The application of health care surrogate laws to older populations: how good a match?

Objective: The Health Care Surrogate Act (HCSA) in Illinois has been proposed as a model for state laws naming surrogate medical decision-makers for those without advance directives (ADs). Our objective was to determine if the HCSA identifies the same surrogate as older persons would choose for themselves. If not, is the discrepancy between legally identified surrogate and preferred surrogate troublesome to respondents? Because it is documented that black Americans have a variety of family structures, some of which may not be reflected in the HCSA list, we also wished to determine if discrepancies between surrogates named by the law and those desired by patients are associated with black or white race.
Design, Setting and Participants: A convenience sample of 144 patients aged 65 and older, without cognitive impairment, was interviewed at the geriatrics clinic of an academic medical center.
Main Outcome Measures: Respondents without ADs who had a different stated choice for surrogate medical decision-maker than the surrogate defined by the Illinois HCSA, based on their existing family.
Results: Twenty-six percent of respondents without ADs chose a surrogate that differed from the surrogate defined by the HCSA. However, 67% of those with a different choice for surrogate than defined by law were not troubled by the discrepancy. The proportion of black subjects (25%) and white subjects (31%) who had surrogate discrepancies was not significantly different (P = .6).
Conclusion: Because the Illinois HCSA named surrogates who would be agreeable to the majority of our respondents, it appears that it may be a useful model for state surrogacy laws.