Utah Default Surrogate Decision Maker: Who Decides Without an Advance Directive

A 58-year-old Utah man has a massive stroke. He never signed an advance directive. His wife wants comfort care only. His adult son demands every possible intervention. Utah law supplies a default-surrogate hierarchy, and the provider generally follows the majority within a priority class.

Utah law does provide a fallback system. Under the Uniform Health Care Decisions Act (Utah Code Title 75A, Chapter 9), when an incapacitated patient has no advance directive and no agent or authorized guardian is reasonably available, a default surrogate hierarchy determines who makes medical decisions.

In this example, if the wife is reasonably available, the spouse class has higher priority than the adult-child-or-parent class.

The Surrogate Priority Order

Utah's statutory surrogate list follows this priority (Utah Code § 75A-9-111):

1. An adult you identified, other than in a power of attorney for health care, to make health care decisions for you
2. Spouse
3. Adult child or parent
4. Cohabitant
5. Adult sibling
6. Adult grandchild or grandparent
7. An adult who routinely assisted you with supported decision making during the preceding six months
8. An adult stepchild whom you actively parented during the stepchild's minor years and with whom you have an ongoing relationship
9. An adult who has exhibited special care and concern for you and is familiar with your personal values
10. In a health care institution, a designated physician may act if no qualifying person can be identified and located after the required ethics consultation

The provider generally follows the majority within the highest-priority available class. An evenly divided class is governed by other Utah law; a continuing even split is not described as an automatic court tiebreaker.

What Happens When Surrogates Disagree

The real problem is not the hierarchy itself — it is what happens when two or more people at the same priority level disagree. If three adult children cannot agree on a treatment plan, the provider generally follows the majority. If the priority class remains evenly divided, other Utah law governs and further legal process may be necessary.

Why the Surrogate System Falls Short

The surrogate hierarchy was designed for clear-cut situations: a married patient with one spouse who can make decisions. It breaks down quickly in common real-world scenarios:

Blended families. A second spouse and adult children from a first marriage may have fundamentally different views on treatment. The spouse holds priority, but children often contest that authority.

Estranged relationships. An adult child who has not spoken to a parent in years still holds higher priority than a devoted friend or caregiver who has been managing daily care.

Unmarried partners. A cohabitant may qualify under its own priority class. A trusted friend or caregiver who does not qualify as a cohabitant may be considered under one of the other qualifying-adult categories.

Multiple children with different values. Three adult children share the adult-child-or-parent priority class. The provider generally follows the majority; if the class remains evenly divided, other Utah law governs.

How an Advance Directive Solves This

Naming a single healthcare agent in an advance directive eliminates the surrogate hierarchy entirely. Your chosen agent has exclusive authority to make medical decisions, regardless of what other family members want.

You can also include specific treatment instructions — your living will preferences — so your agent has documented guidance rather than guessing what you would have wanted.

An advance directive does not require an attorney, costs nothing to execute under Utah law (one witness, no notary), and can be completed electronically with remote video witnessing under HB 181.

The alternative — unresolved disagreement within a priority class — may require further legal process during a medical crisis.

The Utah Advance Directive & Living Will Kit walks you through naming a healthcare agent, setting treatment preferences, and distributing the document to your medical providers so the surrogate hierarchy never applies.

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