concurring.1
I join fully in the reasoning and the result of the majority opinions in this case and in the related cases of In re Farrell, *429108 N.J. 335 (1987) and In re Peter, 108 N.J. 365 (1987). The Court establishes standards for right-to-die cases, which commendably balance the many rights, interests, and concerns present in these cases. I write separately to express more fully my understanding of the court’s essential rulings. These cases, soundly decided in my view, bring us to the threshold of other issues for which the decisional standards posited by the Court may not yield sufficient direction or adequate guidance. Because our decisions so clearly raise additional and inevitable concerns, some further exploration and explication of governing principles are needed.
The decisional chore in these cases is especially difficult because they bring into question the role of courts and, indeed, the role and limits of law. The cases evoke strong emotional reactions, which must be acknowledged as we come to grips with the merits of the controversies. These appeals reinforce the feeling that many of the troubling issues in the right-to-die cases are intrinsic to the human condition and thus are not susceptible to judicial resolution. We may believe that the judicial role in dealing with these tragic individual and social dilemmas should remain confined. These concerns impel me to write separately, adding some thoughts to the Court’s important rulings.
I.
Among the cases we decide today is that of Nancy Ellen Jobes, a case which involves most of the legal, conceptual, and philosophical problems that pervade right-to-die litigation. Mrs. Jobes is thirty-one years old. Because of a complication during a March 1980 surgery, she suffered massive and irreversible brain damage. Since that time, she has been in a permanent vegetative state and, since July 1980, she has been cared for in a nursing home. No one would fail to characterize the extensive treatment that serves to keep her in a biologically-viable condition as extraordinary and heroic. See infra pages 441-42.
*430In May 1985, Mrs. Jobes’ husband and parents asked the nursing home to terminate this treatment, specifically to withdraw the jejunostomy tube through which Mrs. Jobes receives nutrients. The nursing home refused. Mr. Jobes then sought judicial authorization to discontinue his wife’s treatment.
Today this Court holds that though Mrs. Jobes’ intention to accept or refuse life-sustaining treatment has not been clearly established by clear and convincing evidence, the Court will uphold the decision of close family members who made the treatment determination based on what they believe Mrs. Jobes’ would have decided. Ante at 418-420. The Court is satisfied to effectuate the decision of the patient’s family. It has in these circumstances adopted the individual right of self-determination reflected by the substituted judgment of a surrogate decisionmaker as the standard for resolving the fundamental issue of whether to terminate life-sustaining treatment.
While this “substituted judgment” standard fits well the facts of this case, the Court notes that in many cases this standard will not be workable, e.g., in cases where the patient has always been incompetent or when there is no one sufficiently familiar with the patient to be able to know how the patient would have decided. Ante at 424. The Court does not suggest standards for how treatment decisions should be made in such cases. Id. I would add that there will be difficult cases in which the relationship of family members or putative friends of the patient may not be close enough for them to be an appropriate source for the awesome decision of whether to discontinue life-perpetuating treatment.
In the cases now before the Court, the decision to discontinue or to refuse treatment was either made by the patient herself or made by the patient’s guardian on the basis of trustworthy evidence of what the patient would have decided. However, the facts of these cases foreshadow situations in which society and *431the judicial system will be confronted with treatment decisions that are morally even more intractable. The difficult extreme case, where there is no basis for deciding what choice the patient would have wanted made, is not before the Court now, but it would be naive to believe that we will not face this difficult question in the near future.2 At the same time, what we decide today may strongly influence our decisions in later cases. The standard that we adopt in these cases may serve either to clarify or obfuscate the decisions we will be called upon to make in later variant cases. Compare In re Quinlan, 70 N.J. 10 (1976) with Matter of Conroy, 98 N.J. 321 (1985).
In the absence of legislative direction, the courts will have to find some criteria, some values upon which to authorize or refuse authorization for treatment decisions in contexts where we have no basis for predicting what decision an incompetent patient would have wanted made. We must be alert to the possibility of abuse and understand that in this context, “abuse” includes not only discontinuing treatment for a patient who would have wanted treatment continued, but also the continuation of treatment for a patient who would have wanted treatment stopped. As we observed in Conroy, supra, 98 N.J. at 343: “To err either way — to keep a person alive under circumstances under which he would rather have been allowed to die, or to allow that person to die when he would have chosen to live — would be deeply unfortunate.” The courts must find an approach that confronts both forms of potential abuse, while minimizing the possibility of either.
