Recent Updates to Default Surrogate Statutes

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.