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 americanbar.org, 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