Specification and Characteristics of Surrogate Decision Makers: A Comparison of US State Statutes

Abstract

SESSION TITLE: Palliative Care and End of Life SESSION TYPE: Original Investigation Slide PRESENTED ON: Monday, October 24, 2016 at 01:30 PM - 02:30 PM PURPOSE: Approximately 40% of medical inpatients and up to 95% of intensive care unit patients rely upon proxy decision makers. Each state has unique legislation governing decisions made for patients who do not have a durable power of attorney for healthcare or legal guardian. This introduces variability in the appointment and responsibilities of so-called “default surrogates.” Because patients often cross borders to obtain care, this heterogeneity hampers national discussion on the complex decisions surrounding end-of-life care. This systematic examination of legislative variation examines nationwide statutes governing surrogates. METHODS: Statutes addressing surrogate decision makers and end-of-life care were identified in parallel through two legal databases (LexisNexis, Fastcase), for each of the 50 states and the District of Columbia. All statutes analyzed were effective in their jurisdiction in March, 2016. RESULTS: Universally, the condition triggering a proxy to assume decisional authority is the patient’s lack of decisional capacity; however diversity exists among statutorily prescribed order (e.g. “chain”) for appointing “default surrogates.” Other states’ laws list no such order of kinship priority. 34 of 51 states require that surrogates’ appointment follow a designated hierarchical order, beginning with “spouse-child-parent” in 34/34 states but diverging thereafter. Only 4 states delineate a formal extrajudicial process by which interested parties may refute the surrogacy hierarchy. Statutes may call for a surrogate to demonstrate certain qualities such as capacity, availability, willingness to serve, familiarity with patient’s preferences, or may simply stipulate that the surrogate must have reached the age of majority. 14 states restrict health providers from serving as proxies unless they are family members. 3/51 provided no guidance on proxies’ appropriateness. CONCLUSIONS: States have diverse laws for appointing and characterizing surrogates for incapacitated patients, with particularly wide variability in prescribed hierarchy and appropriateness-to-serve criteria. CLINICAL IMPLICATIONS: Selection of a surrogate decision maker varies greatly depending on jurisdiction, with some states providing little or no legal framework for appointing a surrogate. This variability may impact efforts to support surrogates and clinicians confronting difficult discussions for vulnerable patients. DISCLOSURE: The following authors have nothing to disclose: Erin DeMartino, David Dudzinski, Cavan Doyle, Beau Sperry, Daniel Kramer, Daniel Sulmasy, Paul Mueller No Product/Research Disclosure Information