Article Figures & Data
Tables
State Effort Required to Find Decision-Maker Effort Required to Confirm Identity and Role Alabama15 “reasonable inquiry” If more than one claimant, county circuit court will decide Alaska16 “reasonably available” “A supervising health care provider may require an individual claiming the right to act as a surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.” Arizona17 “reasonable effort” Not specified by statute Arkansas18 “reasonably available” Not specified regarding proxies. Regarding surrogates: “In the event of a challenge to the designation of the surrogate or the authority of the surrogate to act, it is a rebuttable presumption that the selection of the surrogate was valid . . . . A person who challenges the selection of the surrogate has the burden of proving the invalidity of that selection by a preponderance of evidence.” California “if possible”19; “reasonable efforts”20
“Notwithstanding any other provision of law, within 24 hours of the arrival in the emergency department of a general acute care hospital of a patient who is unconscious or otherwise incapable of communication, the hospital shall make reasonable efforts to contact the patient’s agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient. A hospital shall be deemed to have made reasonable efforts, and to have discharged its duty under this section, if it does all of the following:
(1) Examines the personal effects, if any, accompanying the patient and any medical records regarding the patient in its possession, and reviews any verbal or written report made by emergency medical technicians or the police, to identify the name of any agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient.
(2) Contacts or attempts to contact any agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient . . . .
(3) Contacts the Secretary of State directly or indirectly, including by voice mail or facsimile, to inquire whether the patient has registered an advance health care directive with the Advance Health Care Directive Registry, if the hospital finds evidence of the patient’s Advance Health Care Directive Registry identification card either from the patient or from the patient’s family or authorized agent . . . . (b) The hospital shall document in the patient’s medical record all efforts made to contact any agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make health care decisions on behalf of the patient. (c) Application of this section shall be suspended during any period in which the hospital implements its disaster and mass casualty program, or its fire and internal disaster program.20“A health care provider or health care institution acting in good faith and in accordance with generally accepted health care standards applicable to the health care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for any actions in compliance with this division, including, but not limited to, any of the following conduct: (a) Complying with a health care decision of a person that the health care provider or health care institution believes in good faith has the authority to make a health care decision for a patient, including a decision to withhold or withdraw health care. (b) Declining to comply with a health care decision of a person based on a belief that the person then lacked authority. (c) Complying with an advance health care directive and assuming that the directive was valid when made and has not been revoked or terminated.”21 Colorado22 “reasonable efforts to locate as many interested persons as practicable, and the attending physician or advanced practice nurse may rely on such individuals to notify other family members or interested persons” “Interested persons who are informed of the patient's lack of decisional capacity shall make reasonable efforts to reach a consensus as to who among them shall make medical treatment decisions on behalf of the patient. The person selected to act as the patient's proxy decision-maker should be the person who has a close relationship with the patient and who is most likely to be currently informed of the patient's wishes regarding medical treatment decisions. If any of the interested persons disagrees with the selection or the decision of the proxy decision-maker or, if, after reasonable efforts, the interested persons are unable to reach a consensus as to who should act as the proxy decision-maker, then any of the interested persons may seek guardianship of the patient by initiating guardianship proceedings . . . . Only said interested persons may initiate such proceedings with regard to the patient.” Connecticut Life support: “Within a reasonable time prior to withholding or causing the removal of any life support system . . . the attending physician or advanced practice registered nurse shall make reasonable efforts to notify the individual's health care representative, next-of-kin, legal guardian, conservator or [designee], if available.”23 If contested, determination to be rendered by probate court.24 Delaware25 “Reasonably available,” which is defined as “readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient’s health-care needs.” “A supervising health-care provider may require an individual claiming the right to act as a surrogate for a patient to provide a written declaration under the penalty of perjury stating facts and circumstances sufficient to establish the claimed authority.” District of Columbia26 “reasonably available, mentally capable and willing to act” Not specified by statute. Florida “Reasonably available” defined as “readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient’s health care needs.”27 “A written designation of a health care surrogate executed pursuant to this section establishes a rebuttable presumption of clear and convincing evidence of the principal’s designation of the surrogate”28 Georgia “any available health care agent known to the health care provider”29 “in good faith”30 Hawaii31 “reasonably available” defined as “able to be contacted with a level of diligence appropriate to the seriousness and urgency of a patient's health care needs, and willing and