*432We can start by examining more critically the concept of self-determination as the primary or preferred basis for such treatment decisions and then explore the relationship between self-determination and other important criteria encompassed generally by the concept of patient best-interests for informing treatment decisions. These inquiries inevitably confront us with serious questions relating to the judicial role in this area of acute individual and social concerns.
II.
The foundation for our decisions is the concept of individual self-determination. The objective of legislative and judicial action in medical treatment decisions has been to insure that, to the extent possible, the patient’s right to self-determination is protected. The right to self-determination has been described as an individual’s “strong[] personal interest in directing the course of his own life”, “an individual’s right to behave and act as he deems fit, provided that such behavior and activity do not conflict with the precepts of society.” Conroy, supra, 98 N.J. at 350, 358. In Quinlan, while the underlying interest was denominated as a constitutional right of privacy rather than the common-law right of self-determination, the core notion — the primacy of individual choice — was essentially the same.3
“Self-determination” is not a monolithic concept; it embraces a cluster of values or interests associated with individual autonomy. In medical treatment decisions, the law developed the doctrine of informed consent as the primary means for protect*433ing the right of self-determination. “The doctrine of informed consent [requires that medical decisions be made in a context where] the patient has the information necessary to evaluate the risks and benefits of all the available options and is competent to do so.” Conroy, supra, 98 N.J. at 347. Self-determination in its purest form thus includes elements of knowledge and volition.4 This understanding of individual self-determination is illustrated by the companion case of Farrell, supra.
The assurances and safeguards used to protect and effectuate a competent patient’s self-determination primarily through informed consent are not available when the patient whose treatment decision is at question is no longer competent. Serious conceptual and practical difficulties arise when we try to apply to incompetent persons the standards used to promote the value of self-determination for competent persons. See In re Grady, 85 N.J. 235 (1981). In the process, we are necessarily remitted to a decision or judgment that falls short of true individual self-determination.
The cases we presently consider dramatize the paradox in transporting the concepts of self-determination from competent to incompetent persons. The difficulty can be measured by the differences between the Farrell case and the Jobes and Peter cases. The record in Kathleen Farrell’s case elaborately documented that her decision expressed her right of self-determi*434nation. See Farrell, supra, 108 N.J. at 344-347. Outside experts questioned Mrs. Farrell to confirm that she knew the consequences of the treatment alternatives, that she was not clinically depressed, that the decision was made on her own initiative, and that her decision was not unduly influenced by other parties.5 In contrast, we cannot make elaborate inquiries of Hilda Peter and Nancy Jobes to satisfy ourselves that their treatment decisions — or, more accurately, their earlier expressed opinions about such decisions — were thoroughly autonomous, voluntary and informed.
We, nevertheless, cling strongly to the belief that we can and should effectuate “self-determination” for the incompetent. Any determination, however, at best is only an optimistic approximation. As the Court stated in Conroy:
The right of an adult who ... was once competent, to determine the course of her medical treatment remains intact even when she is no longer able to assert that right or to appreciate its effectuation.
Since the condition of an incompetent patient makes it impossible to ascertain definitively his present desires, a third party acting on the patient’s behalf often cannot say with confidence that his treatment decision for the patient will further rather than frustrate the patient’s right to control his own body. Nevertheless, the goal of decision-making for incompetent patients should be to determine and effectuate, insofar as possible, the decision that the patient would have made if competent. [Conroy, supra, 98 N.J. at 359-60.] 6
*435The right-to-die cases now before the Court illustrate the spectrum along which treatment decisions based on individual self-determination lie, ranging from those that most completely and accurately mirror the actual wishes of the patient to those that only vaguely comport with the patient’s views or feelings. In treatment decisions made in the name of incompetent patients, no matter how much evidence we have of subjective intent and actual wishes or how well the guardian knew the patient, and how well-intentioned the patient’s guardian, family, and physician may be, there will always be some residual doubt that the decision expresses or effectuates the patient’s right of self-determination. In less optimal circumstances, the doubt is greater. As doubt grows, factors other than those relating solely to the patient’s wishes or views necessarily intrude upon decisionmaking.
