Like Minnesota and a few other states, Vermont has no law authorizing "default" surrogate decision makers. On the one hand, this leaves providers with the flexibility to identify and choose the best surrogate. On the other hand, it leaves providers somewhat uncertain about their validity and safety of their choices. New York's lack (until June 2010) of authorized default surrogate created even worse problems. The long-standing problem in Vermont has bubbled to the surface as Vermont now aims to enact legislation authorizing POLST.
But the debate need not be framed in terms of (1) law or (2) no law. Providers can have both flexibility and legal clarity. One great model for this is the Tennessee Healthcare Decisions Act. I discuss some others in Part 2 of my article on the unbefriended in the Journal of Clinical Ethics. I also discuss the issue in this article in the NY State Bar Association Health Law Journal.
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