Medical Decision-Makers

Hierarchy for Consent to Medical Treatment

  • Adult Patient with Decision-Making Capacity: patient must be >18 y/o and able to understand the nature and consequences of the decisions
  • Written/Verbally-Appointed Surrogate Decision-Maker: per California Probate Code 4711-4717, this appointment is effective only for the duration of hospital stay or illness (with a max duration: 60 days)
  • Durable Power of Attorney for Health Care Decision (DPOA)/Advance Health Care Directive-Appointed Surrogate Decision-Maker
  • Conservator
  • Court-Appointed Surrogate Decision-Maker
  • Closest Available Relative: no statutory hierarchy exists, as this is determined by case law (it is advised to choose the person who is most familiar with the patient’s values, demonstrates concern for the patient, had regular contact prior to the illness, is available to visit and make decisions, and is able to understand the information and engage in meaningful contact)
    • Spouse/Domestic Partner
    • Adult Child
    • Parent
    • Adult Sibling
    • Grandparent
    • Adult Aunt/Uncle
    • Adult Niece/Nephew
  • Multi-Disciplinary Committee: authorized for skilled nursing facilities

Emergency Exception

  • When Patient Lacks Medical Decision-Making Capacity and Emergency Treatment is Required to Prevent Death/Disability or Alleviate Severe Pain and Surrogate Decision-Maker Cannot Be Contacted: emergency treatment may proceed
    • Treatment is limited to that which is necessary to treat the emergency and cannot include treatment that has been previously validly refused

Surrogate Decision-Makers Experience Adverse Bereavement Outcomes

  • Study of Communication Strategy with Surrogate Medical Decision-Makers [MEDLINE]
    • Surrogate medical decision-makers experience anxiety and depression 90 days after the patient’s death
    • A bereavement intervention (proactive approach to communication, brochure on bereavement) significantly decreased post-traumatic stress disorder (PTSD)-related symptoms/anxiety/depression in surrogate medical decision-makers
  • Systematic Review (2011) [MEDLINE]: 33% of surrogate medical decision-makers experience adverse bereavement outcomes which last for months-years (apart from the normal bereavement process)


  • Consent Requirements for Medical Treatment of Adults. California Hospital Association ( Link
  • A communication strategy and brochure for relatives of patients dying in the ICU. N Engl J Med 2007;356:469-478 [MEDLINE]
  • Systematic Review: The effect on surrogates of making treatment decisions for others. Ann Intern Med 2011;154:336-346 [MEDLINE]