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Default Surrogate Decision Making

by Charles Sabatino, JD

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 durable power of attorney for health care document in place and no court-appointed guardian with authority to make health care decisions, most states provide for a default surrogate decision maker in their state laws.


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 in jurisdictions that recognize this status), 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 practitioners 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. People with no family or close friends who are alone in the hospital are far more likely to receive a court-appointed guardian. 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 practitioners still normally rely on the person's close family members to make decisions but practitioners may find they cannot treat the person because of legal uncertainties or family disagreement.


Children require a decision maker in medical situations. 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. In some states, children can consent to certain medical treatments (such as treatment of sexually transmitted diseases, prescriptions for birth control, and abortion) without parental permission.

Legal Standard for Making Medical Decisions

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 practitioners 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 practitioners 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 practitioner’s conscience but is still within generally accepted health care standards, the practitioner should try (and may be 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 practitioners 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 risks 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 principal’s goals?