Volume 23, Number 1, Spring 2012

Legal Briefing: The Unbefriended: Making Healthcare Decisions

for Patients without Surrogates (Part 1)


Thaddeus Mason Pope and Tanya Sellers


The Journal of Clinical Ethics 23, no. 1 (Spring 2012): 84-96.


This issue’s “Legal Briefing” column covers recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the “single greatest category of problems” encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia.

            Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most providers are “muddling through on an ad hoc basis.” Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two define the problem of medical decision making for the unbefriended. The remaining 12 categories describe different solutions to the problem. The first six of these solutions are discussed in this article (Part 1). The last eight solutions will be covered in the Summer 2012 issue of JCE (Part 2).

1.         Who are the unbefriended?

2.         Risks and problems of the unbefriended

3.         Prevention: advance care planning, diligent searching, and careful capacity assessment

4.         Decision-making mechanisms and standards

5.         Emergency exception to informed consent

6.         Expanded default surrogate lists: close friends

7.         Private guardians

8.         Volunteer guardians

9.         Public guardians

10.        Temporary and emergency guardians

11.        Attending physicians

12.        Other clinicians, individuals, and entities

13.        Institutional committees

14.        External committees

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