Competence is determined by a court of law, whereas physicians determine medical decision-making capacity (DMC). When patients lack DMC, a surrogate should be identified to make decisions. Ideally, patients will have created a durable power of attorney for health care. If a patient did not do this, state statutes specify which individuals can serve as surrogates; a current spouse typically is the first choice. Ideally, surrogates should use substituted judgment in making decisions. If this is not possible because the patient never shared end-of-life wishes with the surrogate, the surrogate can make decisions that, in the surrogate's opinion, are in the patient's best interests or that a reasonable individual would make. When no surrogate can be identified and a patient has no written advance directive, hospital ethics committees can assist with decisions, or, for some patients, a court will need to appoint a guardian. When there is a surrogate, difficulties can arise when family members disagree with the surrogate's decisions or when surrogates request treatments that, in the physician's opinion, would be futile or nonbeneficial. Hospital ethics committees may be able to assist in these situations, but appropriately conducted family meetings often resolve such difficulties.
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