Key Takeaways
- Surrogate decision makers make healthcare choices when you are incapacitated
- Where an individual has no appointed surrogate, state laws determine who takes the role
- Consent laws for surrogate decision makers differ significantly by state
- Default surrogates must consent verbally or in writing
When an individual is in critical condition, such as in a coma, decisions must be made on the next course of treatment. The process is more straightforward if you prepare advance directive forms that specify who makes decisions.
If you do not have an appointed proxy, the law contains provisions to nominate someone. Each State defines who can be a surrogate decision maker.
Read on to understand the surrogate decision maker definition, how to become one, and who is likely to step in if you lack a representative.
Start an Advance Directive now
What Is the Meaning of a Surrogate Decision Maker?
A surrogate decision maker, also called a healthcare proxy, is an individual appointed to make medical decisions on behalf of someone incapacitated by injury or illness. They can also be appointed to take charge when you lack the mental capacity to make decisions in conditions such as:
- Moderate to severe dementia
- Degenerative disease (e.g., Amyotrophic Lateral Sclerosis - ALS)
- Alzheimer's disease
- Terminal stage illness
The surrogate decision maker may be a family member, friend, or legal representative appointed through legal documentation, such as a Durable Power of Attorney. Afterward, they become responsible for medical decisions that align with your beliefs, wishes, and values.
Consent Laws for Surrogate Decision Makers
In summary, surrogate consent laws are legal provisions that monitor surrogate decision-making. These laws establish who may serve as a surrogate decision maker and the factors to consider when the appointed person makes medical decisions. They also make provisions for dispute resolution.
Overall, two surrogate consent laws are recognized: Hierarchy surrogate consent laws and Consensus surrogate consent laws. The following table compares the two laws.
| Hierarchy Surrogate Consent Laws | Consensus Surrogate Consent Laws | |
| Decision-making process | Has a clear hierarchy of individuals authorized to make the medical decisions | Requires collaborative decision-making among family members (decision by surrogates) to reach a consensus |
| Purpose | Provides a straightforward decision-making framework in the absence of a designated surrogate decision maker | Seeks to respect the patient's wishes while taking into account the perspective of family members |
| Main advantage | Offers a simple decision-making process that is easy to implement | Provides a more refined decision-making process that is sensitive to the patient's existing relationships |
| Key disadvantage | Challenging when family dynamics are complicated, and the patient's wishes are not clear | Time-consuming and may cause conflict among family members |
Consent laws governing surrogate decision-makers vary by jurisdiction. According to the California Probate Code (§ 4712), a spouse or an adult child is a potential surrogate decision maker.
Definition of default surrogate consent
Default surrogate consent refers to the legal provision that specifies who is authorized to make critical healthcare decisions on the patient’s behalf. Essentially, this person was not appointed as a surrogate decision maker through legal documentation such as a durable medical power of attorney.
The default surrogate consent provision prevents families from going into a judicial guardianship proceeding for lacking an advanced directive form. This leeway allows the physician to consult a designated person or people who can convey your wishes.
Surrogate decision-maker hierarchy
Surrogate decision maker hierarchy refers to the legal order of persons authorized to make medical decisions on behalf of the patient who has not designated a surrogate decision-maker.
The default surrogate consent laws establish the hierarchy and may vary by state and jurisdiction. Generally, the following is the order in which the law authorizes a surrogate decision maker:
- Spouse/domestic partner
- Adult children
- Parents
- Siblings
- Other relatives in order of closeness
- Close friends
- Court-appointed guardians
- Legal representatives
It is crucial that the appointed decision-maker knows the patient’s values and is willing to act in the patient's best interests.
How to Become a Surrogate Decision Maker
You can become a surrogate decision maker through one of two ways. Examine each way you can become a decision maker to decide which works best for you.
Legal appointment
The person you will represent assigns you as their representative. The process follows these steps:
- The patient nominates you to act on their behalf if they become incapacitated
- You discuss their values, beliefs, and future healthcare preferences
- You formalize the agreement by signing a surrogate decision maker form
Default by law
- If the patient becomes incapacitated before appointing a surrogate, you may be at the top of the list in the order of surrogate decision makers.
