The PDF in which this article appears can be found in Bifocal Vol. 44 Issue 3.
Default surrogate statutes provide patients with a healthcare decision-maker when no healthcare agent or guardian has been appointed. These statutes may also provide guidance for how healthcare decisions should be made. As states continue to update and, in some cases, expand their statutes, this article describes several recent trends in default surrogate statutes across the United States. These trends include several states enacting default surrogate consent laws, recognizing distant family members and nonrelatives as possible surrogate decision-makers, and expanding healthcare worker roles when working with patients and their default surrogates.
Increase in the Number of States with Default Surrogate Statutes
The U.S. Census estimates that by 2034, people over age 65 will outnumber children in population size. By 2060, nearly one in four Americans will be 65 years and older, the number of 85-plus will triple, and the country will add a half million centenarians. As the population of older adults increases, research by the Alzheimer’s Association and other medical professionals indicates a likely increase in the number of hospitalized older adults with Alzheimer’s, delirium, or other related cognitive disorders. Default surrogate statutes can act as a backstop for those without appointed healthcare decision-makers and help ensure that the wishes and values of the aging population are followed. As of December 2022, 46 states have enacted default surrogate statutes. (Massachusetts, Minnesota, Missouri, and Rhode Island do not have default surrogate consent laws.)
Over the past eight years, New Hampshire (2015), Nebraska (2018), Vermont (2016), and California (2022) have enacted new default surrogate consent laws. Previously, New Hampshire, Nebraska, and Vermont did not have default surrogate laws. While California’s default surrogate laws only applied in limited circumstances, such as for medical research and nursing home patients, its new statute will be generally applicable.
These new laws guide and authorize certain adults to make health care decisions on behalf of adults who cannot give informed consent to medical care and have not named a decision maker or had a guardian appointed. For example, when New Hampshire enacted a default surrogate statute, the state created a hierarchy of possible surrogates, established a majority rule for a class of surrogates, and detailed restrictions on the types of decisions surrogates can make on behalf of the patient. For instance, a surrogate’s authority only spans 180 days and cannot be used to withhold or withdraw artificial nutrition and hydration unless the patient is near death or permanently unconscious. N.H. Rev. Stat. Ann. §§137-J:10, J:35, J:37 (West 2022). Similarly, Nebraska’s law established a hierarchy of possible surrogates, detailed how disagreements between a class of surrogates should be handled, and stated a surrogate’s duties to their principal. Neb. Rev. St. §§30-601 to 619 (West 2022). Vermont’s default surrogate statute, however, only permits default surrogate decision makers to provide or withhold informed consent under a patient’s DNR (Do Not Resuscitate) Order or COLST (Clinician Orders for Life-Sustaining Treatment). Vt. Stat. Ann. tit. 18, §§9701, 9731. While California’s previous statutes only applied in limited circumstances, in 2022, California’s governor signed a generally applicable default surrogate statute, further establishing a trend of states adding these statutes to their laws. 2021 California Assembly Bill No. 2338, California 2021-2022 Regular Session.
Recognizing Distant Family Members and Non-Relatives as Health Care Decision-Makers
An increasing number of state statutes authorize distant relatives or persons with a meaningful relationship to the patient as healthcare decision-makers when no one else is available. This trend likely helps accommodate patients who have nontraditional family structures and limited contact with family members. In those cases, these statutes help recognize and grant authority to people close to those unable to make their own healthcare decisions.
In 2017, Arkansas amended its default surrogate statute to include adult nonfamily members at the bottom of its surrogate decision-maker hierarchy. The adult nonfamily member would be able to serve as the surrogate as long as they have exhibited special care and concern for the principal, are familiar with their principal’s personal values, and are reasonably available and willing to serve. Ark. Code Ann. § 20-6-105 (West 2022). Additionally, if none of the individuals listed in the hierarchy are eligible to act as a surrogate, a supervising healthcare provider may make healthcare decisions for the principal. The previous language only permitted a designated physician to act as the final surrogate. This change expanded the ability to serve as a decision-maker to other healthcare workers like nurses and clinical social workers. Id.
