What is a health care surrogate?

A health care surrogate is appointed by your doctor or by an advanced nurse practitioner if you become unable to make your own health care decisions but have not previously executed a document such as a medical power of attorney or a living will, or a court has not appointed a guardian for you. The surrogate can make any necessary health care decisions for you if you are incapacitated and is given the same access to your medical records as you would have. The surrogate can make decisions related to your placement in a nursing home, applying for Medicaid, and withholding or withdrawal of life-prolonging intervention. 

Surrogates are chosen according to a prioritized list. Spouses are considered first, then adult children, parents, adult siblings, adult grandchildren, and close friends. Using this list and other criteria, the physician selects the best-qualified person. These criteria include the person’s demonstrated concern, contact with you, and proximity. Please note, however, that if you are in a non-traditional relationship, your partner may not be recognized as the surrogate. To avoid the potential of your partner being left out of the decision making process, it is best that you designate that person as your Medical Power of Attorney. 

The surrogate makes decisions without a court order or judicial involvement. The surrogate is legally required to make health care decisions in accordance with your wishes including your religious and moral beliefs. If your surrogate does not know what your wishes are and cannot find out using reasonable efforts, then he/she must make decisions he/she thinks are in your best interests. The surrogate can make decisions about autopsy, organ donation, and tissue donation after your death. If you have a living will or a medical power of attorney stating your wishes regarding autopsy or the desire to make an anatomical gift, or have done so using a donor card or driver’s license, the surrogate must follow your wishes. However, without a written directive, the surrogate must make these important decisions on your behalf for you. 

For more information, see: W. Va. Code §§ 16-30-6 to -9 (2015); http://www.wvendoflife.org (last visited May 29, 2015).