Default Healthcare Surrogate Laws - Last Four States

Almost all U.S. jurisdictions have statutes specifying who is a legally authorized healthcare decision maker when the patient lacks capacity and has no available appointed agent or guardian. These decision makers are referred to as "default surrogates."  

But four states (Massachusetts, Minnesota, Missouri, and Rhode Island) have no such laws. Among other things, this significantly exacerbates the problem of unrepresented patients.

Missouri aims to fill the gap in its law in 2025 with S.B. 356.. This legislation would establish the Designated Health Care Decision-Maker Act. Designated health care decision-makers could be selected from the following persons listed by priority:

1. The spouse of the patient
2. An adult child of the patient
3. A parent of the patient
4. An adult sibling of the patient
5. A grandparent or adult grandchild
6. The niece or nephew or the next nearest relative
7.  A religious person who is a member of the patient's community
8. Any nonrelative with a close personal relationship who is familiar with the patient's values
9.  A person unanimously agreed upon by those in the priority list

Exclusions: Priority shall not be given to those listed if abuse or neglect is reported, the person with priority cannot be reached by the physician, or if the probate court finds that the person with priority is making decisions contrary to the patient's instructions. Furthermore, this act does not prevent any person interested in the patient's welfare, a health care provider, or a health care facility from petitioning the probate court for the appointment of a guardian.

Surrogate Duties: A designated health care decision-maker shall make reasonable efforts to obtain information regarding the patient's health preferences and make decisions in the patient's best interests. Additionally, a designated health care decision-maker may only authorize the withdrawal or withholding of nutrition or hydration supplied through either natural or artificial means in certain situations as specified in the act.

Regain Capacity: Once a health care decision-maker or physician believes that the patient is no longer incapacitated then the patient shall be reexamined. If the patient's physician determines that the patient is no longer incapacitated, then the physician shall certify the decision and the basis therefor in the patient's medical record and shall notify the patient, the designated health care decision-maker, and the person who initiated the redetermination of capacity. Rights of the designated health care decision-maker shall cease upon the physician's certification that the patient is no longer incapacitated.

Immunity: This act further provides that no health care provider or health care facility that makes reasonable efforts to locate and communicate with potential designated health care decision-makers shall be liable for the effort to identify and communicate with a potential designated health care decision-maker.

Conscience Based Objections: Additionally, a health care provider or health care facility may decline to comply with the decision of a health care decision-maker if the decision is contrary to the religious beliefs or moral convictions of the provider or facility. If a health care provider declines to comply with a health care decision of the designated health care decision-maker, no health care provider or health care facility shall impede the transfer of the patient to another provider or facility willing to comply with the health care decision.