Clinical Pearls & Morning Reports

Published April 12, 2017


What are some of the differences in the required attributes for alternate decision makers among the 50 states and the District of Columbia?

Despite widespread ethical agreement on the importance of respect for persons and patient autonomy in making medical decisions, laws governing clinical decision making for incapacitated patients vary widely according to jurisdiction. DeMartino et al. evaluated the legislation designed to delineate decision-making authority for patients who lack advance directives in the 50 states and the District of Columbia to highlight their differences.

Clinical Pearls

Q: What proportion of the general U.S. population has completed an advance directive?

A: Unfortunately, the rate of completion of advance directives in the general U.S. population hovers around 20 to 29%, creating uncertainty about who will fill the alternate decision-maker role for many patients.

How many statutes allow for the appointment of a default surrogate?

A person who assumes decisional authority without having been appointed through the judicial system or prospectively authorized by the patient at a time when he or she had decisional capacity is a “default surrogate.” DeMartino et al. found that 41 jurisdictions include a provision for appointment of a default surrogate for at least some health decisions, thereby legally recognizing the decisional authority of default surrogates and providing a safety net for incapacitated patients without advance directives.

Morrning Report Questions

Q: What are some of the differences in the required attributes for alternate decision makers among the 50 states and the District of Columbia?

A: DeMartino et al. use “alternate decision maker” to refer to any person participating in decision making for an incapacitated patient, regardless of whether he or she was appointed by the court, the patient (in an advance directive), or a default-surrogate statute. Required attributes for alternate decision makers vary substantially among statutes. DeMartino et al. note disagreement regarding the need to demonstrate qualities such as decisional capability, availability, willingness to serve, and familiarity with the patient’s preferences. Thirty jurisdictions require that alternate decision makers demonstrate the ability to engage in complex medical decision making. However, no state comments on the manner in which a physician would assess such a quality in an alternate decision maker, since that person is not the physician’s patient. Thirty-six states indicate that the alternate decision maker should be “willing to act,” though none clarify how “willingness” should be determined. Some statutes list but do not define attributes such as “reasonably available,” whereas others include multiple paragraphs outlining requirements such as frequency of contact with the patient before and during the incapacitating illness and availability to meet in person with health care providers.

Q: What are some of the differing provisions regarding legislated “surrogacy ladders”?

A: Legislation regulating default-surrogate consent in many states sets forth a hierarchical priority list of persons to serve as decision makers, which DeMartino et al. call a “surrogacy ladder.” In the 35 states that establish a surrogate hierarchy, the highest-priority classes always include spouse, child, and parent, though 8 states also insert partner or “chosen adult” on or immediately below the first ladder rung. Whereas some ladders recognize institutional mechanisms for decision making (appointing a physician or group of physicians, a social worker, or a hospital ethics committee), others list only family members, sometimes even going so far as to stipulate that surrogates be related within the second (Missouri) or third (Wisconsin) degree of kinship or affinity. With regard to same-sex relationships, seven states provide for a partner or common-law spouse to occupy one of the top rungs, displacing first-degree relatives in the priority order, and one state (Arizona) lists unmarried “domestic partner” in fourth priority. Twenty-three statutes allow a friend, often defined as an “interested person” (e.g., Arizona) or “an adult who has exhibited special care and concern” (e.g., Alaska) to occupy a low rung.

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