Who Decides When a Patient Can't? Statutes on Alternate Decision Makers.

Many patients cannot make their own medical decisions, having lost what is called decisional capacity. The estimated prevalence of decisional incapacity approaches 40% among adult medical inpatients and residential hospice patients1,2 and exceeds 90% among adults in some intensive care units.3,4 Patients who lack capacity may guide decisions regarding their own care through an advance directive, a legal document that records treatment preferences or designates a durable power of attorney for health care, or both. Unfortunately, the rate of completion of advance directives in the general U.S. population hovers around 20 to 29%,5-7 creating uncertainty about who will fill the alternate decision-maker role for many patients. There is broad ethical consensus that other persons may make life-and-death decisions on behalf of patients who lack decisional capacity. Over the past few decades, many states have enacted legislation designed to delineate decisionmaking authority for patients who lack advance directives.8 Yet the 50 U.S. states and the District of Columbia vary in their procedures for appointing and challenging default surrogates, the attributes they require of such persons, their priority ranking of possible decision makers, and dispute resolution. These differences have important implications for clinicians, patients, and public health. Patients often reside in one state and receive care in another, and about one fifth of U.S. physicians maintain medical licenses in multiple states.9 When faced with variable local statutes, health care systems that cross state lines may struggle to formulate uniform institutional policies regarding medical decision making for patients who lack decisional capacity, especially for end-of-life care. Clear consensus guidelines focused on life-sustaining interventions also rest in part on assumptions of nationally consistent parameters for decision making, which may not be supported by law.10 More broadly, examination of the variability in statutes may expose the ways in which patients and medical decisions may be treated differently in different jurisdictions. We therefore evaluated relevant statutes that we identified in parallel searches using two legal databases: LexisNexis and Fastcase. Search terms included “living will,” “advance directive,” “surrogate,” “health care decisions,” and “health care power of attorney.” Statutes pertaining to health codes, safety, insurance, and probate law were assessed through sequential, independent reviews. All analyzed statutes were effective in their jurisdictions as of March 31, 2016.