The person named in the advance directive to be the health care agent is a surrogate decision maker. If an individual has not appointed an agent, or the agent is not available, then § 5-605(a)(2) establishes an order of priority to determine who shall act as surrogate:
1. A guardian if one is appointed;
2. Patient’s spouse;
3. Adult child of patient;
4. Parent of patient;
5. Adult brother or sister of patient; or
6. A friend or other relative of patient meeting specific requirements
If the surrogate is a friend or other relative, he or she must submit an affidavit to the attending physician stating specific facts and circumstances demonstrating that the person has maintained regular contact with the patient sufficient to be familiar with the patient’s activity, health, and personal beliefs. § 5-605(a)(3). This affidavit is to be included in the patient’s medical record.
If persons of equal decision-making priority disagree about health care decisions and the disabled person is in a hospital or related institution, the attending physician is to refer the case to the institution’s patient advisory committee and the physician may act in accordance with the recommendation of the committee. § 5-605(b)(1).