Resources

Surrogate Medical Decision-Making and the LGBT Community

Surrogate medical decision-making refers to the legal procedures that are triggered by the mental incapacity of a patient and their subsequent inability to direct the course of their own medical treatment. Two major aspects of surrogate medical decision-making are advance healthcare directives and default state laws that select a surrogate when an incapacitated patient lacks an advance healthcare directive.

 

Advance Healthcare Directives

An advance healthcare directive is an individual healthcare instruction or a power of attorney for healthcare. Common names for types of advance healthcare directives include healthcare powers of attorney, durable powers of medical attorney, healthcare proxies and living wills. Advance healthcare directives honor the right of a competent individual to control the course of their medical care in all circumstances, as well as the corollary right to designate another person to make these choices in the event of the individual’s mental incapacity.

 

Default Surrogate Selection Law

In the event that no appointed guardian or advance healthcare directive exists, default medical decision-making law provides a mechanism for the selection of a surrogate medical decision-maker. These laws contain prioritized lists of individuals who are best situated to control the course of medical care for incapacitated patients. One persistent and critical difference between legal jurisdictions in this area is the composition of the priority lists. A substantial number of states allow for the use of a “close friend” category of individuals. This category typically falls at the bottom of the prioritized list. In contrast, many other states make no provision for the “close friend” category of individuals, and instead restrict their priority list membership only to those related to the patient by blood or marriage.