Who Can Make Decisions About My Care if I Don’t Have a Health Care Proxy?

If someone does not have an advance directive or healthcare proxy, the state laws where they reside indicate who can make decisions on their behalf. The designated decision-maker can vary by state but typically includes one of the following:

• A spouse or domestic partner
• Adult children 
• Parents 
• Siblings or close relatives

Default surrogate consent and family consent laws, which define a list of permissible and prioritized surrogates, currently exist in 46 states and the District of Columbia. The lists indicate who can act as a surrogate if a patient doesn’t have an advance directive and who the next point of contact should be as a potential candidate if the initial surrogate is unavailable. For example, if a spouse is not available to act as a surrogate, an adult child would be the next potential surrogate to contact. 

If all of these individuals are inaccessible, providers must seek another alternative for decision-making. This situation can occur when the patient is homeless or has no family or friends to act as a surrogate. In this scenario, healthcare decisions may be directed to one of the following three entities:

• A court-appointed guardian or conservator
• An ethics committee 
• Physicians 

Based on this chain of contact, a variety of individuals and entities can make decisions on behalf of patients who do not have an advance directive or healthcare proxy. Ultimately, there will always be someone who can decide on a patient’s behalf when necessary. But it is important to recognize that these decisions may not align with the patient’s preferences or values without an advance directive or a surrogate decision-maker in place.

Sources

“Advance Care Planning: Advance Directives for Health Care”. National Institute on Aging. https://www.nia.nih.gov/health/advance-care-planning/advance-care-planning-advance-directives-health-care

“Advance Directives and Advance Care Planning: Legal and Policy Issues”. ASPE. https://aspe.hhs.gov/reports/advance-directives-advance-care-planning-legal-policy-issues-0 

“Recent Updates to Default Surrogate Statutes”. American Bar Association. https://www.americanbar.org/groups/law_aging/publications/bifocal/vol44/bifocal-vol-44-issue3/recent-updates-to-default-surrogate-statutes/#:~:text=As%20of%20December%202022%2C%2046,have%20default%20surrogate%20consent%20laws 

“Who Makes Decisions for Incapacitated Patients Who Have No Surrogate or Advance Directive?”. AMA Journal of Ethics. https://journalofethics.ama-assn.org/article/who-makes-decisions-incapacitated-patients-who-have-no-surrogate-or-advance-directive/2019-07