Default Health-Care Surrogate Priority in Vermont

At a glance

Requirements one by one

When the default route opens

For a DNR/COLST order, the patient's clinician must find that the adult lacks capacity. Section 9731(b) also requires no appointed directive agent, no guardian authorized to decide, no contrary instruction about the proposed surrogate, and no patient objection to that surrogate or the proposed treatment. Even an adult who lacks capacity can stop this surrogate route by objecting.

Care or setting covered

Section 9700 calls surrogate consent a limited DNR/COLST authority. A COLST may address interventions such as ventilation, hospital transfer, antibiotics and medically administered nutrition, and is designed for outpatient settings and facilities (§ 9701(6)). Separately, § 9710(a) lets a family member or person with a known close relationship elect Medicare-certified hospice care when there is no agent or guardian or they are unavailable.

Family and other eligible people

Under § 9701(18), an interested individual may be a spouse, adult child, parent, adult sibling, adult grandchild or clergy person, or another adult with special care and concern who knows the patient's values. This is an eligibility list rather than a family priority ladder. Section 9731(c)(1) lets the patient personally tell the clinician whom to designate; the clinician records an oral designation in the medical record. Otherwise the clinician attempts to notify reasonably available interested individuals, who identify an eligible, willing surrogate.

Decision within one class

Only one interested individual acts as surrogate at a time (§ 9731(a)(1)). Under § 9731(d)(1), the interested people must agree on the DNR/COLST decision or agree that a particular interested individual may decide, then name a surrogate and, if available, an alternate. The provider documents the surrogate's confirmation of that agreement in the record before relying on the decision.

Who is available and eligible

The surrogate must be willing to decide according to known patient wishes and values and available to consult the clinician (§ 9731(c)(2)). An unrelated treating provider or listed facility owner, operator, worker, agent or contractor cannot use this route (§ 9731(a)(2)). If a chosen surrogate or alternate becomes unavailable, the clinician asks the interested people to designate another (§ 9731(d)(1)(C)).

Decisions limited or excluded

The surrogate uses substituted judgment, consulting the patient as far as possible and the treating clinicians, to determine what the patient would have wanted (§ 9731(e); see the decision framework in § 9711(d)). If the clinician later finds the patient has regained capacity, the patient's consent supersedes the surrogate's DNR/COLST consent (§ 9731(g)). The hospice elector must likewise protect the patient's own wishes (§ 9710(a)).

No surrogate or disputed authority

If interested individuals cannot agree whom to designate, an interested person may seek guardianship in the Probate Division of Superior Court (§ 9731(d)(2)). The statute supplies no automatic majority choice. The DNR/COLST route remains limited to those orders (§§ 9700, 9731(a)).

What trips people up

The § 9731 route does not authorize a family member to make every health-care decision. It addresses informed consent for a DNR/COLST order; § 9710 separately addresses hospice election. A patient's present objection defeats the surrogate route even after the clinician finds lack of capacity (§ 9731(b)(5), (c)(3)).

Common questions

Can the patient name a surrogate without a written directive?

For this DNR/COLST route, yes. The patient may personally inform the clinician, who records an oral designation (§ 9731(c)(1)).

Does the spouse automatically outrank an adult child?

Section 9701(18) makes both eligible interested individuals, while § 9731(d) calls for agreement on the decision or on a person to decide. Those interested individuals instead agree on the decision or designate one decision-maker.

Statutes and sources

• 18 V.S.A. § 9700 — official section (accessed 2026-10-08).
• 18 V.S.A. § 9701 — official section (accessed 2026-10-08).
• 18 V.S.A. § 9710 — official section (accessed 2026-10-08).
• 18 V.S.A. § 9711 — official section (accessed 2026-10-08).
• 18 V.S.A. § 9731 — official section (accessed 2026-10-08).