Because we cannot be as sure with treatment decisions made for incompetent patients as with decisions made by competent patients that the particular decision furthers the value of self-determination, we try to compensate by considering other factors and adding substantive standards and procedural safeguards. For example, in Conroy, in direct proportion to the doubt inherent in determining the patient’s wishes or views, the Court posited a series of tests ranging from pure self-determination to one based on objective factors; it also established elaborate protective procedures for decisions to discontinue treatment for incompetent elderly nursing home patients. Conroy, supra, 98 N.J. at 381-85. In Quinlan, the Court offered a balancing test, involving a comparative weighing of patient wishes or views and objective factors;7 it also provided a *436structured decisional framework involving responsible decision-makers. Quinlan, supra, 70 N.J. at 41.
The inevitability of uncertainty makes it important to recognize the gradations of the right of self-determination. An “objective approach” gets intertwined subtly with the subjective self-determination approach depending upon the circumstances and the degree of doubt attendant upon the effectuation of self-determination.8 The distinction between the two approaches is often blurred. Objective factors frequently simply gloss over or shore up decisions purportedly based on self-determination. Thus, when the patient is suffering under conditions that are so extreme that discontinuation of treatment seems to be in her “best interests,” the courts are less troubled by the doubt that this treatment decision does not truly express the patient’s right to self-determination. Indeed, because doubt *437seems inherent in self-determination for an incompetent, objective factors may become conditions for any treatment decision. Courts consider — either explicitly or implicitly — objective factors particularly when the basis for self-determination is attenuated. In such cases, circumstances involving the patient’s age, whether she is terminally ill and facing death shortly, whether she is unconscious or in a vegetative state, how burdensome or intrusive the treatment is, and how much pain the patient is suffering are considered in deciding whether to authorize discontinuation of treatment. See, e.g., Conroy, supra, 98 N.J. at 342 (limiting holding to elderly nursing home residents who suffer from serious and permanent mental and physical impairments and who will probably die within a year); Delio on Behalf of Delio v. Westchester Cty., 134 Misc.2d 206, 510 N.Y.S.2d 415 (Sup.1986) (refusing to apply right to refuse treatment to patient in chronic vegetative state because he was not terminally ill and because he was only 33 years old), rev’d, 129 A.D.2d 1, 516 N.Y.S.2d 677 (A.D. 2 Dept. 1987).
Because self-determination for the incompetent is rarely foolproof, because it is frequently unreliable, and because it is almost always problematic, we should consider in greater depth the scope and application of an appropriate standard for determining right-to-die cases when decisions based on self-determination are unattainable or illusory. We must consider whether courts can and should extrapolate from the objective factors that expressly or subliminally influence many self-determination decisions criteria for those cases where no subjective evidence probative of self-determination is available. See infra pages 440-41.
III.
The law has taken two major approaches to the making of medical treatment decisions for incompetent patients, each of which in variant forms has appeared in the opinions of the right-to-die cases. One focuses upon the patient’s right of self-determination, the other emphasizes the patient’s best in*438terests. The distinctions and relationships between these approaches are the crux of the developing law in the right-to-die cases.
Under the first approach, the court seeks as best it can to effectuate the individual’s right to self-determination. The court attempts to determine what the patient would have decided if she were still competent. This approach includes two standards. The first standard applies when we have evidence of sufficient quantity, probity, and specificity of the patient’s own past expressions and conduct from which we can extrapolate the patient’s actual wishes, what choice she would have made in this treatment decision.9 Conroy, supra, 98 N.J. at 361-63; see Peter, supra, 108 N.J. at 377-380. It is the preferred self-determination standard because it most closely approximates the informed-consent decision of a competent person.
A second standard, also based on self-determination and applicable in this case, involves the substituted judgment of a surrogate decisionmaker. It gives the treatment decision to a close relative or friend of the patient, to a person in a position to fulfill the patient’s basic views or philosophy or values. Ante at 413-420; see Quinlan, supra, 70 N.J. at 41-42. The premise for this standard is that intimate knowledge of a friend or relative allows the formulation of a reliable opinion about how the patient would react to the situation, even if that person had never previously experienced or expressed views upon such a situation. The theory of substituted judgment is that if we know someone well enough — her ideals, values, attitudes, phi*439losophy of life — we can figure out how she would have reacted to a new situation.10 See ante at 415-420.
