State law in the area of default surrogate decision-makers remains a patchwork that can make the implementation of policies that ensure equal treatment of LGBTQ+ patients and their families difficult. Nationally, LGBTQ+ individuals face a confusing default surrogate-selection landscape that can be classified loosely into a Three-Tiered System.

• Tier 1 States offer some type of legal relationship recognition to LGBTQ+ couples. The surrogate priority lists in these relationship recognition states place a same-sex spouse/domestic partner on equal footing as a similarly situated different-sex couple. (See our state map of marriage equality and other relationship recognition laws for the most current information on relationship recognition in your state).
  • Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, West Virginia, Washington, Wisconsin, Wyoming.
• Tier 2 States use surrogate priority lists which include the “close friend” category of individuals as a possible selection for surrogate.
  • Florida, Georgia, Mississippi, North Dakota, South Dakota, Tennessee.
• Tier 3 States use surrogate priority lists which do not include the “close friend” class of individuals.
  • Alabama, Arkansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Ohio, South Carolina, Texas.

Default Surrogate-Selection Policy Recommendations, By Tier:

A healthcare facility’s obligations to advance equal treatment of LGBTQ+ families in the context of incapacitated decision-making policy are as follows:

• Tier 1: “LGBTQ+-Inclusive” Surrogate-Selection States: Hospitals located in Tier 1 States should monitor relationship recognition law, incorporating it into any existing hospital policies. For example, hospitals located in these states should update existing surrogate-selection priority lists to include newly recognized relationships (e.g. same-sex marriage, domestic partnerships, and civil unions) at the appropriate surrogate priority level.
• Tier 2: “Second Class Status” Surrogate-Selection States: Hospitals located in Tier 2 States should review current protocol relating to the selection of surrogates. Particular attention should be paid to situations involving the obvious existence of a same-sex significant other who satisfies the “close friend” category of individuals. Procedures should be in place to assist providers in efficiently proceeding through a priority list when a same-sex significant other is the most knowledgeable person to make healthcare decisions on behalf of the incapacitated patient. For example, many default surrogate-selection statutes require the “close friend” individual to file an affidavit attesting to their close relationship with the incapacitated patient, under penalty of perjury. Hospitals in Tier 2 States should have form affidavits for this purpose available on file and readily accessible for these situations.
• Tier 3: “Legal Stranger Status” Surrogate-Selection States: Hospitals located in Tier 3 States should educate LGBTQ+ individuals as to the consequences of Tier 3 State surrogate-selection law. Because many LGBTQ+ individuals remain unaware of these state law distinctions, hospitals located in Tier 3 States should specifically target LGBTQ+ individuals for education on the importance of advance healthcare directives near the point of patient intake.

More Information:

• Surrogate Medical Decision-Making and the LGBTQ+ Community

Updated November 14th, 2014