able to act in a timely manner considering the urgency of the patient's health care needs.” “A supervising health care provider shall require a surrogate to provide a written declaration under the penalty of false swearing stating facts and circumstances reasonably sufficient to establish the claimed authority.” Idaho Not specified by statute “in good faith”32; “no emergency medical services personnel, health care provider, facility, or individual employed by, acting as the agent of, or under contract with any such health care provider or facility shall be civilly or criminally liable or subject to discipline for unprofessional conduct for acts or omissions carried out or performed in good faith pursuant to the directives in a facially valid POST form, living will, DNR order or other health care directive . . . .”33; “written consent, in the absence of convincing proof that it was secured maliciously or by fraud, is presumed to be valid for the furnishing of such care, treatment or procedures”34 Illinois35 “any available health care agent” “in good faith” Indiana36 “reasonably available” “in good faith” Iowa37 “available and willing to make health care decisions” “The decision is made by an attorney in fact who the health care provider believes in good faith is authorized to make the decision” Kansas38 Not specified by statute “in good faith” Kentucky “reasonably available, willing, and competent to act”39 “An independent investigation of a surrogate's authority shall not be necessary unless a person is in possession of information as to the surrogate's disqualification.”40 Louisiana41 “reasonably available, willing, and competent to act”; “When no contact persons are included in the individual's records, in order to justify a finding that none of the authorized persons . . . are reasonably available, the patient's attending physician shall document the following in the patient's record: (a) That he or a representative of the attending physician or facility has inquired of, or has made a documented good-faith effort to inquire of, the following entities regarding the existence of any advance directive made by the patient and the availability of information that would enable the physician to contact any [of a list of potential decision-makers], (i) The Louisiana Secretary of State's Living Will Registry. (ii) The patient's primary care physician or any known provider of medical treatment or services received by the patient in the previous one hundred and eighty days. (iii) Any known facility in which the patient has resided in the last one hundred and eighty days. (b) That no advance directive or other information that would enable the physician to contact an authorized individual to consent is available. (2) When names of potentially authorized persons are listed in the individual's records or are obtained through efforts under this Subsection, in order to justify a finding that none of the authorized persons listed . . . are reasonably available, the patient's attending physician shall document in the patient's record the name of each potentially authorized person that he or a representative of the physician or facility attempted to contact, the manner and date of the attempted contact, and the result of the attempted contact.” “No hospital or other health care facility, physician, health care provider, or other person or entity shall be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as to the issue of consent only, based upon the reliance in good faith on any direction or decision by any person reasonably believed to be authorized and empowered to consent” Maine42 “reasonably available”; Maine also places a duty upon the surrogate to “communicate the surrogate's assumption of authority as promptly as practicable to the members of the patient's family . . . who can be readily contacted.” “A supervising health care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.” Maryland43 Determine whether agent is “unavailable”; unavailable is defined as: “(i) after reasonable inquiry, a health care provider is unaware of the existence of a health care agent or surrogate decision-maker; (ii) after reasonable inquiry, a health care provider cannot ascertain the whereabouts of a health care agent or surrogate decision-maker; (iii) a health care agent or surrogate decision-maker has not responded in a timely manner, taking into account the health care needs of the individual, to a written or oral message from a health care provider; (iv) a health care agent or surrogate decision-maker is incapacitated; or (v) a health care agent or surrogate decision-maker is unwilling to make decisions concerning health care for the individual.” “in good faith” to be decided by “preponderance of the evidence” standard Massachusetts44 Statutory grounds for use of alternate proxy: “. . . when the designated health care agent is not available, willing or competent to serve and the designated health care agent is not expected to become available, willing or competent to make a timely decision given the patient’s medical circumstances.” Physician (among others) may commence “a special proceeding in a court of competent jurisdiction” to “determine the validity of the health care proxy” and “have the agent removed on the ground that the agent is not reasonably available, willing and competent to fulfill his or her obligations under this chapter or is acting in bad faith . . . .” Michigan Not specified by statute. The statute merely states that when health care is recommended in cases of reduced life expectancy, the physician must “orally inform the . . . surrogate”45 “A person providing, performing, withholding, or withdrawing care, custody, or medical or mental health treatment as a result of the decision of an individual who is reasonably believed to be a patient advocate and who is reasonably believed to be acting within the authority granted by the designation is liable in the same manner and to the same extent as if the patient had made the decision on his or her own behalf.”46 Minnesota47 “Reasonably available” defined as “able to be contacted and willing and able to act