Indiana Proxy Decision Maker Hierarchy: Who Decides When There's No POA

What Happens When Nobody Is Designated

Your parent is in the hospital, unable to communicate, and hasn't signed an Advance Directive or Healthcare Representative Appointment. The surgeon needs consent for an emergency procedure. A social worker is asking about discharge planning. The billing department wants someone to authorize insurance claims.

Who has the legal authority to make these decisions?

Indiana law answers this through IC § 16-36-1-5 — a statutory proxy decision-maker hierarchy that kicks in when an adult patient lacks capacity and has no available Healthcare Representative. It's the state's fallback system, and it determines who speaks for your parent when they can't speak for themselves.

The Statutory Hierarchy

Under IC § 16-36-1-5, when an adult cannot make healthcare decisions and has no available Healthcare Representative under a valid appointment, the following people can consent to or refuse medical treatment, in this order of priority:

1. Judicially appointed guardian — A guardian of the person appointed by a probate court under IC § 29-3 has first priority in this fallback hierarchy. The guardian's authority remains subject to the court's order and the governing health-care rules.

2. Spouse — Unless the couple is legally separated or a divorce proceeding is pending. An estranged-but-still-married spouse technically has priority over adult children.

3. Adult children — Here's where it gets complicated. If the patient has multiple adult children, the healthcare provider must seek the consent of a majority of those "reasonably available." Three out of five children agreeing is a majority; if children disagree and no majority can be reached, the provider may decline to proceed without court intervention.

4. Parents — The patient's living parents, regardless of the patient's age.

5. Adult siblings — Brothers and sisters of the patient who are over 18.

6. Grandparents — The patient's living grandparents.

7. Adult grandchildren — The patient's adult grandchildren.

8. Other adult relatives — The nearest other adult relative in the next degree of kinship.

9. Qualifying friend — An adult friend who has maintained regular contact and is familiar with the patient's activities, health, and religious or moral beliefs.

10. Religious superior — The patient's religious superior, if the patient is a member of a religious order.

How It Works in Practice

The hierarchy sounds straightforward on paper. In a hospital at 2 a.m., it's anything but.

Providers work down the list. The attending physician or hospital social worker starts at the top and contacts people in order. If there's a guardian, they call the guardian. If not, they try the spouse. If no spouse, they contact adult children.

"Reasonably available" is subjective. The statute requires a majority of reasonably available adult children, but it doesn't define "reasonably available." If your sibling lives overseas and can't be reached for three days, the hospital may consider them unavailable and proceed with consent from the remaining children. Different hospitals interpret this differently.

Disagreements stall care. When adult children disagree about a treatment decision — one wants aggressive intervention, another wants comfort care — the provider has no clear authority to proceed. The typical resolution is a hospital ethics committee consultation, followed by a petition to the probate court for emergency guardianship if the dispute can't be resolved.

The hierarchy doesn't cover financial decisions. IC § 16-36-1-5 authorizes proxy consent for healthcare only. It does not give anyone authority to access bank accounts, pay bills, sign contracts, or handle insurance paperwork. For financial authority without a POA, the family needs to petition for guardianship of the estate.

The Limits of Proxy Authority

The statutory hierarchy provides health-care consent authority only. It does not grant authority to access bank accounts, pay bills, sign contracts, or handle financial matters.

For medical records, a provider may require proof of the proxy's authority and may limit disclosure to information relevant to the health-care decision. A person authorized to make health-care decisions may have access to protected health information under HIPAA and Indiana law, but a disputed request for a complete history may require provider or legal review.

For end-of-life decisions, the provider applies the governing health-care-consent and advance-directive rules. A written Advance Directive documents a designated Healthcare Representative and the patient's wishes more clearly than relying on the fallback hierarchy.

Why the Hierarchy Isn't Enough

The proxy system is a safety net, not a plan. Relying on it means:

• You're at the mercy of provider interpretation. Different hospitals apply the hierarchy differently, especially when it comes to the "majority of reasonably available" adult children rule.
• Sibling conflicts have no built-in resolution. If two of four children want one thing and two want another, the system deadlocks. The only way out is court intervention — which takes time your parent may not have.
• Financial authority is completely absent. The hierarchy handles medical decisions but leaves finances untouched. Your parent's bills go unpaid, their insurance claims go unprocessed, and their accounts sit frozen.
• No automatic financial or benefits authority. A proxy may participate in care decisions, but the hierarchy does not itself authorize Medicaid applications, payment of care bills, or other financial administration.

Getting Ahead of the Hierarchy

An Advance Directive under IC § 16-36-7 names one or more Healthcare Representatives who have clear, documented authority to make medical decisions — bypassing the statutory hierarchy entirely. The designated representative jumps to the top of the priority list, above even a guardian, and has authority that extends to end-of-life decisions, facility placement, and HIPAA-protected information access.

Combined with a Durable Financial Power of Attorney, you have complete legal coverage — medical and financial — without relying on a fallback system that was designed for emergencies, not ongoing care.

The Indiana Power of Attorney & Guardianship Kit covers both the Healthcare Representative Appointment (Indiana's unified Advance Directive under IC § 16-36-7) and the Durable Financial POA, ensuring your family has designated authority rather than depending on a statutory hierarchy that breaks down the moment siblings disagree.

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