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Healthcare Equality Index: Default Surrogate Selection Laws

State law in the area of default surrogate decision-makers remains a patchwork that can make the implementation of policies that ensure equal treatment of LGBT patients and their families difficult. Nationally, LGBT individuals face a confusing default surrogate-selection landscape that can be classified loosely into a Three-Tiered System.

  • Tier 1 States offer some type of legal relationship recognition to LGBT couples. The surrogate priority lists in these relationship recognition states place a same-sex spouse/domestic partner on equal footing as a similarly-situated different-sex couple.
    • California, Colorado, Connecticut, District of Columbia, Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Oregon, Vermont, Washington
  • Tier 2 States use surrogate priority lists which include the “close friend” category of individuals as a possible selection for surrogate.
    • Alaska, Arizona, Delaware, Florida, Idaho, Illinois, Mississippi, New York, North Dakota, Pennsylvania, South Dakota, Tennessee, Utah, West Virginia, Wisconsin, Wyoming
  • Tier 3 States use surrogate priority lists which do not include the “close friend” class of individuals.
    • Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, Texas, Virginia

Default Surrogate-Selection Policy Recommendations, By Tier:

A healthcare facility’s obligations to advance equal treatment of LGBT families in the context of incapacitated decision-making policy are as follows:

  • Tier 1: “LGBT-Inclusive” Surrogate-Selection States: Hospitals located in Tier 1 States should monitor relationship recognition law, incorporating it into any existing hospital policies. For example, hospitals located in these states should update existing surrogate-selection priority lists to include newly recognized relationships (e.g. same-sex marriage, domestic partnerships, and civil unions) at the appropriate surrogate priority level.
  • Tier 2: “Second Class Status” Surrogate-Selection States: Hospitals located in Tier 2 States should review current protocol relating to the selection of surrogates. Particular attention should be paid to situations involving the obvious existence of a same-sex significant other who satisfies the “close friend” category of individuals. Procedures should be in place to assist providers in efficiently proceeding through a priority list when a same-sex significant other is the most knowledgeable person to make healthcare decisions on behalf of the incapacitated patient. For example, many default surrogate-selection statutes require the “close friend” individual to file an affidavit attesting to their close relationship with the incapacitated patient, under penalty of perjury. Hospitals in Tier 2 States should have form affidavits for this purpose available on file and readily accessible for these situations.
  • Tier 3: “Legal Stranger Status” Surrogate-Selection States: Hospitals located in Tier 3 States should educate LGBT individuals as to the consequences of Tier 3 State surrogate-selection law. Because many LGBT individuals remain unaware of these state law distinctions, hospitals located in Tier 3 States should specifically target LGBT individuals for education on the importance of advance healthcare directives near the point of patient intake.

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