Who is the surrogate decision-maker for an incapacitated individual when there is a disagreement between a long-term partner and an estranged family member?

Who is the Surrogate Decision-Maker?

The surrogate decision-maker is determined by state-specific statutory hierarchies, which typically prioritize a spouse or domestic partner first, followed by adult children, then parents, siblings, and close friends—meaning the long-term partner would generally have priority over an estranged daughter unless state law or specific circumstances dictate otherwise. 1, 2

Understanding the Legal Framework

The identification of the appropriate surrogate follows a structured legal hierarchy that varies by state:

• Most states follow a default surrogate priority list where a current spouse or domestic partner is typically the first choice, followed by adult children, parents, siblings, and then close friends 1, 2, 3
• State laws vary considerably in how they define and recognize different relationships, with some states not formally recognizing domestic partners or close friends when family members are available 1
• Clinicians are often unfamiliar with these state-specific laws, which creates confusion in exactly these situations 1

Key Principle: Relationship Quality Matters

The "estranged" nature of the daughter is legally and ethically significant:

• Family members who know and care about the patient are preferred over those who are estranged or uninvolved, as they are more likely to know the patient's values and preferences 1
• Nearly 10% of patients select non-relatives as their healthcare agents when given the choice, suggesting that legal relationship alone should not be the sole determinant 1
• Clinicians should involve individuals who know and care for the patient, even when state law may narrowly construct who can officially serve as surrogate 1

Practical Steps to Resolve This Conflict

1. Search for Advance Directives First

• Check for any durable power of attorney for health care or advance directive that may have designated a specific surrogate 1
• Review health records, personal effects, and social services records for documentation of the patient's wishes 1

2. Assess Who Actually Knows the Patient

• Determine which party has recent, meaningful involvement in the patient's life and is more likely to know his current values and preferences 1
• Document the nature and duration of each relationship, including when the daughter was last involved in the patient's care 1
• The long-term partner likely has more current knowledge of the patient's values if the daughter has been estranged 1

3. Consult Your State's Specific Statute

• Review your state's default surrogate hierarchy to determine the legal priority 1, 2, 3
• Some states recognize domestic partners while others do not, which directly impacts legal authority 1
• Legal authority does not always align with ethical appropriateness—the person with legal authority may not be the person who best knows the patient 1

4. Engage Ethics Consultation

• When disagreement exists between potential surrogates, involve the hospital ethics committee to help clarify decision-making authority and resolve conflict 1, 2
• Ethics consultation can help navigate situations where state law is too narrowly constructed to recognize the most appropriate surrogate 1

Critical Pitfalls to Avoid

• Do not assume blood relation automatically trumps a long-term partner—state law and the quality of the relationship both matter 1
• Do not allow the loudest or most demanding party to become the de facto surrogate without proper legal and ethical assessment 1
• Do not proceed with major decisions until surrogate authority is clarified, as this creates significant risk of treatment inconsistent with the patient's values 1
• Do not ignore the partner's input even if the daughter has legal priority—the partner may serve as an important "adviser" even if not the official "decider" 1

When No Clear Resolution Exists

If the conflict cannot be resolved through ethics consultation and state law is ambiguous:

• Court appointment of a guardian may be necessary when no appropriate surrogate can be identified or when surrogates fundamentally disagree 1, 2
• Institutional decision-making committees should be used rather than allowing treating clinicians to make ad hoc decisions 1
• Delay non-emergent decisions when possible to allow time for proper legal clarification 1

The Bottom Line for This Case

In most jurisdictions, the long-term partner would have priority over an estranged daughter, but you must verify your specific state statute. 1, 2 The estrangement is ethically significant because the partner is more likely to know the patient's current values and preferences. 1 However, if state law gives the daughter legal priority despite the estrangement, you should still involve the partner as an adviser and consider ethics consultation to ensure decisions align with the patient's actual values rather than the daughter's preferences. 1