Who Makes Medical Decisions Without a Power of Attorney?

If an individual becomes incapacitated and does not have a medical power of attorney (POA), state law designates a surrogate decision maker—typically a spouse first, then adult children, followed by parents, siblings, and sometimes close friends. If no appropriate family member is available or if conflicts arise, the court will appoint a guardian. In emergencies, physicians may also act under the principle of implied consent to provide immediate care.

Legal Rules for Medical Decisions Without a POA

When no POA exists, the law directs that healthcare choices be made by those closest to the patient. For example:

• In Illinois, the Health Care Surrogate Act establishes a priority of decision makers, starting with the spouse, then adult children, parents, siblings, and lastly close friends.¹
  
• In Louisiana, La. R.S. 40:1159.4 similarly prioritizes spouses, followed by adult children, parents, and other relatives.²
  
• Many states have adopted rules similar to the Uniform Healthcare Decisions Act that allow a close friend to serve as a surrogate if family members are not available.

Additionally, healthcare providers must first confirm that the patient lacks “decisional capacity”—that is, the ability to understand and communicate medical choices—before default surrogates are involved.⁴

Who Steps In? The Surrogate Decision-Making Hierarchy

1. Family Members

State laws usually set out a clear hierarchy for default decision making:

• Spouse or Domestic Partner: Typically, a legally married spouse or designated domestic partner is first in line.
  
• Adult Children: When there is no spouse or if the spouse is unable or unwilling, an adult child is next. In states such as Illinois, a spouse’s decision overrides those of other family members unless unavailable or unwilling.¹
  
• Parents: In the absence of a spouse and adult children, the decision-making responsibility may pass to one or both parents.
  
• Adult Siblings: Siblings are considered if the above are not available.
  
• Grandchildren or Close Friends: In some jurisdictions, close friends can serve as the default surrogate if no one in the immediate family is available.

2. Court-Appointed Guardians

If there are no family members willing or able to serve or if disputes arise that cannot be resolved, the court may intervene and appoint a guardian. Although this process can delay decisions, it ensures that someone is legally authorized to act on behalf of the patient. For example, if the available family members cannot agree on a course of action, a petition to the court for guardianship may be necessary.⁵

3. Healthcare Providers in Emergencies

In critical emergencies, when no surrogate is immediately available, medical personnel will operate under the doctrine of implied consent. This means they assume that a reasonable person would consent to necessary life-saving treatment if capable of decision making.

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Default Decision Making: A Real-Life Example

A widely reported case in Oklahoma on December 1, 2024 illustrated the challenges when no clear proxy exists. High school principal Lynne Chesley had signed a living will stating that she did not want life-sustaining treatment. Despite this, she was kept on a feeding tube for over three years because her designated proxy—a sister—disputed her wishes. 

The Oklahoma Supreme Court reviewed the evidence, including the precise language in Chesley’s directive, and ruled in favor of her children who insisted on honoring her instructions. This case underscores the importance of clearly designated decision-makers and accessible advance directives to avoid prolonged disputes.

Expert Legal and Medical Insights

Dr. Catherine Auriemma of Penn Medicine explains:

“In the absence of a written directive, healthcare providers turn to the patient’s closest family—typically a spouse—to make decisions based on what they believe the patient would have wanted.”

Additionally, the D.C. Bar Pro Bono Center states:

“A power of attorney isn’t just a document—it’s a lifeline that ensures your voice is heard when you can’t speak for yourself.”⁶

These expert opinions emphasize that without a clear designation, family members or court-appointed guardians must step in—sometimes with difficult and time-consuming consequences.

Key Challenges Without a Medical POA

Family Conflicts

Disagreements among relatives (for example, between a spouse and adult children) can lead to delays in treatment or require court intervention, as seen in Chesley’s case.

Ethical Dilemmas

Sometimes, healthcare providers face challenges in balancing the urgency of treatment with uncertainties about the patient’s unexpressed wishes. Hospital ethics committees are often called in to help resolve these conflicts.

Legal Variability

State laws can differ:

• Texas may grant equal authority to all adult children.
  
• California includes domestic partners in its hierarchy.
  
• New York might require that a guardian be appointed if family disputes occur.

Understanding these variations is critical so that families and healthcare providers know what to expect in an emergency.

Why a Medical Power of Attorney Matters

Creating a medical POA or completing an advance directive is vital for several reasons:

• Clarity: Designate a trusted individual who understands your values, reducing uncertainty during a crisis.
  
• Prevention: Helps avoid delays and conflicts among family members and ensures that your medical care aligns with your wishes.
  
• Reduction of Disputes: Reduces the likelihood of costly and emotionally burdensome court interventions.

As highlighted by resources like Legal Nature and the National POLST, the presence of these documents can be the difference between smooth, timely care and a drawn-out legal battle.

Steps to Secure Your Medical Decision-Making

1. Consult Your State Law: Review your state’s rules. For Illinois, refer to the Health Care Surrogate Act; for Louisiana, see La. R.S. 40:1159.4.
   
2. Establish a POA: Create and execute a healthcare power of attorney or living will to ensure your wishes are followed.
   
3. Discuss Your Wishes: Talk openly with your family and the person you designate to make decisions on your behalf.
   
4. Store Documents Accessibly: Keep your advance directives in a place that is easily accessible by healthcare providers (e.g., with your primary care physician and family).
   
5. Review Regularly: Update your documents after major life changes like marriage or a significant health change.

For further guidance, Illinois residents can access free POA forms through Illinois Legal Aid, while the American Bar Association provides estate planning tools and state-specific legal resources nationwide.

Conclusion

Without a medical power of attorney, the responsibility for making healthcare decisions defaults to family members, then to court-appointed guardians, and finally, in emergencies, to healthcare providers under implied consent. State laws—such as Illinois’ Health Care Surrogate Act and Louisiana’s R.S. 40:1159.4—set a clear hierarchy to protect patient rights, though these processes can sometimes result in delays and conflicts. 

The case of Lynne Chesley in Oklahoma on December 1, 2024, shows the real-world impact of not having clear directives. Establishing a POA and discussing your wishes well in advance can prevent such difficulties and ensure that your personal choices guide your care.

References:

For additional information on advance directives and healthcare proxies, please visit the American Bar Association at www.americanbar.org or Legal Nature at www.legalnature.com.