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.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of Health Care law firms.

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 sterilization, 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

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.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• Advance Directive and Living WillDocuments recording medical treatment wishes, and naming who decides, if a person becomes unable to decide for themselves.
• Civil Commitment (Involuntary Psychiatric Hospitalization)The state-law process by which a person can be held and treated in a psychiatric facility against their will - the emergency hold, the court hearing, the standard of dangerousness, and the constitutional limits on all three.
• COBRA Continuation CoverageThe federal right to stay on an employer's group health plan after leaving the job, losing hours, divorcing, or a covered employee's death - at the full premium, for a limited period, if elected in time.
• Elder Abuse and Adult Protective ServicesWhat the law counts as abuse, neglect or exploitation of an older or dependent adult, who must report it, what Adult Protective Services can and cannot do, and the civil and criminal remedies that follow.
• EMTALA (Emergency Medical Treatment and Labor Act)The federal law that requires a hospital emergency department to screen and stabilize anyone who comes through the door, regardless of insurance or ability to pay, before it may transfer or discharge them.
• Fair Hearing (Public Benefits)The hearing you are entitled to before benefits such as Medicaid or SNAP are cut off or denied - a constitutional right, not an agency courtesy.
• False Claims Act and Health Care Whistleblowers (Qui Tam)The federal statute under which false billing to Medicare or Medicaid carries treble damages and per-claim penalties, and the qui tam procedure that lets a private person sue in the government's name and share the recovery.
• Health Plan Claim Denial and AppealThe structured process for challenging a refusal to cover treatment - internal appeal first, then in most cases an independent external review.
• HIPAA and Your Medical RecordsThe federal privacy rules for health information - including a right to get a copy of your own records, which is narrower and more practical than the privacy rule people usually mean.
• Hospital Financial Assistance and Medical DebtThe federal rules that make a nonprofit hospital publish a financial assistance policy, limit what it may charge eligible patients, and restrict how it collects - and what a patient with a medical bill can do with them.
• Informed ConsentA patient's agreement to treatment after being told the risks and alternatives - and a signed form is evidence that the conversation happened, not proof that it was adequate.
• Life Insurance Claim DenialThe common reasons life insurers deny or delay death benefits, how the rules differ for employer group policies under ERISA, and what beneficiaries can do about disputes over who gets paid.
• Medicaid Estate RecoveryThe federal requirement that a state recover the cost of long-term care Medicaid paid for from the estate of the person who received it after they die - the reason the family home is at stake, and the exemptions and hardship rules that limit it.
• Medical Malpractice and the Standard of CareA negligence claim against a healthcare provider, judged against what a reasonably competent practitioner in the same field would have done.
• Medicare AppealsThe five-level process for challenging a Medicare denial - of a claim, a service, a hospital discharge, or a nursing-home stay - with a different deadline at each level and a fast track when the care is about to stop.
• Mental Health ParityThe federal requirement that a health plan covering mental-health or substance-use treatment cover it on terms no more restrictive than its medical and surgical coverage - in dollars, in visit limits, and in the prior-authorization and network rules that are harder to see.
• Nursing Home Residents' RightsThe federal bill of rights every Medicare- or Medicaid-certified nursing home must honor - dignity, choice, freedom from restraints and abuse, notice before transfer or discharge - and the inspection and complaint system that enforces it.
• Patient AbandonmentWhen a physician or provider may end a relationship with a patient, what notice and transition care they must give, and when ending it - or refusing to start it - becomes actionable.
• Psychotherapist-Patient PrivilegeThe rule that keeps what a patient tells a therapist out of court - who it covers, who holds it, how it is waived, and the duty-to-warn and child-abuse exceptions that override it.
• Refusing Medical TreatmentThe right of a competent adult to refuse any treatment, including one that keeps them alive; what happens when the patient cannot decide; and the limits the law places on it.
• Social Security Disability Appeal (SSDI and SSI)The four-step process for challenging a denied disability claim - and most claims are denied at the first step.
• Stark Law and the Anti-Kickback StatuteThe two federal laws that govern financial relationships in health care - the strict-liability ban on physician self-referral and the criminal ban on paying for referrals - and why nearly every practice arrangement has to fit an exception or a safe harbor.
• SubrogationThe right of an insurer or health plan that paid your bills to be repaid out of your settlement - the reason a recovery is often smaller than it looks.
• Supplemental Security Income (SSI)The federal needs-based benefit for people who are aged, blind or disabled and have little income or savings: how it differs from Social Security disability, what counts against it, and how to appeal.
• Surprise Medical Billing (No Surprises Act)The federal protection, since 2022, against a bill from an out-of-network provider the patient did not choose - the emergency room, the anesthesiologist at an in-network hospital, the air ambulance - and the good-faith estimate an uninsured patient can hold a provider to.
• Veterans Disability CompensationThe tax-free monthly VA benefit for disabilities connected to military service: what service connection means, how ratings work, and the three ways to challenge a VA decision.

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