Similarly, in 2018, Indiana added “other nearest adult relative” to its listed surrogate decision-maker hierarchy. The state also now permits an adult friend who “has maintained regular contact with the individual, and is familiar with the individual’s activities, health and religious or moral beliefs” to act as the default surrogate. Ind. Code Ann. § 16-36-1-5 (West 2022). The revised statute also notes that when there is disagreement within the same priority level, the majority of the available individuals at the same priority level control. Id. The following year, South Carolina included a person with an established relationship with the patient as an eligible decision-maker. S.C. Code Ann. § 44-66-30. In 2022, Washington officially expanded its list of persons authorized to provide informed consent on behalf of the patient to include adult grandchildren, adult nieces and nephews, adult aunts and uncles, and close friends. Wash. Rev. Code Ann. § 7.70.065 (West 2022).
The above-mentioned changes allow more individuals who might best understand the patient’s wishes, values, and best interests to serve as their default surrogate decision-maker. Expanding the list of eligible surrogates also allows distant relatives and friends to act as decision-makers without needing to seek guardianship. For example, a previous version of Washington’s statute mentioned above only included the patient’s spouse, children, parents, and siblings in the hierarchy. Now more distant relatives, including adult grandchildren, adult nieces and nephews, adult aunts and uncles, and close friends, are included in the hierarchy in that order. As a result, the statute authorizes more distant family members and close friends in Washington to act as surrogate decision-makers without seeking guardianship.
Expanding Roles of Healthcare Workers
Likely in response to rising healthcare needs, expanding ranks of allied health professions, and the desire to save costs, states have begun expanding the roles of healthcare workers who interact with patients and their default surrogate decision-makers. For example, in 2018, Nevada permitted attending advanced practice registered nurses to determine whether a patient is in a terminal state and may be withheld life-sustaining treatment. Nev. Rev. Stat. Ann. § 449A.454 (West 2022).
In 2020, New York added physician assistants (PAs) to its surrogate decision-making statutes. PAs can now either determine or concur and consult with attending practitioners on whether a surrogate can consent to a DNR order, hospice care, or major treatments on a patient’s behalf. Surrogate decision-makers can also orally express a decision consenting to an order not to resuscitate by telling a PA. Previously only physicians and nurse practitioners could act as one of the two required witnesses to an oral decision. N.Y. Pub. Health Law §§ 2965 and 2994-g (McKinney 2022).
In Illinois, before a surrogate can consent to forgo life-sustaining treatment, a physician must consult with other healthcare workers to determine that an adult patient lacks decisional capacity. Like New York, Illinois now permits physicians to concur and consult with health care practitioners. Previously a physician was only allowed to concur with another physician on such matters. 755 Ill. Comp. Stat. Ann. 40/20 (2022).
These changes have expanded the roles of healthcare workers regarding surrogate decision-makers and their principals. As healthcare systems experience increased needs, having more healthcare workers who can tend to issues involving surrogates and their principals will help when decisions need to be made quickly.
America’s age demographics, family structures, and healthcare systems are evolving. As described above, several states have added and continued to amend their default surrogate statutes in ways that likely complement these changes. Default surrogate statutes can empower healthcare decision-makers, help define decision-making authority, and recognize changing demands on healthcare professionals. Since many of these statutes aim to widen the circle of healthcare decision-making, default surrogate states can help families avoid seeking guardianship for healthcare decisions in court. With increasing healthcare needs, expanding the roles of healthcare workers may help better support family members and close friends acting as decision-makers. As an aging America prepares for the future, default surrogate statutes can act as a useful safety net for adults without previously appointed healthcare decision-makers.
- Jonathan Vespa, The Graying of America, US.. Census Bureau (Oct. 8, 2019), https://www.census.gov/library/stories/2018/03/graying-america.html
- Tamara G. Fong, Samir R. Tulebaev & Sharon K. Inouye, Delirium in Elderly Adults: Diagnosis, Prevention and Treatment, 5 Nature Revs. Neurology 210, 210 (2009). https://doi.org/10.1038/nrneurol.2009.24
- Alzheimer’s Association, 2022 Alzheimer’s Disease Facts and Figures, 18 Alzheimer’s Dement 700, 711 -712 (2022). https://www.alz.org/media/documents/alzheimers-facts-and-figures.pdf