Vermont Surrogate Decision-Making: When There's No Advance Directive or POA

The Scenario Most Families Face

Your parent is in the hospital after a fall, and the care team needs authorization for a procedure or a decision about discharge placement. But your parent hasn't signed an advance directive. There's no durable power of attorney. Nobody has been formally designated to make decisions on their behalf, and your parent is too confused to make the call themselves.

This is the most common decision-making crisis in elder care, and Vermont has a statutory framework for resolving it — but the framework has gaps that catch families off guard.

Vermont's Surrogate Decision-Making Gap

Unlike many states, Vermont has no default statutory hierarchy that automatically gives a spouse or adult child authority to make medical decisions for an incapacitated adult. If a parent lacks capacity and has not appointed a health care agent through an advance directive or been assigned a guardian, next of kin does not automatically have legal authority. Providers may require the family to pursue formal guardianship for decisions that need a legally authorized decision-maker.

What Surrogates Can and Cannot Do

If a person has legally recognized authority to make a health care decision, that authority generally covers consenting to or refusing medical treatment, choosing between treatment options, and participating in discharge planning. The authorized decision-maker should make the decision the patient would have made based on their known values and preferences, not what they personally think is best.

But participation in a particular medical decision does not create general authority over the parent's affairs. A person helping with a health care decision typically cannot:

• Manage finances. Health care decision-making doesn't extend to banking, real estate, bill-paying, or insurance claims. If your parent's rent needs to be paid, their bank account needs to be accessed, or their home needs to be listed, you need a durable financial power of attorney or, without one, a court-appointed guardian or conservator.
• Execute binding legal documents. A person authorized for a specific health care decision may sign a hospital consent form, but they can't sign a nursing home admission agreement that creates financial obligations, transfer real estate, or modify insurance policies.
• Override a known preference. If the patient previously expressed a clear wish — even informally — the surrogate is bound by it. Documenting what your parent has said about their care preferences, even in conversation, has legal weight.

When the Hierarchy Breaks Down

Three situations push families past the surrogate framework and toward probate court:

Family disagreement. When adult children disagree about a parent's care path — one wants aggressive treatment while another wants comfort care, or siblings conflict over whether a parent should stay home versus move to a facility — Vermont's no-default rule does not supply a tie-breaker. The provider may require a legally authorized agent or guardian before proceeding.

Financial decisions. The moment a care transition requires managing money — paying a facility deposit, spending down assets for Medicaid eligibility, selling property — health care surrogate authority is insufficient. Without a financial POA, someone needs to petition the Probate Division for guardianship or conservatorship.

Disputed capacity. If the patient or another family member contests whether the patient actually lacks capacity, the provider may require a formal capacity evaluation before proceeding. If the dispute persists, a guardianship proceeding may be the mechanism for resolving it.

Guardianship as the Last Resort

When surrogate consent isn't sufficient, Vermont's Probate Division handles adult guardianship petitions. This is a structured legal process: the petitioner files Form 700-00072PAG, pays a $150 filing fee (waivable for financial hardship), and the court appoints an attorney for the respondent and orders an independent mental health evaluation.

Guardianship is the most protective intervention the state offers — but it's also the most restrictive. The court removes some or all of the adult's legal decision-making rights and transfers them to the appointed guardian. Vermont courts are required to consider less restrictive alternatives, including supported decision-making, before granting a guardianship.

The process is not an immediate solution to a hospital discharge crisis. If your parent is in the hospital now, tell the care team that no advance directive is in place and ask what temporary decision-making process or court action is required; a guardianship petition may run in parallel for longer-term authority.

The Preventive Step

Every aspect of this framework is harder, slower, and more expensive than what would have happened if your parent had signed a durable power of attorney and an advance directive while they still had capacity.

The Vermont care decision guide includes the legal authority audit worksheet that walks through exactly which documents your parent needs — a health care agent designation, a durable financial POA, and advance directive registration with the Vermont Advance Directive Registry (VADR) — with the execution requirements specific to Vermont law.

See more Vermont guides →