Default Health-Care Surrogate Priority in Hawaii

At a glance

Requirements one by one

When the default route opens

A person is presumed capable of making health-care decisions and of designating or disqualifying a surrogate (§ 327E-11). A patient may personally tell the supervising provider whom to use. If no designated person is reasonably available, the primary physician’s lack-of-capacity finding opens the surrogate route for an adult or emancipated minor when no agent or guardian is appointed or reasonably available (§ 327E-5(a)–(b)).

Care or setting covered

The chapter covers care affecting physical or mental health and lists providers, institutions, tests, surgery, medication, resuscitation orders, and nutrition among health-care matters (§ 327E-2). The surrogate rule itself does not confine ordinary selection to a particular hospital or care facility.

Guardian or appointed agent

A guardian or agent who is appointed and reasonably available keeps the § 327E-5(b) default route closed. A guardian appointed under chapter 560 prevails over an agent in a conflicting health-care decision unless a court orders otherwise (§ 327E-6(b)).

Family and other interested people

“Interested persons” includes a spouse unless legally separated or estranged, a reciprocal beneficiary, an adult child, either parent, an adult sibling or adult grandchild, and an adult who has shown special care and concern and knows the patient’s values (§ 327E-2). The physician or designee reasonably seeks as many as practicable and tells those located that a surrogate should be selected (§ 327E-5(b)–(c)). The list defines who joins the selection process; it does not give the first named relative automatic authority.

Decision within one class

The interested persons make reasonable efforts to agree who will decide. They should select someone close to the patient and most likely to know the patient’s current wishes. If a participant disagrees with the selection or a decision, or no consensus can be reached after reasonable efforts, an interested person who joined the discussion may seek guardianship (§ 327E-5(d)).

Who is available and eligible

Reasonable availability depends on contact effort appropriate to the care’s seriousness and urgency, plus willingness and ability to act in time (§ 327E-2). A supervising provider must require the surrogate to give a written declaration under penalty of false swearing with facts supporting authority (§ 327E-5(j)).

Decisions limited or excluded

A patient-designated surrogate can make the decisions the patient could make. An undesignated surrogate also generally can, but withholding or withdrawing artificial nutrition or hydration requires the primary and a second independent physician to certify in the medical record that continuation merely prolongs dying and future neurological response is highly unlikely (§ 327E-5(f)–(g)). The undesignated surrogate follows the patient's wishes or, if unknown or unclear, best interest; life-sustaining decisions cannot rest on preexisting long-term disability or economic status (§ 327E-5(g)). An agent or surrogate cannot consent to psychiatric-facility admission unless the patient’s written directive expressly provides for it (§ 327E-13(e)).

No surrogate or disputed authority

An interested person who participated in selecting a surrogate can seek guardianship after disagreement, under the statute’s stated procedure (§ 327E-5(d)). Separately, a patient, agent, guardian, surrogate, treating provider, or institution may petition a competent court to direct or enjoin a health-care decision (§ 327E-14). A surrogate’s decision does not need initial judicial approval (§ 327E-5(h)).

What trips people up

The nutrition-and-hydration certification in § 327E-5(g) applies to a surrogate selected without the patient’s designation. It is a special threshold, while a patient-designated surrogate’s authority is stated separately in subsection (f).

Common questions

Does the eldest child choose?

The statute does not rank children by age or assign family classes an automatic turn. Interested persons seek consensus on a person close to the patient who knows the patient's current wishes (§ 327E-5(d)).

What if the patient later regains capacity?

A concerned interested person, guardian, or primary physician can trigger reexamination. The primary physician records the capacity decision and basis and gives the required notices (§ 327E-5(e)).

Statutes and sources

• Haw. Rev. Stat. §§ 327E-2, 327E-5–6, 327E-11, 327E-13–14 — definitions, surrogate selection, guardian authority, capacity, limits, and judicial relief: https://data.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0327E/ (accessed 2026-10-08). The statute entries above link each official section.