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Default Surrogacy laws are a Band-Aid, not a Cure

This column first appeared in the San Antonio Express News on September 27, 2016. 

Dear Mr. Premack: My elderly sister, who is widowed, has recently been hospitalized. My wife and I (and our children) are her only living relatives. We have looked through her home to finds any legal documents, especially a Medical Power of Attorney, but have not located them. She may not have ever seen an attorney. Is there a way that I can assist with her medical care short of becoming her court-appointed Guardian? – NR

In these limited circumstances, people need to call on their state’s Surrogate Consent Statute. Our book Thinking Beyond Tomorrow, discusses among many other issues, Advance Directives and Surrogate Consent Statutes. Here is an except that answers your question:

As of 2014, most state legislatures have adopted a Default Surrogate Consent Statute to control who can provide informed consent for an incapacitated adult. Default Surrogate Consent Statutes (DSCS) serve two purposes. First, the DSCS facilitates rapid access to informed consent. Second, the DSCS alleviates the need for Guardianship in most medical scenarios. In many cases, this removes the burden from the courts and reduces the amount of time necessary to find a surrogate which can save patient’s lives.

Default surrogacy laws do not require any action by the patient. They come into effect immediately when a doctor decides the patient cannot provide their own medical consent. Once that decision is made, the patient’s surrogate steps in to provide informed consent on the patient’s behalf.

The Texas Consent to Medical Treatment Act (CMTA) serves well as a model Default Surrogate Consent Statute. The CMTA provides a list of state-selected surrogates who may give informed consent for an incapacitated patient. They are, in order of priority and availability:

  1. The patient’s spouse;

  2. The patient’s children. A sole child may act if they have written permission from the other children to act alone. If the children have not selected a representative, medical decisions will be made by majority vote among the children;

  3. The patient’s parents, if still living;

  4. Someone the patient “clearly identified” before becoming ill;

  5. Any other living relative; and

  6. Any member of the clergy, whether or not you know that person.

If the patient lacks next-of-kin, their legal proxy is increasingly remote and the statute’s last resort is a clergy member (i.e., staff clergy at the hospital.) The clergy member may never have met the patient, and the CMTA does not take into account the patient’s faith and that it may be different from the available clergy, or that the patient may be an atheist or agnostic. Thankfully, the clergy provision of the CMTA is unique among state DSCS. No other state allows a member of the clergy to provided informed consent for an incapacitated patient.

You are her nearest next-of-kin, so the Texas CMTA will allow you to make her medical decisions, without Guardianship, while she is institutionalized. The law no longer applies if she recuperates enough to return home, in which case it is best for her to consult with her attorney to actively select an agent with a Medical Power of Attorney.


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