The analogy is to capacity to make a real will and, as with real wills, it is important to have assurance that the patient is not subject to undue influence or abuse in creating a special power of attorney. They are especially important in Massachusetts, one of three states without living will legislation. Moreover, patients with dementia, even in relatively advanced stages, are unlikely to meet the terminal illness or persistent coma triggering requirements for the applicability of living wills in many states, including Vermont and New Hampshire. Another important legal tool is the statutory authorization of surrogate decision- makers. Such lists clarify who is to speak for the patient, beginning with the appointed guardian and assuming as default family members in the order of consanguinity.
Some states also authorize a variety of other surrogates, including close friends.
The idea of these statutes is to approximate the patient's own choices. Surrogacy statutes typically provide that decisions should be made in accord with the patient's wishes to the extent known, or in accord with the patient's best interests. Had Wisconsin had such a statute, the authority of Edna MF's sister, as both guardian and closest available relative, would have been established. Finally, advance directive statutes add to, rather than undermine, patients' rights to determine care. On the substituted judgment standard, surrogates should make decisions in accord with what is known about the patient's wishes or, in the absence of reliable information, in accord with the patient's interests.