Last updated on: 5/15/2018 | Author:

In the Absence of an Advance Directive, Who Makes Decisions for Incapacitated Patients?

General Reference (not clearly pro or con)

Erica F. Wood, JD, Assistant Director of the American Bar Association Commission on Law and Aging, in an Oct. 2015 article “If There Is No Advance Directive or Guardian, Who Makes Medical Treatment Choices?,” available at, stated:

“In situations in which the patient is not able to give informed consent for treatment, and there is no guardian and no advance directive, some 44 states have ‘default surrogate consent laws’—formerly commonly known as ‘family consent laws.’ These laws generally provide a hierarchy of authorized family decision-makers who in descending order starting with the spouse can make medical treatment decisions on someone’s behalf. Over 20 of these statutes now specify that a ‘close friend’ familiar with the person’s values can make the decision if none of the listed family members exist or are available—and approximately 11 states have developed a mechanism for ‘unbefriended’ patients, usually involving choices by designated physicians often in conjunction with other physicians or ethics committees.”

Oct. 2015

David Godfrey, JD, Senior Attorney for the American Bar Association Commission on Law and Aging, and Charlie Sabatino, JD, Director of the American Bar Association Commission on Law and Aging, in a Jan. 2018 report, “Who Decides If the Patient Cannot and There Is No Advance Directive: Research and Recommendations on Clinical Practice, Law and Policy,” available at, stated:

“Over the past 40 years 40 states have passed statutes regarding health care decision making for patients who lack capacity and have nothing in writing naming a person to make health care decisions for them… Each state falls into one of three general categories: (1) Hierarchy, (2) Authorized surrogates but no hierarchy, and (3) No statutory provision…

Hierarchy statutes provide a list of potential health care decision makers, or surrogates. The list generally lists legal next of kin first and expands from there. In 38 states, the statute prescribes that the highest person available and willing to make health care decisions becomes the surrogate. If, for example, the patient is married, the spouse becomes the surrogate, if there is no spouse, you look to the patients’ children who are legal adults (frequently referred to as adult children), if there are none, you ask the patients’ parents, and so on through the family tree. Some hierarchy statutes include close friends or other provisions for persons with no identifiable family by blood or marriage. Some statutes limit the degree of relationship to the patient for a surrogate, others say the ‘nearest next of kin.’

The majority of the hierarchy statutes offer some statutory guidance for resolving disputes between surrogates of the same degree in the form of sanctioning consent from a majority of authorized surrogates of the same class…

A dozen state statutes provide guidance for making health care decisions when the patient does not have readily identifiable family or friends to make health care decisions. The state by state variations in these laws reflect the overall challenge of helping this patient group.”

Jan. 2018

Forrest Lang, MD, Professor in the Department of Family Medicine at East Tennessee State University and Timothy Quill, MD, Professor of Medicine, Psychiatry, and Medical Humanities at the University of Rochester, wrote in their Aug. 15, 2004 article “Making Decisions with Families at the End of Life”:

“If there is no advance directive, the physician’s first challenge is to determine whom to approach about critical care decisions. While families frequently choose to involve a large number of connected relatives in these discussions, it is useful to define who has ‘final say.’ Some states have enacted legislation that clearly defines the hierarchy of decision makers, and state law should direct these decisions when applicable. Without legal guidance, the most frequent hierarchy is the spouse, then the adult children, and then the parents.”

Aug. 15, 2004

Herma Hill Kay, JD, Law Professor at U.C. Berkeley was quoted in a Mar. 29, 2005 article titled “Spouse As Next of Kin Law Has Many Roots” published by the Associated Press:

“The practice of giving the spouse decision-making authority stretches back to English common law, when a woman basically became a non-person when she married… Of course the laws giving one spouse direction over the other’s affairs are now gender-neutral.”

Mar. 29, 2005