Can Next of Kin Make Medical Decisions If You Have No Health Care Proxy?

The short answer: it depends on which state you are in, and in two of the three states covered here the answer is less reassuring than most families assume. New York has a statute, the Family Health Care Decisions Act, that names who decides for a hospital or nursing home patient without a health care proxy, starting with a court-appointed guardian, then a spouse or domestic partner, then an adult child. New Jersey has no such law for treatment decisions. Doctors there generally consult the family, but no one in the family has legal authority, and a disagreement or a difficult decision can force a guardianship proceeding. Connecticut likewise has no general surrogate statute; its law tells physicians to consult next of kin about withdrawing life support but leaves the decision with the physician, and anything more requires a conservator.

A health care proxy, called a proxy directive in New Jersey and an appointment of health care representative in Connecticut, replaces all of that uncertainty with a person you chose. This article explains what happens in each state when there is no proxy, how a proxy works, and how to put one in place.

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What Happens in an Emergency?

In a true emergency, treatment does not wait for anyone’s consent. Emergency physicians treat an unconscious patient under the doctrine of implied consent, on the assumption that a reasonable person would want life-saving care. The question of who decides arises once the emergency has passed: whether to continue a ventilator, whether to operate, whether to place a feeding tube, whether to move to hospice, whether to consent to a risky procedure or decline it. Those are the decisions that require a legally authorized decision-maker, and the three states answer the question differently.

New York: The Family Health Care Decisions Act

Since 2010, New York’s Public Health Law Article 29-CC has provided a statutory answer. Under section 2994-d, when an adult patient in a hospital, nursing home, or hospice lacks decision-making capacity and has no health care agent, one person from the following list, in order of priority, becomes the surrogate:

1. A guardian authorized to make health care decisions under Article 81 of the Mental Hygiene Law
2. The spouse, if not legally separated, or the domestic partner
3. An adult son or daughter
4. A parent
5. An adult brother or sister
6. A close friend

The surrogate must decide according to the patient’s wishes, “including the patient’s religious and moral beliefs,” or, if those are unknown, the patient’s best interests. Withholding or withdrawing life-sustaining treatment is permitted only in defined circumstances: the patient is terminally ill or permanently unconscious and treatment would be an extraordinary burden, or the patient has an irreversible or incurable condition and treatment would be inhumane or extraordinarily burdensome, in each case with a second physician’s concurrence. In a nursing home, an ethics review committee must review such decisions, and in a hospital the committee reviews them if the attending physician objects to withdrawing nutrition or hydration.

Two limits matter. The Act applies only in hospitals, nursing homes, and hospice, so a surrogate has no statutory authority over decisions made in a doctor’s office or at home. And under section 2994-b, before relying on a surrogate the practitioner must make reasonable efforts to determine whether the patient has a health care agent, whose decisions “shall have priority over decisions by any other person.” The Act is a safety net beneath the proxy, not a substitute for it.

New Jersey: No Default Surrogate Law

New Jersey is one of a handful of states with no statute naming who may make treatment decisions for an incapacitated adult who has no advance directive. The only priority list in New Jersey law is in N.J.S.A. 26:14-5, and it applies solely to consent for participation in medical research. For ordinary treatment, there is no legal next of kin.

In practice, New Jersey hospitals and nursing homes turn to the family and act on a consensus, and for routine decisions that works. It stops working when the family disagrees, when a decision is significant enough that the facility wants legal cover, or when no family is available. At that point the only source of authority is a court. Under N.J.S.A. 3B:12-24.1, the Superior Court may appoint a general guardian for a person found incapacitated and “without capacity to govern himself or manage his affairs,” or a limited guardian for a person who can do some but not all of the tasks of self-care, with the judgment specifying which areas of decision-making, such as medical, the guardian controls. Guardianship requires a complaint, two physician or psychologist certifications, a court-appointed attorney for the alleged incapacitated person, and a hearing. It takes weeks at best, costs thousands of dollars, and strips the person of rights that a proxy directive would have left intact.

New Jersey’s Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 and following, is the alternative the Legislature built. A proxy directive names a health care representative. Under N.J.S.A. 26:2H-59 and 26:2H-60, the directive becomes operative when it is given to the attending physician or institution and the attending physician determines in writing that the patient lacks capacity to make the particular decision, with that determination confirmed by a second physician unless the incapacity is clearly apparent and the representative agrees confirmation is unnecessary. Under N.J.S.A. 26:2H-61, the representative then “shall have authority to make health care decisions on behalf of the patient,” and if a guardian is later appointed for the patient, the representative “shall retain legal authority to make health care decisions” unless the court’s order says otherwise. A proxy directive, in other words, outranks a later guardianship.

