Surrogate Decision Making
If a person is incapacitated and no advance directive exists, some other person or persons must provide direction in decision making. A surrogate can be a person designated by state law as a health care decision maker or an informally identified person, such as a close family member or close friend who happens to be available.
Most hospitals and doctors accept consent to provide care from a spouse, a sibling, or an adult child, or even from a distant or uninvolved relative who can be reached in a crisis, although in many states none of these people has the legal right to consent on a person's behalf without being appointed by a court. Many hospitals will limit these selections to relatives and will ignore or exclude close friends. Accepting the judgment of a close relative or friend over that of a distant relative or total stranger, however, makes practical and ethical sense. People without family or close friends who are alone in the hospital are far more likely to receive a court-appointed guardian.
The surrogate, once identified, much like the agent named in a durable power of attorney for health care, bases a decision on one of three standards, in the following order of importance:
- The instructions expressed by the person such as in a living will or orally when the person was still capable of making decisions
- Inferences about what the person would likely want in a particular situation based on what is known about his prior behavior and his patterns of decision making
- What the surrogate and health care team believe is in the person's best interest (which is resorted to when the person's wishes and values are not known).
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