ABA Family Legal Guide

The Rights of Older Americans

A Right to Control Your Own Affairs

Health-Care Decision-Making Issues

What happens if I do not have an advance directive?

If you have not planned ahead by executing an advance directive, many states have family consent (or health surrogate) statutes that authorize someone else, typically family members in the order of kinship, to make some or all health-care decisions for you. Even in the absence of such statutes, most doctors and health facilities routinely rely on the consent of family members, as long as they are close family members and no controversial decisions need to be made.

However, without an advance directive, decisions may not be made the way you would want them, or by the person you would want to make them. Making an advance directive also benefits your family members, because it spares them the agony of having to guess what you would really want.

If no close family or other surrogate is available to make decisions for you, a court-appointed guardian may be necessary. This is an option of last resort.