Who makes medical decisions if you have no power of attorney?

Most of us assume that if we ended up in the hospital, unable to talk, the person who knows us best would speak for us. Maybe the friend who drives you to appointments. Maybe the niece you call every Sunday.

That only happens for certain if you've named them. If you haven't, the law has its own answer. This page explains how that answer works in Washington, as part of our larger guide to who decides for you when you can't.

Who makes medical decisions if there's no power of attorney?

When an adult can't give informed consent, Washington doctors turn to RCW 7.70.065. It sets a strict order of people who may consent for you:

1. A court-appointed guardian.
2. A health care agent you named in a durable power of attorney.
3. Your spouse or state registered domestic partner.
4. Your adult children.
5. Your parents.
6. Your adult brothers and sisters.
7. Adult grandchildren who are familiar with you.
8. Adult nieces and nephews who are familiar with you.
9. Adult aunts and uncles who are familiar with you.
10. A close friend who meets set conditions and signs a sworn declaration.

If you never signed a medical power of attorney, step two is empty. The decision falls to whoever is next.

The doctor has to look up the list first

The provider must make reasonable efforts to find someone in the highest group that exists for you. Only if nobody in that group can be reached may they move down a step.

There's an important limit, too. If someone higher on the list refuses to consent, nobody lower down can step in and say yes instead.

Everyone in the same group must agree

Say the decision falls to your three brothers and sisters. The statute says that all of them who are available must agree.

If two say yes and one says no, nobody in that group can consent. Loving families stall this way more often than you'd think, usually because each person is guessing at what you'd want.

Can a close friend decide for me?

In Washington, yes, but only last, and only with paperwork. Your friend has to show special care and concern for you, know your values, and be reasonably available. Then she signs a declaration under penalty of perjury.

The declaration says she's a close friend, willing and able to be involved, and in regular contact with you. It also says she knows of nobody higher on the list who is willing and able to decide. It lasts up to six months.

Some people can't use this route at all. The statute rules out your physician and their employees, and anyone paid to provide your care. It also rules out owners and staff of the facility where you live or get care.

And the hospital doesn't have to accept the declaration. It may rely on it, but it isn't required to.

How is the decision supposed to be made?

Whoever ends up deciding isn't meant to pick what they'd want for themselves. The statute tells them to work out, in good faith, whether you would consent if you could.

Only if they can't tell what you'd want may they decide based on your best interests. That's why written wishes matter so much. A health care directive and a few pages of notes make that first question much easier to answer.

Can the hospital talk to my friend or family at all?

Yes, within limits. The federal HIPAA privacy rule lets a provider share information with family or a close personal friend involved in your care (45 CFR 164.510).

If you can't agree or object, the provider uses professional judgment about whether sharing is in your best interest. Even then, they share only what's directly relevant to that person's part in your care.

Being told what's happening is different from having authority to consent. A friend can be kept informed and still have no legal right to decide.

What if nobody on the list can decide?

Sometimes the list runs dry. Relatives can't be found, disagree, or don't want the job. Then the usual path is a guardianship case under chapter 11.130 RCW.

A judge can appoint a guardian for an adult only on clear and convincing evidence, after notice and a hearing (RCW 11.130.265). That takes time, and the person appointed may be a professional guardian you've never met.

Even here, your writing helps. When choosing a guardian, the court gives priority to someone you nominated. A nomination in a power of attorney counts, and it ranks ahead of a spouse or relatives (RCW 11.130.305).

Other states use different lists

Washington's list is one example. Most states have their own default order, and they vary a lot. Some put a close friend on the list, some don't, and a few have no general list at all.

Our state-by-state table of default decision-maker laws shows each one. For a closer look at how the different "next of kin" lists play out, read your legal next of kin, in order.

What a medical power of attorney changes

A medical power of attorney puts the person you choose in the second spot on that list. Only a court-appointed guardian ranks higher. And under RCW 11.130.335, a guardian can't revoke it, and your health care agent's decisions take precedence unless a court orders otherwise.

In Washington, a power of attorney must be signed before a notary or two qualified witnesses (RCW 11.125.050). It also needs wording that keeps it working if you become incapacitated, because a Washington power of attorney ends at incapacity without it (RCW 11.125.040).

A typical case

Here is a typical case, a composite. Linda is 69, divorced, with a grown son in Germany and a younger sister in Ohio. Her friend Dee lives three doors down and has a key.

After a fall, Linda is sedated for several days. Without a medical power of attorney, her son comes first, and the hospital spends a day reaching him across nine time zones.

With one naming Dee first and her son second, Dee is at the bedside that afternoon. She's holding Linda's written wishes, and she calls Linda's son after each talk with the doctors.

Choosing who to name

Pick someone who will follow your wishes even when they'd choose differently. Then name a backup, in case your first choice is traveling or unwell on the day.

If the people you'd ask are far away or your own age, a professional can serve in the role or sit behind them as backup. A standby fiduciary is one way to arrange that. Kinly's membership, for example, includes a medical power of attorney written for your state, and Trella Trust Company can be named first or as backup.

The slower version of this problem, when memory fades over years, is its own question. We cover it in dementia before anyone is named to help.

Common questions

Who makes medical decisions if I'm single with no kids?

In Washington, after any guardian or health care agent, the order skips to your parents, then adult siblings. Next come adult grandchildren, nieces and nephews, and aunts and uncles who know you. A close friend comes last.

Can my doctor decide for me if nobody else can?

Not under Washington's consent list. The statute lists relatives, a guardian, a health care agent and a close friend, and it bars your physician from qualifying as that friend. If nobody can consent, the usual route is court guardianship.

Does my unmarried partner have any say?

Washington's list names a spouse or state registered domestic partner. A partner who is neither isn't on it by that title, though they might qualify as a close friend at the end of the list. A medical power of attorney is the surest way to put them first.

What happens in an emergency if nobody can be reached?

Emergency treatment rules are separate from this list and aren't covered here. The list matters most for the decisions that follow, such as surgery, ongoing treatment and where you go after the hospital.

Is a living will enough on its own?

Not quite. A living will (Washington calls it a health care directive) records your wishes about life-sustaining treatment.

It doesn't name a person to speak for you on every other decision. Most people want both.

Sources

• RCW 7.70.065: Informed consent, persons authorized to provide for patients who do not have capacity
• 45 CFR 164.510: Uses and disclosures requiring an opportunity to agree or object (HIPAA)
• Chapter 11.130 RCW: Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act
• RCW 11.130.265: Basis for appointment of guardian for adult
• RCW 11.130.305: Who may be guardian for adult, order of priority
• RCW 11.130.335: Guardian's authority and powers of attorney
• RCW 11.125.040: Power of attorney, termination at incapacity unless durable
• RCW 11.125.050: Power of attorney, execution requirements