in a timely manner considering the urgency of the principal's health care needs.” “A health care provider or health care agent may presume that a health care directive is legally sufficient absent actual knowledge to the contrary. A health care directive is presumed to be properly executed, absent clear and convincing evidence to the contrary. A health care agent, and a health care provider acting pursuant to the direction of a health care agent, are presumed to be acting in good faith, absent clear and convincing evidence to the contrary . . .”; “the health care provider believes in good faith that the health care agent is acting in good faith.” Mississippi48 “Reasonably available” defined as “readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs.” The surrogate has a duty to “communicate his or her assumption of authority as promptly as practicable to the members of the patient's family . . . who can be readily contacted.” “A supervising health-care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.” Missouri49 Not specified by statute “A third person, if acting in good faith, may rely and act on the instruction of and deal with the attorney in fact acting pursuant to the authority granted in a power of attorney for health care without liability . . . .” Montana50 “An attending health care provider or the provider's designee shall make reasonable efforts to locate and notify as many interested persons as practicable to inform them of the patient's lack of decisional capacity and ask that a lay proxy decision-maker be selected for the patient . . . . The attending health care provider may rely on interested persons contacted by the provider or the provider's designee to notify other family members or interested persons.” Not specified by statute Nebraska “Reasonably available” defined as “readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of an individual's health care needs.”51 “No health care provider shall be required to accept health care decisions from an attorney in fact until such health care provider has received a signed original or a photostatic copy of a signed original power of attorney for health care.”52
“No attending physician or health care provider acting or declining to act in reliance upon the decision made by a person whom the attending physician or health care provider in good faith believes is the attorney in fact for health care shall be subject to criminal prosecution, civil liability, or professional disciplinary action.”53
“Health care providers shall be entitled to assume the validity of a power of attorney for health care executed in this state until given actual notice to the contrary.”54
“(8) A primary health care provider may require a person claiming the right to act as surrogate for an individual to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish that person's claimed authority.”51Nevada No requirement to check whether a patient has a registered advance directive.55 No other statutory requirement. “in good faith”56 New Hampshire “is available upon reasonable inquiry”57; in cases of DNR orders, agent must be unavailable “and the facility has made diligent efforts to contact the agent without success”58 "in good faith” defined as “honesty in fact in the conduct of the transaction concerned”59 New Jersey “The attending physician shall make an affirmative inquiry of the patient, his family or others, as appropriate under the circumstances, concerning the existence of an advance directive”60 “in good faith”61 New Mexico “reasonably available” defined as “readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs”62 “in good faith”63 New York64 “Reasonably available” defined as “a person to be contacted can be contacted with diligent efforts by an attending physician, another person acting on behalf of an attending physician, or the hospital.” Referral to ethics committee if “any person on the surrogate list objects to the designation of the surrogate . . . .” North Carolina Not directly specified, but form allows for alternative agent if health care agent is not “reasonably available” 65 “Any physician or other health care provider involved in the medical care of the principal may rely upon the authority of the health care agent contained in a signed and acknowledged health care power of attorney in the absence of actual knowledge of revocation of the health care power of attorney.”66 North Dakota67 Not directly specified, but form allows for alternative agent if “health care agent is not reasonably available” “in good faith” to be decided by “clear and convincing evidence” standard. Ohio “Make a good faith effort, and use reasonable diligence, to notify the appropriate individual or individuals . . . .”68 “. . . the attending physician, in good faith, believes that the attorney in fact is authorized to make the decision.”69 Oklahoma70 Not specified in statute “In the absence of knowledge to the contrary, a physician or other health care provider may presume that an advance directive complies with the Oklahoma Advance Directive Act and is valid.” Not otherwise addressed by statute. Oregon “unavailable to make timely health care decisions for the principal,” defined as “not available to answer questions for the health care provider in person, by telephone or by another means of direct communication.”71 “Health care providers are entitled to assume the validity and enforceability of an advance directive if the directive on its face is in compliance with [the statute and . . . the provider has not been given notice of a suspension, reinstatement, revocation, superseding document, disqualification, withdrawal, dispute or other legal infirmity raising a question as to the validity or enforceability of the directive.”72 Pennsylvania "Reasonably available” defined as “readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the individual's health care needs”73 No physician liability for “complying with a direction or decision of an individual who the health care provider believes in good faith has authority to act as a principal's health care agent or health care representative so long as the direction or