Who has the highest authority to make medical decisions when a patient lacks capacity, such as a legal guardian, healthcare proxy, or legal next of kin?

Hierarchy of Medical Decision-Making Authority for Incapacitated Patients

The answer varies by state, but when present, a healthcare proxy (also called agent, attorney, or representative under a health and welfare Lasting Power of Attorney) has the highest authority, followed by a court-appointed guardian/conservator, and then default surrogates (typically next of kin) in states with surrogacy statutes. 1

Primary Decision-Making Authority: Healthcare Proxy/Agent

A healthcare proxy designated through a durable power of attorney for health care or health and welfare Lasting Power of Attorney (LPA) takes precedence over all other decision-makers when the patient lacks capacity. 1 This person was specifically chosen by the patient while they had capacity to make decisions on their behalf. 1

Critical Limitations to Note:

• The healthcare proxy can only act once the patient has actually lost capacity for that specific decision. 1
• The proxy must review the LPA document itself, as it may specify limits to their authority, particularly regarding life-sustaining treatment decisions. 1
• Enduring Powers of Attorney (EPA) only cover financial matters and cannot make healthcare decisions. 1

Secondary Authority: Court-Appointed Guardian/Conservator

When no healthcare proxy exists, or when the proxy cannot fulfill their role, courts may appoint a guardian, conservator, or conservator of the person (terminology varies by state). 1 Court-appointed deputies can make some healthcare decisions depending on their appointment terms, but can never refuse life-sustaining treatment. 1

Tertiary Authority: Default Surrogates (State-Dependent)

In states with default surrogacy statutes, when no advance directive or durable power of attorney exists, a hierarchy of family members is empowered to make decisions. 1 A typical ordering is:

1. Spouse (if available)
2. Adult child
3. Parent
4. Sibling
5. Friend 1

Critical State Variation:

Not all U.S. states have default surrogacy statutes. 1 In states without such statutes, if a patient lacks capacity and has no healthcare agent, court appointment of a guardian becomes necessary. 1

When No Surrogate Exists: Independent Mental Capacity Advocate

If the patient lacks capacity for serious medical treatment and no family members or close friends are available, consultation with an Independent Mental Capacity Advocate (IMCA) should be sought. 1 However, this requirement should not delay necessary emergency care. 1

Important Distinction: Legal Next of Kin vs. Healthcare Proxy

Legal next of kin do not automatically have authority to make medical decisions unless they fall within the state's default surrogacy statute or have been appointed as healthcare proxy. 1 Family members must be consulted when considering best interests, but failure to consult should not compromise emergency care. 1

The Treating Physician's Role

When a patient lacks capacity and has no valid surrogate, the treating physician makes treatment decisions based on the patient's best interests, not family preference. 1 Best interests encompass medical factors, the patient's previously expressed values and beliefs, general well-being, and spiritual/religious welfare. 1

Common Pitfalls to Avoid:

• Do not assume spouses or adult children automatically have decision-making authority—they only have authority if designated as healthcare proxy or recognized under state default surrogacy laws. 1
• Do not confuse financial powers of attorney with healthcare decision-making authority—they are legally distinct. 1
• Do not delay emergency treatment waiting for surrogate identification—proceed based on best interests when treatment is urgent. 1
• Always verify whether advance directives exist that might refuse proposed treatment, as valid advance decisions must be honored. 1