decisions, but the principal can choose to give the agent decision-making powers regardless of the principal’s mental fitness.
An agent is a fiduciary of the principal. Hence, anyone acting as Nai Nai’s agent would have general duties of loyalty and candor to disclose facts to her. On the other hand, Nai Nai presumably would intend to give some discretion to her agent.
By this logic, if the agent quizzed the doctor privately about the symptoms Nai Nai was likely to experience in her decline, the agent might apply an editorial filter and hold back some details as long as the agent does so reasonably and in good faith, with Nai Nai’s best interests in mind. The agent should ensure, however, that Nai Nai has sufficient information about her condition to make informed health care decisions.
In other words, the health care agent can’t keep the terminal diagnosis away from the principal, but has some discretion in framing the farewell.
Jeffrey Galvin is an attorney with Downey Brand LLP, based in Sacramento. He litigates trust and estate cases in Northern California, including disputes involving trust and probate administration, contests of trusts and wills, and financial elder abuse claims.