Connecticut: Next of Kin Are Consulted, Not Empowered

Connecticut also lacks a general default surrogate statute. Its closest provision, General Statutes section 19a-571, addresses only the withdrawal of life support. It protects a physician who withholds or removes life support from an incapacitated patient in a terminal condition or permanent unconsciousness, provided the physician “has considered the patient’s wishes.” In determining those wishes, when there is no living will, the physician must consult any statement the patient made directly and, “if available, the patient’s health care representative, the patient’s next of kin, the patient’s legal guardian or conservator,” any person the patient designated under the state’s designation statute, and anyone else to whom the patient communicated wishes. The family is a source of evidence about the patient’s wishes. The decision remains the physician’s, and if the patient is not terminal or permanently unconscious, treatment “must be provided.”

For everything else, Connecticut relies on two instruments. The first is the appointment of a health care representative under section 19a-576, signed before two adult witnesses, neither of whom may be the representative. The second is a conservatorship from the Probate Court. Under section 19a-580e, a conservator must comply with the conserved person’s health care instructions and wishes expressed while competent, and a health care representative’s decisions take precedence over a conservator’s absent a court order. Disputes about a representative’s capacity or conduct go to the Probate Court under section 19a-580c.

Health Care Proxy vs. Next of Kin: What Is the Difference?

A next of kin is whoever the law or the hospital treats as your closest relative. A health care proxy is a document in which you choose your decision-maker. The differences that matter:

• Choice. The proxy lets you name a partner you never married, a trusted friend, or the one child who can handle it. Default rules, where they exist, follow bloodlines.
• Authority. In New Jersey and Connecticut, next of kin have no legal authority to consent to or refuse treatment. A representative does.
• Setting. New York’s surrogate law covers hospitals, nursing homes, and hospice. A health care agent’s authority follows you everywhere.
• Scope. New York limits a surrogate’s power to refuse life-sustaining treatment to defined medical circumstances. An agent named in a proxy, instructed in the document, has broader latitude to carry out your wishes.
• Tiebreaking. Two adult children have equal standing as next of kin. One named agent ends the argument.

Common Questions

Can a health care proxy override the patient? No. In all three states the agent’s authority begins only when a physician determines the patient lacks capacity. New York’s section 2981(4) says the authority “shall commence upon a determination” of incapacity, and New Jersey’s section 26:2H-59 is to the same effect. While you can decide for yourself, you do.

Can a financial power of attorney make medical decisions? Not in New Jersey. A durable power of attorney under N.J.S.A. 46:2B governs property and finances, and medical authority comes only from a proxy directive under the Advance Directives Act. Our article on the types of power of attorney in New Jersey explains the two documents.

Can a legal guardian make medical decisions? Yes. A New Jersey general guardian, or a limited guardian whose judgment includes medical decisions, may. A New York Article 81 guardian with health care authority is first on the surrogate list. A Connecticut conservator of the person may, subject to the conserved person’s prior instructions and to any health care representative. In every state, a guardian is the expensive fallback for someone who did not sign a proxy.

Can a spouse make medical decisions? In New York, yes, as the second-priority surrogate. In New Jersey and Connecticut, a spouse has no more legal authority than any other relative without a proxy, though facilities will usually defer to a spouse in practice until there is a dispute.

Can an emergency contact make medical decisions? No. An emergency contact is someone to call. Decision-making authority comes from a proxy, a surrogate statute, or a court.

How Do You Put a Health Care Proxy in Place?

Each state has its own execution rule, and each is simple:

• New Jersey. Under N.J.S.A. 26:2H-56, the proxy directive must be signed and dated by the declarant either in the presence of two adult witnesses who attest that the declarant is of sound mind and free of duress, or acknowledged before a notary public, attorney, or other person authorized to administer oaths. The named representative may not be a witness.
• New York. Under Public Health Law section 2981, the health care proxy must be signed and dated in the presence of two adult witnesses, who also sign and declare that the principal appeared to sign willingly and free from duress. The agent may not be a witness.
• Connecticut. Under section 19a-576, the appointment must be signed and dated in the presence of two adult witnesses, who also sign. The representative may not witness, and an operator or employee of a hospital or nursing home where the person is a patient may not serve unless related to the person.

The document should name an alternate, state your wishes about life-sustaining treatment, artificial nutrition, and organ donation, and be paired with a HIPAA authorization so the representative can see your records. Give copies to your doctor, the representative, and the alternate. Our article on whether someone with dementia can sign legal documents addresses the capacity needed to sign one, which is the reason not to wait.

Plan Well. Live Better.

A health care proxy is the shortest document in an estate plan and the one most likely to be needed. At Milvidskiy Law Group, we prepare health care directives for every client, and we help families who are already facing a medical decision without one. Learn more about our estate planning services.

This article is for general informational purposes only and does not constitute legal or medical advice. Reading it does not create an attorney-client relationship. The statutes described were verified in September 2026 against the New Jersey Statutes, the New York Public Health Law, and the Connecticut General Statutes; hospital policies and the law itself may change, and both should be confirmed before relying on them.