The self-determination approach is hardly problem-free. Because of the inevitability of doubt, it carries a risk of unreliability. See discussion, supra pages 435-437. When the doubt is such that self-determination cannot be based on the , provable actual wishes of the patient, the integrity of the decision as effectuating self-determination is only imperfectly assured by resort to the substituted judgment/surrogate decisionmaker standard. This standard is also problematic, it is “fraught with guesswork,” relying as it must “on the imaginative effort of the decisionmaker to construct what the patient would want, given what the surrogate knows.” See Minow, “Beyond State Intervention in the Family: For Baby Jane Doe,” 18 U.Mich.J. L.Ref. 933, 972-73 (1985). To the extent that this “imaginative effort” will necessarily fall short of certainty about what the patient would have decided, it may be that “[a]t its best the substituted judgment approach may express concerns and sympathy for the patient, rather than actually divining that person’s unknown wishes.” Id. at 973.
*440The second major approach to dealing with the resolution of right-to-die tensions is the best-interests analysis. It purports to minimize or eschew the self-determination criteria based on the subjective wishes or views of the present. A decisionmaker decides to consent to or refuse medical treatment for the patient based on what would be in the patient’s best interests, considering “from an external stance the needs, risks, and benefits to the affected person.” Minow, supra, at 973 (footnote omitted). This approach was denominated an “objective” test in Conroy, supra, 98 N.J. at 364-68. See also Merritt, supra note 8.
The problems with the “best interests” analysis are straightforward. In our society persons have different ideas about how the value of life is affected by the loss of brain function, the loss of cognitive abilities, bodily deterioration, or unrelievable extreme pain.11 A “best interests” standard assumes a consensus that is not there regarding when discontinuation of treatment is in a patient’s best interests.
Despite its many limitations, the “best-interests” or “objective” approach requires our attention, because the courts must develop some variation of that approach to deal with the extreme cases where subjective approaches seeking individual self-determination are unavailing. In some settings these approaches — self-determination and best interests — are not necessarily neatly divided but may represent a continuum of values. In Conroy, for example, we recognized a middle-ground ap*441proach, the limited-objective test, which combined elements of both self-determination and objective physical factors. Conroy, supra, 98 N.J. at 364-66. We also recognized that failing a self-determination approach, in some circumstances a best-interests analysis under the pure objective test would justify the refusal of medical treatment for a legally incompetent patient. Id. at 364-68.12
The current cases, in my opinion, fairly impel us to consider in greater depth the kind of approach, decisional process and analytical framework that must be developed to deal adequately with these dilemmas. Particularly, we should consider the interrelationship between decisions we are able to base on self-determination and those that unavoidably must be based on best-interests. We should grapple with the question of what we are to do if Nancy Ellen Jobes had had no one to inform us as to her feelings or wishes in the matter.
Mrs. Jobes requires extensive care. While numerous medications, nutrition and hydration were initially provided through the use of a nasogastric tube, as a result of increasing difficulties with that tube’s frequent removal and reinsertion, a gastrotomy tube was surgically inserted into Mrs. Jobes’ stomach in December 1980. A life-threatening failure of this gastrotomy tube in June 1985 led to the closing of the gastric fistula, a new cutting in her abdominal cavity and the establishment of a feeding jejunostomy tube in her small intestine. Mrs. Jobes *442has been hospitalized at least three times since the performance of the jejunostomy for complications arising from its insertion and employment. It is through this tube that many medications, nutrition (a commercially produced synthetic pre-digested nutritional formula) and hydration are provided. An automatic electrically driven pump provides a constant slow rate of liquid to the bowel where it is digested. Mrs. Jobes is incontinent and requires a catheter to continuously irrigate her bladder. She receives routine enemas for bowel evacuation. Mrs. Jobes also has a tracheostomy, which is covered with a plastic shield to which a flexible tube is attached. Through this tube she receives air from a compressor in order to afford moisture to the tracheotomy. The mist is driven by a mechanical air compressor. There is a suction machine adjacent to the bed available if necessary to remove her saliva. Mrs. Jobes cannot swallow. She is given antibiotics when necessary, as well as medication intended to prevent seizures. Mrs. Jobes’ muscles have atrophied and her limbs are rigidly contracted. Her extremities. cannot move. Her closely clenched fingers are padded to prevent the skin between them from breaking down.
