Who Should Have an Advance Directive?

Because illness and accidents can strike at any age, every adult should have an advance directive and a durable power of attorney for health care. According to the Cleveland Clinic, this means anyone over the age of 18. In most states, emancipated minors may also execute an advance directive if they choose to do so. 

That being said, a significant number of American adults do not have an advance directive in place. Although the number has been creeping steadily upward in recent years, a 2023 national survey conducted by Compassion and Choices found that 93% of adults recognize that it is important to have an advance directive, but only 37% of those asked had completed one. Of those that had, only 12% had shared their advance directive with their doctor, and nearly 60% had not selected a surrogate decision maker. 

Further, 85% of survey participants said they felt comfortable discussing end-of-life matters with their primary care provider but only 17% had.

In order to address this issue legally, some states have enacted “surrogate consent statutes,” which designate the individual or individuals who have the legal right to make medical decisions for a person who has no advance directive and cannot speak for themselves. 

Generally, surrogate consent laws fall into two categories: hierarchy surrogate consent laws and consensus surrogate consent laws. Most states that have enacted such laws have chosen to impose a hierarchical consent scheme with family members named in a descending order, which is generally the following:

• A spouse
• An adult child 
• A parent
• An adult sibling

Some states also include nieces and nephews, grandchildren, aunts and uncles and — in some cases — any living relative. In other states, a “close friend” may be authorized to make decisions, though their input may carry less weight than next-of-kin. 

It is important to be aware, however, that these laws are not consistent across the U.S., and many statutes impose limitations on the decisions that these default surrogates can make. Further, state laws can change frequently, and it is difficult for the average person to keep track of changes in real time. Therefore, it is vital that every person over the age of 18 have a written advance directive that designates a healthcare surrogate whom they trust to make medical decisions on their behalf. 

Sources

“Advance Care Planning and Advance Directives”. Cleveland Clinic. https://my.clevelandclinic.org/patients/information/medical-decisions-guide/advance-directives 

“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/