What it means
When a patient can't make medical decisions and never named a surrogate, this section supplies a proxy from a fixed list, in order: a judicially appointed guardian; the spouse; an adult child (or a majority of the adult children reasonably available); a parent; an adult sibling (or a majority); an adult relative who has shown special care and concern and kept regular contact; a close friend; then a licensed clinical social worker chosen through the provider's bioethics committee.
The proxy must decide as the patient would have decided; only with no indication of the patient's wishes may the proxy weigh the patient's best interest. Withholding or withdrawing life-prolonging procedures requires clear and convincing evidence that the patient would have made that choice.
- Order: guardian → spouse → adult child(ren) → parent → sibling(s) → involved relative → close friend → licensed clinical social worker.
- Multiple adult children or siblings act by a majority of those reasonably available for consultation.
- The relative tier requires special care and concern, familiarity with the patient's health, and regular contact.
- Decisions follow what the patient would have chosen; best interest applies only when there's no indication.
- Ending life-prolonging procedures needs clear and convincing evidence of the patient's own choice.
How it plays out
This is the statute running in the ICU when a family calls us before any probate exists. Two patterns repeat. Blended families: the spouse outranks adult children from a first marriage, and the children are stunned to learn a majority of them can't outvote her. And deadlock: three adult children, no spouse, split two-to-one — the statute's majority rule resolves it, but nobody enjoys learning the math at a bedside. A signed §765.202 designation would have replaced this whole list with one chosen name, which is the advice we give at every planning meeting.
Where this shows up
Pages on this site where § 765.401 does real work:
Questions people ask
