Most Americans have not appointed a healthcare agent through an advance directive or durable power of attorney for healthcare. So, when these individuals lose capacity and cannot make their own treatment decisions, the legally authorized decision maker is determined by rules in the state's default surrogate statute.
But a handful of states have no such statute, notably Massachusetts, Minnesota, and Missouri. In 2025, all three states introduced legislation to enact default surrogate statutes that would tell clinicians who is legally authorized to speak for an incapacitated patient.
Minn. S.F. 2567 is the most innovative, avoiding the traditional strict NOK hierarchy in other states' statutes.
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| Minnesota senator & physician Mann |
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