decision is not clearly contrary to the terms of an advance health care directive that has been delivered to the provider.”74 Rhode Island75 Not specified in statute With regard to MOLST forms: “A physician or health care provider or emergency medical services personnel may presume, in the absence of actual notice to the contrary, that a declaration complies with the requirements of this chapter and is valid.” Not otherwise specified in statute. South Carolina “good faith efforts”; “Documentation of efforts to locate a decision-maker . . . must be recorded in the patient's medical record.”76 “in good faith”77 South Dakota In absence of proxy, a physician may turn to a “person available to consent,” defined as “any person who is authorized to make a health care decision for an incapacitated person and whose existence is known to the health care provider and who, in the good faith judgment of the health care provider, is reasonably available for consultation and is willing and competent to make an informed health care decision” chosen from a list of a patient’s relatives or a close friend.78 “in good faith”79 Tennessee Standard for contacting decision-maker: “if possible”80; standard for choosing surrogate: “reasonably available” defined as “readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health care needs. Such availability shall include, but not be limited to, availability by telephone.”81 “A health care provider or institution acting in good faith and in accordance with generally accepted health care standards applicable to the health care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for . . . [c]omplying with a health care decision of a person apparently having authority to make a health care decision for a patient, including a decision to withhold or withdraw health care . . . . A person identifying a surrogate . . . is not subject to civil or criminal liability or to discipline for unprofessional conduct for such identification made in good faith.82 Texas Must conduct a “diligent search” to find agent or certain surrogates; if cannot be found then must make decisions in concurrence with nearest relative “if available.”83 “good faith” when decision-maker holds medical power of attorney; statute does not otherwise specify84 Utah “Reasonably available” defined as “readily able to be contacted without undue effort” and “willing and able to act in a timely manner considering the urgency of the circumstances.” Allows for “default surrogate” when “an agent is not able, available, or willing to make decisions for an adult.”85
Utah also places a duty upon the surrogate to “communicate the surrogate's assumption of authority as promptly as practicable to the members of a class who: (a) have an equal or higher priority and are not acting as surrogate; and (b) can be readily contacted.”86“If reasonable doubt exists regarding the status of an adult claiming the right to act as a default surrogate, the health care provider may . . . require the person to provide a sworn statement giving facts and circumstances reasonably sufficient to establish the claimed authority; or seek a ruling from [a] court . . . .”86 Vermont “Reasonably available” defined as “able to be contacted with a level of diligence appropriate to the seriousness and urgency of a principal's health care needs, and willing and able to act in a timely manner considering the urgency of the principal's health care needs.”87
In matters related to life-sustaining treatment: “if the surrogate designated by the patient is not reasonably available or is unwilling to serve, then the patient's clinician shall make a reasonable attempt to notify all reasonably available interested individuals of the need for a surrogate . . . .”88Specific to life-sustaining treatment and DNR orders: “A health care provider shall honor in good faith an out-of-state DNR order, orders for life sustaining treatment, or out-of-state DNR identification if there is no reason to believe that what has been presented is invalid.”89 Virginia Physician may follow guidance of low-ranked surrogates “if not aware of any available” of higher rank.90 act “in good faith”91 Washington92 “reasonable efforts to locate and secure authorization” Not specified by statute West Virginia93 “The attending physician or advanced nurse practitioner shall reasonably attempt to determine whether the incapacitated person has appointed a representative under a medical power of attorney, in accordance with the provisions of section four of this article, or if the incapacitated person has a court appointed guardian in accordance with the provisions of article one, chapter forty-four-a of this code. If no representative or court-appointed guardian is authorized or capable and willing to serve, the attending physician or advanced nurse practitioner is authorized to select a health care surrogate . . . . If the surrogate becomes unavailable for any reason, the surrogate may be replaced . . . .” Circuit or supreme court of appeals decides in cases of dispute. “There shall be a rebuttable presumption that the selection of the surrogate was valid and the person who is challenging the selection shall have the burden of proving the invalidity of that selection.” Wisconsin94 No liability “if the health care facility or health care provider has made a reasonable attempt to contact the health care agent and obtain the decision but has been unable to do so.” “In the absence of actual notice to the contrary, a health care facility or health care provider may presume that a principal was authorized to execute the principal's power of attorney for health care . . . that the power of attorney for health care instrument is valid.” Wyoming95 "Reasonably available” defined as “able to be contacted with a level of diligence appropriate to the seriousness and urgency of a patient's health care needs and willing and able to act in a timely manner considering the urgency of the patient's health care needs” “A primary health care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.” DNR = do-not-resuscitate order
MOLST = Medical Orders for Life-Sustaining Treatment