- Where there are multiple persons with equal priority, such as two siblings, the family should reach a consensus.
- Your State may let you volunteer if you meet the legal criteria.
Accepting your role
Depending on your State, you may accept the appointment verbally or in writing.
FAQs About Surrogate Decision Makers
-
Is a healthcare proxy and surrogate decision maker the same thing?
Yes, a healthcare proxy and a surrogate decision maker refer to the same person. Other terms denoting someone in the same position include agent and healthcare representative.
Their role is to make medical decisions when you are unable to do so because of an illness or injury. They serve as your voice when you are unconscious or unable to communicate your wishes due to mental incapacity.
For more on these roles, see our guide on power of attorney vs executor.
-
Who can be a surrogate decision maker for a patient?
To be a surrogate decision maker, you must be an adult of sound mind. You should understand the patient’s values and wishes and be willing to respect them.
A patient may appoint any qualified individual. If you become incapacitated without a healthcare proxy, a close relative such as your adult children, parents, or siblings may step in. The law outlines potential surrogates following a preset hierarchy.
Families may also reach a consensus to nominate a representative for an incapacitated patient.
-
Is a surrogate decision maker the same as a guardianship?
No, a guardianship is a court-approved arrangement that appoints a conservator to make decisions on behalf of an incapacitated adult. Courts typically intervene where the person has no proxy to represent them.
You typically choose your own surrogate decision maker, meaning a trusted person who makes healthcare decisions on your behalf. A surrogate decision-maker may also become one by default under state law.
Having a surrogate decision maker protects families from forced court-ordered guardianships, which may select an individual the patient would not want. In some cases, families may resort to temporary guardianship to care for a sick relative.
-
How accurate are surrogate decision makers?
Surrogate decision makers are roughly accurate two-thirds of the time. Emotionally tense situations, complex information, and the inability to separate their “best interest” from those of the patients contribute to reduced accuracy.
Although they play a crucial role, surrogates are not foolproof. This fact underscores the need to express your future healthcare wishes in writing before you lose the ability to do so. You may use a Living Will or another advance directive.
Key Takeaways
- Surrogate decision makers make healthcare choices when you are incapacitated
- Where an individual has no appointed surrogate, state laws determine who takes the role
- Consent laws for surrogate decision makers differ significantly by state
- Default surrogates must consent verbally or in writing
When an individual is in critical condition, such as in a coma, decisions must be made on the next course of treatment. The process is more straightforward if you prepare advance directive forms that specify who makes decisions.
If you do not have an appointed proxy, the law contains provisions to nominate someone. Each State defines who can be a surrogate decision maker.
Read on to understand the surrogate decision maker definition, how to become one, and who is likely to step in if you lack a representative.
Start an Advance Directive now
What Is the Meaning of a Surrogate Decision Maker?
A surrogate decision maker, also called a healthcare proxy, is an individual appointed to make medical decisions on behalf of someone incapacitated by injury or illness. They can also be appointed to take charge when you lack the mental capacity to make decisions in conditions such as:
- Moderate to severe dementia
- Degenerative disease (e.g., Amyotrophic Lateral Sclerosis - ALS)
- Alzheimer's disease
- Terminal stage illness
The surrogate decision maker may be a family member, friend, or legal representative appointed through legal documentation, such as a Durable Power of Attorney. Afterward, they become responsible for medical decisions that align with your beliefs, wishes, and values.
Consent Laws for Surrogate Decision Makers
In summary, surrogate consent laws are legal provisions that monitor surrogate decision-making. These laws establish who may serve as a surrogate decision maker and the factors to consider when the appointed person makes medical decisions. They also make provisions for dispute resolution.
