Vermont Has No Default Surrogate Law: Why This Changes Everything

In most states, if you're incapacitated and haven't signed any advance planning documents, the law provides a default hierarchy — typically spouse, then adult children, then parents, then siblings — that grants someone automatic authority to make medical decisions on your behalf.

Vermont does not do this.

Under Vermont law, there is no comprehensive default surrogate decision-maker statute. If you become incapacitated without a validly executed advance directive or a court-appointed medical guardian, your family members have no general statutory authority to consent to, refuse, or withdraw medical treatment on your behalf.

What Actually Happens Without a Directive

When a Vermont hospital has a patient who lacks capacity and has no healthcare agent, the clinical team faces a legal vacuum. They cannot simply ask the spouse or adult child to authorize surgery, change medication, or make end-of-life decisions.

The only narrow exception exists under 18 V.S.A. § 9731, and it covers a very specific scenario: if a clinician determines a patient lacks capacity, has no agent, and has no guardian, "interested individuals" (family or close friends) may designate a single surrogate — but only for decisions about a Do-Not-Resuscitate (DNR) or Clinician Orders for Life-Sustaining Treatment (COLST) order. Nothing else.

For all other medical choices — whether to proceed with surgery, change a treatment plan, discharge to hospice, or continue aggressive interventions — the hospital must consult its internal ethics committee and, if necessary, initiate emergency guardianship proceedings through the Probate Division.

The Guardianship Alternative Is Expensive and Slow

Emergency guardianship is the legal backstop when no advance directive exists. A family member petitions the Probate Division of the Superior Court to be appointed as the incapacitated person's guardian with authority over medical decisions.

This process involves:

• Filing a petition and paying court fees
• Serving notice on the incapacitated person and other interested parties
• A clinical evaluation confirming lack of capacity
• A court hearing where the judge evaluates the proposed guardian's suitability
• Potential disputes among family members about who should serve

Even when uncontested, this process typically takes weeks. Meanwhile, the patient's medical needs don't pause. The hospital is left navigating ethical gray areas while the court system processes paperwork.

When family members disagree about treatment — which happens more often than people expect — the guardianship proceeding can become contested litigation that drags on for months and costs thousands in legal fees.

Why Vermont Is Different

Most states adopted some version of the Uniform Health-Care Decisions Act, which includes a default surrogate hierarchy. Vermont deliberately chose not to. The reasoning is rooted in the state's emphasis on individual autonomy: the legislature apparently determined that medical decisions should flow from a person's own expressed wishes, not from a statutory presumption about family relationships.

The practical effect is that Vermont places more weight on advance directives than nearly any other state. In states with default surrogate laws, failing to plan is inconvenient but manageable. In Vermont, failing to plan can result in a court-appointed stranger making your medical decisions because no family member has legal standing.

The Simple Fix

The gap closes entirely with a signed advance directive. Naming a healthcare agent takes the guardianship question off the table completely. Your agent has immediate, legally recognized authority to make medical decisions the moment you lose capacity — no court petition, no waiting period, no family disputes about standing.

Vermont's advance directive requires two witnesses (no notary) and can be completed in a single sitting. Since April 2024, witnesses can even participate remotely via audio-video or telephone.

The Vermont Advance Directive & Living Will Kit guides you through the process with a focus on Vermont's unique no-surrogate reality, helping you name a qualified agent and document your treatment preferences before a crisis forces the guardianship route.

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