To summarize, Mrs. Jobes’ physical condition is extreme: major organs and systems have failed; she is profoundly comatose; her body has atrophied, contracted and deteriorated; she is totally incontinent. Her treatment is overwhelmingly burdensome and intrusive: she has been repeatedly hospitalized for more extended, extraordinary medical treatment; she requires two surgically-implanted devices;' she must be evacuated and irrigated; she must be handled constantly and prevented from self-mutilation. Her prognosis is hopeless; she cannot live without massive, extraordinary medical and health care measures. One may fairly and reasonably ask whether these bodily intrusions and invasions upon a person in such dire condition and so close to death, undertaken for the best of motives, have not reached a point that it is not possible to *443perpetuate her life without destroying her dignity and denigrating her humanity.13 As I stated in Conroy:
The medical and nursing treatment of individuals in extremis and suffering from those conditions entails the constant and extensive handling and manipulation of the body. At some point, such a course of treatment upon the insensate patient is bound to touch the sensibilities of even the most detached observer. Eventually, pervasive bodily intrusions, even for the best motives, will arouse feelings akin to humiliation and mortification for the helpless patient. When cherished values of human dignity and personal privacy, which belong to every person living or dying, are sufficiently transgressed by what is being done to the individual, we should be ready to say: enough. [Conroy, supra, 98 N.J. at 398-99 (concurring in part and dissenting in part).] 14
*444Based upon such factors it should be possible to structure critical treatment decisions that are reliable, understandable and acceptable.
[I]t may be possible to gradually discern acceptable societal norms of humane treatment of moribund patients. Just as constitutional norms of personal privacy must be shaped by “the traditions and collective conscience of the people,” so the common law of handling dying patients will be shaped by shared notions of how “we” citizens want to be treated at that critical juncture. That is, shared notions of human dignity will ultimately govern decisionmaking on behalf of incompetent moribund patients. [N. Cantor, Legal Frontiers of Death and Dying 76-77 (1987) (footnotes omitted) ]
See id. at 180-82. See generally id. at 58-76 (discussing the various decisionmaking criteria for incompetent patients).
Obviously, an “objective” or “best-interests” approach to treatment decisions in such cases has its own moral and conceptual problems. See supra page 440 & note 11. It is because of the unescapable moral ambiguity of these decisions that, before such approaches can be applied to right-to-die cases, appropriate decisionmaking processes must be developed. We should, I suggest, be able to turn to the persons regularly involved in life-and-death decisions. Such individuals are in the best position, borne of experience, training and attitude, to evaluate fairly and impartially the numerous factors that are relevant to a decision based in whole or in part on patient best-interests. These persons should include those we turn to in a substituted-judgment approach case, namely, the doctors and health-care providers and responsible government and institutional representatives. Included should also be persons grounded in religious and ethical training. See Rothenberg, “Demands for Life and Requests for Death: The Judicial Dilemma”, in Death and Decision 149 (E. McMullin, ed. 1978); post at 450-52. (Pollock, J., concurring) Their informed and collective judgment should be able satisfactorily to determine that in some cases *445treatment to perpetuate life in only its most primitive form has gone beyond any conceivable medical or moral purpose, its perpetuation offends fundamental sensibilities, and it should stop.
IY.
It is important to acknowledge that the inquiry posed by these appeals has as much to do with judicial attitudes as with judicial decisions. The emotional power of the right-to-die cases comes in part from our ability to identify with the actors in the legal drama. See Minow, supra, at 990-94. Judges as individuals bring to bear their own personal experiences and feelings to these cases and to the various parties involved — the patient, the family, the friends, the doctors and other health care providers. Because we identify with the actors, judges may by their own experiences be pulled too deeply into the drama of the situation.