Overall, two surrogate consent laws are recognized: Hierarchy surrogate consent laws and Consensus surrogate consent laws. The following table compares the two laws.
| Hierarchy Surrogate Consent Laws | Consensus Surrogate Consent Laws | |
| Decision-making process | Has a clear hierarchy of individuals authorized to make the medical decisions | Requires collaborative decision-making among family members (decision by surrogates) to reach a consensus |
| Purpose | Provides a straightforward decision-making framework in the absence of a designated surrogate decision maker | Seeks to respect the patient's wishes while taking into account the perspective of family members |
| Main advantage | Offers a simple decision-making process that is easy to implement | Provides a more refined decision-making process that is sensitive to the patient's existing relationships |
| Key disadvantage | Challenging when family dynamics are complicated, and the patient's wishes are not clear | Time-consuming and may cause conflict among family members |
Consent laws governing surrogate decision-makers vary by jurisdiction. According to the California Probate Code (§ 4712), a spouse or an adult child is a potential surrogate decision maker.
Definition of default surrogate consent
Default surrogate consent refers to the legal provision that specifies who is authorized to make critical healthcare decisions on the patient’s behalf. Essentially, this person was not appointed as a surrogate decision maker through legal documentation such as a durable medical power of attorney.
The default surrogate consent provision prevents families from going into a judicial guardianship proceeding for lacking an advanced directive form. This leeway allows the physician to consult a designated person or people who can convey your wishes.
Surrogate decision-maker hierarchy
Surrogate decision maker hierarchy refers to the legal order of persons authorized to make medical decisions on behalf of the patient who has not designated a surrogate decision-maker.
The default surrogate consent laws establish the hierarchy and may vary by state and jurisdiction. Generally, the following is the order in which the law authorizes a surrogate decision maker:
- Spouse/domestic partner
- Adult children
- Parents
- Siblings
- Other relatives in order of closeness
- Close friends
- Court-appointed guardians
- Legal representatives
It is crucial that the appointed decision-maker knows the patient’s values and is willing to act in the patient's best interests.
How to Become a Surrogate Decision Maker
You can become a surrogate decision maker through one of two ways. Examine each way you can become a decision maker to decide which works best for you.
Legal appointment
The person you will represent assigns you as their representative. The process follows these steps:
- The patient nominates you to act on their behalf if they become incapacitated
- You discuss their values, beliefs, and future healthcare preferences
- You formalize the agreement by signing a surrogate decision maker form
Default by law
- If the patient becomes incapacitated before appointing a surrogate, you may be at the top of the list in the order of surrogate decision makers.
- Where there are multiple persons with equal priority, such as two siblings, the family should reach a consensus.
- Your State may let you volunteer if you meet the legal criteria.
Accepting your role
Depending on your State, you may accept the appointment verbally or in writing.
FAQs About Surrogate Decision Makers
-
Is a healthcare proxy and surrogate decision maker the same thing?
Yes, a healthcare proxy and a surrogate decision maker refer to the same person. Other terms denoting someone in the same position include agent and healthcare representative.
Their role is to make medical decisions when you are unable to do so because of an illness or injury. They serve as your voice when you are unconscious or unable to communicate your wishes due to mental incapacity.
For more on these roles, see our guide on power of attorney vs executor.
-
Who can be a surrogate decision maker for a patient?
To be a surrogate decision maker, you must be an adult of sound mind. You should understand the patient’s values and wishes and be willing to respect them.
A patient may appoint any qualified individual. If you become incapacitated without a healthcare proxy, a close relative such as your adult children, parents, or siblings may step in. The law outlines potential surrogates following a preset hierarchy.
Families may also reach a consensus to nominate a representative for an incapacitated patient.
-
Is a surrogate decision maker the same as a guardianship?
No, a guardianship is a court-approved arrangement that appoints a conservator to make decisions on behalf of an incapacitated adult. Courts typically intervene where the person has no proxy to represent them.
You typically choose your own surrogate decision maker, meaning a trusted person who makes healthcare decisions on your behalf. A surrogate decision-maker may also become one by default under state law.
Having a surrogate decision maker protects families from forced court-ordered guardianships, which may select an individual the patient would not want. In some cases, families may resort to temporary guardianship to care for a sick relative.
-
How accurate are surrogate decision makers?
Surrogate decision makers are roughly accurate two-thirds of the time. Emotionally tense situations, complex information, and the inability to separate their “best interest” from those of the patients contribute to reduced accuracy.
Although they play a crucial role, surrogates are not foolproof. This fact underscores the need to express your future healthcare wishes in writing before you lose the ability to do so. You may use a Living Will or another advance directive.
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