Surrogates

When a person is incapable of making health care decisions, another person may act as an informal substitute (surrogate). In the absence of a court-appointed guardian, a living will, or a durable power of attorney for health care, the health care team must turn elsewhere. Some states have regulations or statutes that direct the choice of who should fill this role. When this is not the case, the team generally accepts a person, agreed upon by everyone involved (such as family members), who has a relationship that might provide insight into the older person's values and preferences. This person, who becomes a surrogate without formal legal empowerment, may be a spouse, an adult child, a sibling, or, in some cases, even a parent.

A surrogate may be asked to provide consent to treat the incapacitated older person. However, a surrogate who refuses treatment on behalf of the older person, when members of the health care team feel that treatment is in the person's best interest, is likely to be challenged. This is especially so if the surrogate is a distant relative or a friend. If health care practitioners have reason to doubt the surrogate's ability to make decisions based on the person's preferences and values, they are more likely to seek court involvement to name a guardian. But this process is rarely invoked because it is cumbersome, costly, and slow, often leaving the person in a decision-making limbo.