If a person is unable to make decisions about personal health care, some other person or persons must provide direction in decision making. Such a person is called the surrogate decision maker. If there is a durable power of attorney for health care, the agent appointed by that document is authorized to make health care decisions within the scope of authority granted by the document. If the person has a court-appointed guardian with authority to make health care decisions, the guardian is the authorized surrogate.
If there is no appointed surrogate, the normal custom and practice, as well as the law in most states, permits health care practitioners to turn to next of kin as default surrogate decision makers. States that provide this option by statute typically provide an order of priority of surrogates, 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.
Children also 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.
All surrogates, whether appointed by the person, by default, or by the court, have an obligation to follow the expressed wishes of the adult person and to act in the person's best interests, taking into account the person's values if known. Health care practitioners are responsible for honoring these wishes as well. However, 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 to transfer a person to another doctor or institution of the surrogate's choice.
Last full review/revision October 2007 by Charles Sabatino, JD