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Surrogate Decision-Maker (Default Surrogate Laws)

Who makes medical decisions for a patient who cannot and who never named anyone - the ranked list most state laws supply, the standard the surrogate must apply, and what a surrogate cannot do.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

When a patient cannot make or communicate a health care decision and has no advance directive or health care agent, most states supply a default decision-maker by statute. The statute ranks the people who may act - typically a guardian if one has been appointed, then a spouse or domestic partner, adult children, parents, adult siblings, and in many states a close friend or other adult who knows the patient's values - and the highest-ranked available and willing person acts. Where several people share a rank, the statute usually requires a majority or consensus, and a physician may be required to document the search and the choice in the record.

A surrogate is not free to decide as they personally see fit. The statutes direct the surrogate to decide as the patient would have decided if able - substituted judgment - based on the patient's known values and previous statements, and only where those are unknown to decide in the patient's interests as the statute defines them. A surrogate who cannot or will not apply that standard, or whose own interests conflict, can be displaced by the provider or by a court, and any interested person can seek a guardianship to replace an informal surrogate with a court-supervised one.

Default surrogacy has limits that a named agent does not. Some states withhold from a default surrogate the power to refuse life-sustaining treatment, to consent to psychiatric treatment or sterilisation, or to make decisions for a pregnant patient, or require a higher level of evidence or a second physician's opinion before such decisions take effect. Unmarried partners, chosen family and estranged relatives are where the statutes produce results the patient would not have wanted, which is the reason for naming an agent while able.

Where this comes from

Default surrogate consent is state law and varies in the ranking, the standard and the limits; most statutes follow the Uniform Health-Care Decisions Act (1993) § 5, revised in 2023, adopted in whole or in part in a number of states. Representative statutes are California Probate Code § 4711 and following (surrogate designation and, since 2023, a default surrogate list), Illinois Health Care Surrogate Act, 755 ILCS 40, and New York Family Health Care Decisions Act, Public Health Law article 29-CC. A state without a statute relies on its courts' common law and on guardianship.

When people hire a lawyer for this

The advice here is the same for everyone: name a health care agent in a signed directive so that the default list never applies, and tell the agent what you want. A family that is being told a surrogate lacks authority for a particular decision, or is in conflict with a provider or with each other about who decides, should ask the hospital's ethics service first and a lawyer if that fails, because the alternative - a guardianship petition - is slow and public.

Find a lawyer for this in your state

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.