Legal Fundamentals of Surrogate Decision Making

Chest, Vol. 141, No. 4, p. 1074-1081 (April 2012)

8 Pages Posted: 7 Sep 2012 Last revised: 6 Nov 2013

See all articles by Thaddeus Mason Pope

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Alden March Bioethics Institute; Saint Georges University

Date Written: 2012


The four previous articles in this series have traced the history of patient autonomy and have identified its ethical and legal foundations. Patient autonomy is highly valued in the United States to the extent that the patient does not lose the right of self-determination when he or she loses the capacity to make health-care decisions for him or herself. The law has devised several tools to promote "prospective autonomy." One mechanism is the instructional advance directive or living will. But most of us do not write such directives. Another mechanism is the proxy directive or durable power of attorney for health care, designating another person, a surrogate, to direct the course of our medical treatment upon our incapacity. But most of us do not do that either. Therefore, the most common mechanism by which our prospective autonomy is protected and promoted is through the informal selection of surrogates based on statutory priority lists. These "default" surrogates are the most numerous type of surrogate. This article explains the importance and legal fundamentals of surrogate decision making. It first describes five basic types of surrogates. The article then looks at the role of these surrogates and how they are supposed to make decisions on the patient's behalf. Unfortunately, surrogate performance is often mediocre or poor. There are significant and persistent obstacles to good surrogate decision making. After explaining these problems, the article concludes by identifying several solutions.

Keywords: Patient autonomy, ethics, self-determination, heathcare, medical, prospective autonomy, directive, power of attorney, surrogate, guardian

JEL Classification: K32, K00

Suggested Citation

Pope, Thaddeus Mason, Legal Fundamentals of Surrogate Decision Making (2012). Chest, Vol. 141, No. 4, p. 1074-1081 (April 2012), Available at SSRN:

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)


Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States


Saint Georges University ( email )

West Indies


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics