Default Health-Care Surrogate Priority in Maine

At a glance

Requirements one by one

When the default route opens

Section 5-806(1) uses two distinct tests. For withholding or withdrawing life-sustaining treatment, the primary physician must find that the adult lacks capacity and is terminally ill or in a persistent vegetative state; an appointed agent or guardian may be absent or not reasonably available. For other health-care decisions, the physician must find incapacity and no agent or guardian may exist. Under § 5-812(2), the law presumes capacity until the primary physician or court rebuts it.

Care or setting covered

“Health care” covers care, treatment, services and procedures affecting physical or mental condition (§ 5-802(5)). “Health care decision” includes choosing institutions and providers, diagnostic tests, surgery, medication, resuscitation orders and life-sustaining treatment (§ 5-802(6)). The surrogate provision is not confined to one facility type.

Guardian or appointed agent

An agent's health-care decision takes precedence over a guardian's unless a court orders otherwise (§ 5-807(2)). A guardian or agent who merely cannot be reached satisfies the life-sustaining-treatment branch's unavailability condition, but does not satisfy the separate no-appointee-exists condition for other decisions (§ 5-806(1)).

Family and other eligible people

The order in § 5-806(2) is spouse (unless legally separated), an adult in a spouse-like emotional, physical and financial relationship, adult child, parent, adult sibling, adult grandchild, adult niece or nephew, adult aunt or uncle, and another adult blood or adoptive relative familiar with the patient's values. If none is reasonably available, a concerned adult familiar with the patient's values may act (§ 5-806(3)).

Decision within one class

When the provider learns of disagreement, the provider may follow the priority class or the majority of its members who communicated their views. An informed even division disqualifies that class and all lower-priority people from making that decision (§ 5-806(5)).

Who is available and eligible

“Reasonably available” means contactable without undue effort and willing and able to act in time for the patient's needs (§ 5-802(16)). A person with capacity may disqualify a potential surrogate in a signed writing or by informing the supervising provider (§ 5-806(8)). A residential long-term care institution's owner, operator or employee generally cannot serve for its patient, subject to the spouse, adult-child, parent and co-resident-relative exceptions (§ 5-806(9)). The provider may demand a declaration under penalty of perjury to substantiate authority (§ 5-806(10)).

Decisions limited or excluded

The special threshold for withholding or withdrawing life-sustaining treatment is in § 5-806(1). For other decisions, a surrogate cannot deny medically necessary, lifesaving surgery, procedures or interventions. Under § 5-814(5), the statute does not authorize a surrogate to consent to admission to a mental health institution unless the person's written advance directive expressly allows it. The surrogate must follow known instructions and wishes, or decide in good faith according to best interests while considering known personal values (§ 5-806(6)).

No surrogate or disputed authority

A provider may refer disagreeing classes to a neutral third party or a court (§ 5-806(5)). Under § 5-815, the law lets the patient, decision-maker, care provider or institution, protective-services agency, adult relative or adult friend petition for an order directing or enjoining a decision or other equitable relief. A surrogate decision otherwise takes effect without prior judicial approval (§ 5-806(7)).

What trips people up

The difference between an unavailable appointee and no appointee at all controls which branch of surrogate authority can be used. A family tie also does not overcome the patient's prior disqualification or the residential-institution conflict rule (§ 5-806(1), (8)–(9)).

Common questions

Can a close friend act if a relative exists but cannot be reached?

Yes, if none of the listed family members is reasonably available and the adult friend has shown special concern, knows the patient's values and is reasonably available (§ 5-806(3)).

Can a lower-priority relative break a tie in the higher class?

No. Once the supervising provider is informed of an even division, the divided class and everyone below it are disqualified from that decision (§ 5-806(5)).

Statutes and sources

• Me. Rev. Stat. tit. 18-C, §§ 5-802, 5-806–5-807, 5-812, 5-814–5-815 — definitions, surrogate selection and limits, precedence, capacity and judicial relief. Official Revisor section links and 2026-10-08 access dates appear in the statute entries above.