If a patient without decision-making capacity needs mental health treatment, clinicians will turn to the surrogate decision-maker. However, state statutes vary widely on the scope of authority given to surrogates in this particular situation.1

“For mental health treatments for incapacitated patients, some states allow default surrogates unrestricted decision-making, some allow limited decision-making, some allow no decision-making, and some do not address the matter at all,” says Paul S. Mueller, MD, MPH, professor of medicine and biomedical ethics at Mayo Clinic College of Medicine and Science.

Mueller and colleagues found eight states delegated broad authority to surrogates, 25 states prohibit surrogates from giving consent for specific therapies, and 13 states are silent on whether surrogates can make decisions. “Advance directives can be very helpful in these situations. Again, this can depend on state law, but knowing patients’ expressed wishes is always helpful,” Mueller says.

Previous research of state statutes delineating the powers of default surrogates making decisions for patients who lack decision-making capacity revealed similar variation.2 “Ethicists should be familiar with their respective jurisdictions’ statutes and case law, especially those whose health systems cross state borders,” Mueller says.


  1. Doyle CK, DeMartino ES, Sperry BP, et al. Statutes governing default surrogate decision making for mental health treatment. Psychiatr Serv 2021;72:81-84.
  2. DeMartino ES, Dudzinski DM, Doyle CK, et al. Who decides when a patient can’t? Statutes on alternate decision makers. N Engl J Med 2017;376:1478-1482.