Family as Decision-Makers

The U.S. Supreme Court in its Cruzan ruling recognizes the appropriateness of families having primacy in decision-making for the incompetent, but denies that this primacy is guaranteed by the Constitution. Rather, it is rooted in common law. Some states have statutes defining the concept of family for purposes of surrogate decision-making. For example, ‘family’ can be legally defined as an individual’s living spouse, adult children, parents, and adult siblings. If the individual has no living spouse, adult children, parents or adult siblings, or none of these persons are available and/or willing to participate in treatment decisions, then ‘family’ may include the individual’s next of kin. In surrogate decision-making situations, health care providers should look for general agreement among those included within an individual’s family before implementing the family’s treatment decision. A few states have adopted statutes that specify a hierarchy of authority among the patient's next of kin for those circumstances where a surrogate decision-maker has not been appointed by the patient. (Source: K. Reed of Dykema-Gossett, Detroit, Michigan, 1995.)

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