Default Surrogates - When May Hospitals Designate Them?

A case pending before the U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of Mississippi could have major implications for how hospitals designate default surrogates, the most common type of substitute decision maker for incapacitated patient. 

When Mark Stanford was admitted to a nursing home, his brother signed the admissions paperwork as his surrogate. Stanford was later injured in a fire. When the family filed a lawsuit against the nursing home, it moved to enforce the arbitration agreement. The family alleged the agreement was invalid because Stanford’s brother did not have authority to sign it. Because Stanford’s son (a higher priority surrogate) was available, his brother lacked authority. The U.S. District Court for the Southern District of Mississippi agreed. 

On appeal the parties dispute whether healthcare providers must take affirmative steps to ensure that no higher priority individual is reasonably available. Must they search and eliminate the availability of higher-class surrogates (e.g., a son) before recognizing the authority of a lower-class surrogate (e.g., a brother)? The U.S. Court of Appeals certified this question to the Mississippi Supreme Court which has not yet ruled. 

Because Mississippi adopted the Uniform Health Care Decisions Act, this case could have significant nationwide implications for how default surrogates may be recognized.