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Default Surrogate Decision Making

By

Thaddeus Mason Pope

, JD, PhD, Mitchell Hamline School of Law

Reviewed/Revised Oct 2023
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If a person is unable to make decisions about personal health care, some other person or people must provide direction in decision making. The general term for such person is surrogate decision maker. If there is no health care power of attorney Health Care Power of Attorney Health care advance directives are legal documents that communicate a person’s wishes about health care decisions in the event the person becomes incapable of making health care decisions. There... read more document in place and no court-appointed guardian or conservator with authority to make health care decisions, then health care professionals usually rely on the next of kin or even a close friend as the default surrogate decision maker. Most states authorize default surrogate decision makers; however, the exact scope of authority and the priority of permissible surrogates vary by state. (See also Overview of Legal and Ethical Issues in Health Care Overview of Legal and Ethical Issues in Health Care Most adults have the legal right to make their own health care decisions. However, poor health can jeopardize people’s ability to exercise their legal rights. Safeguarding these rights requires... read more .)

Adults

In most states, the default surrogate decision maker for adults is normally the next of kin, specified in a priority order by state statute, typically starting with the person’s spouse or domestic partner, then an adult child, a parent, a sibling, and then possibly other relatives. A growing number of states also authorize a close friend to act as default surrogate. If more than one person has the same priority (such as several adult children), consensus is preferred, but some states allow health care professionals to rely on a majority decision or to request that one person be selected to decide for the group. Doctors are more likely to accept the judgment of a person who understands the person’s medical situation and seems to have the best interest of the person in mind. Conflict among authorized decision-makers seriously hinders the process.

People with no family or close friends who are alone in the hospital are far more likely to receive a court-appointed guardian or conservator. If it is not clear who should make decisions, doctors may need to consult with hospital ethics boards or lawyers. In states with no default surrogate laws, health care professionals still normally rely on the person's close family members to make decisions, but may find that legal uncertainties or family disagreement may create barriers to treatment.

Children

In most states, children younger than 18 years old do not have the legal capacity Capacity to Make Health Care Decisions The law recognizes that adults—in most states, people age 18 and older—have the right to manage their own affairs and conduct personal business, including the right to make health care decisions... read more to give medical consent. Therefore, for most nonemergency medical decisions affecting children and minors, medical care cannot be given without a parent’s or guardian’s consent. The parent’s or guardian’s decision can be overridden only if a court determines that the decision constitutes neglect or abuse of the child. There are two main exceptions. First, emancipated minors can consent to all medical treatments on their own behalf. Second, in most states, minors can consent to certain medical treatments (for example, treatment of sexually transmitted infections, prescriptions for birth control, abortion, treatment of drug and substance use, mental health treatment) without parental permission. Individual state laws vary.

Legal Standard for Making Medical Decisions

As much as possible, the surrogate decision maker should include the person they are assisting in the decision-making process. All surrogate decision makers, whether appointed by the person, by the court, or by default, have an obligation to follow the expressed wishes of the adult person and take into account the person’s values if known. Health care professionals are responsible for honoring these wishes and values as well. If the person’s wishes and values are not known, the surrogate decision maker must always be guided by the best interests of the person.

Health care professionals are not required to provide treatments that are medically inappropriate, such as those that are against generally accepted health care standards. If a particular treatment is against a clinician’s conscience but is still within generally accepted health care standards, the clinician should try (and in most states is legally obligated to try) to transfer a person to another doctor or institution willing to comply.

As a practical matter, the first step in making a treatment decision as a person's agent or surrogate decision maker is to get all the facts from health care professionals about diagnosis, prognosis, and alternative treatments. When facing a critical treatment decision, agents and surrogate decision makers should ask themselves questions such as the following:

  • Will this treatment or test make a difference? How?

  • Do the burdens or harms of this treatment outweigh the benefits?

  • Is there hope of recovery, and, if so, what will life be like afterwards?

  • What is the goal of this treatment? Is it aligned with the patient's goals?

NOTE: This is the Consumer Version. DOCTORS: VIEW PROFESSIONAL VERSION
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