There is some justified belief that judges cannot in these cases achieve evenhandedness and impartiality. See Rothenberg, supra, at 131-47. Hence, the response of this Court and of other courts to the right-to-die cases can in this respect be understood to be a search for solutions that will enhance impartiality and increase public confidence in particular treatment decisions. See Farrell, supra, 108 N.J. at 343-44. The courts are searching for procedures that will at the same time respect the common-law right to refuse medical treatment and assure the general public that such decisions are being made for legitimate reasons. It is a difficult and delicate balance. See Farrell, supra, 108 N.J. at 354-59.15 These considera*446tions underscore the importance of a sound judicial attitude toward this kind of controversy.
Equally important is the question touching upon the legitimacy of the judicial role. Some persons have argued that the courts should not intervene in the right-to-die area. Perhaps the most obvious justification for judicial involvement in this area is that the plaintiffs have come to the courts, and the courts may not turn them away. See Conroy, supra, 98 N.J. at 345; Farrell, supra, 108 N.J. at 341-344. Furthermore, the characterization of the judicial role as state intervention is inaccurate and misleading. It is important to recognize that the state has always been involved directly or indirectly. See Minow, supra, at 936-37, 951-53. For example, in Quinlan, Joseph Quinlan, the patient’s father, was not asking the state to intervene in the medical treatment decision; he was asking the courts to modify the nature of the intervention the state had already made: enjoining the local prosecutor from bringing criminal actions against any person involved in the choice to discontinue medical treatment. See Quinlan, supra, 70 N.J. at 18-19. The court may properly be viewed as performing its traditional role of adjudicating conflicting individual claims based on uncertain legal rights and duties in a case properly within its jurisdiction.
It cannot be overemphasized that the Court’s role in these cases is circumspect. This because of the inherent complexity of the problems, and their inescapable social and moral implications. As evident from our disposition in these appeals, judicial involvement can be understood not merely as an attempt to elaborate the distinction between a person refusing medical treatment and a person taking her own life. Rather, in these cases, the Court in effect has set broad boundaries within which *447deliberations are left to the intimate setting of doctor-patient-family. This can be seen as a form of judicial deregulation reflecting a deference to individual autonomy and to the professional relationship in which treatment decisions are made.
In the final analysis, we are struggling to structure a decisional framework that will generate trust, confidence, and acceptance. Our unease and dissatisfaction with particular right-to-die opinions mirror our failure thus far to achieve this level of assurance. The problems of trust and distrust hover over these cases.
Because of our incertitude, we cannot say that particular right-to-die decisions were clearly correctly decided while other decisions were dangerously wrong. Decisions of such painful difficulty cannot be so easily rejected or so quickly applauded. Given the “personal vulnerabilities” and the complexity of the issues involved in the right-to-die cases, no substantive or procedural standard will ever be able completely to dispel or hide the doubt engendered by these treatment decisions; the achievement of trust and confidence will be painstaking. See Minow, supra, at 998-99.
These considerations, spanning difficult individual and societal Interests, argue forcefully for legislative intercession and resolution. In the meantime, the Court cannot responsibly evade its own duty; it must decide these cases and promulgate the criteria upon which its decisions were based. In these cases, therefore, there are sound reasons why the Court should suggest the substantive criteria and decisional processes by which, in circumstances not quite covered by today’s decisions, the next tragic victim may secure a dignified ending of life.
This concurring opinion applies as well to In re Farrell, 108 N.J. 335 (1987) and In re Peter, 108 N.J. 365 (1987).
Cf. Matter of Guardianship of Hamlin, 102 Wash.2d 810, 689 P.2d 1372 (1984) (treatment decision for severely retarded patient in chronic vegetative state; patient had no family, relatives or close friends); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984) (treatment decision for infant in chronic vegetative state); Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981), rev'g, 78 A.D.2d 1013, 434 N.Y.S.2d 46 (1980) (treatment decision for terminally ill patient severely mentally retarded since birth); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (treatment decision for older adult severely mentally retarded since birth).
The Quinlan court may have been mistaken in its choice to base the decision on constitutional grounds. See Quinlan, supra, 70 N.J. at 38-42. "Viewed as a prod to intensive legislative consideration, the decision's guidelines seem defensible. But by casting its holding in federal constitutional terms, the New Jersey court may have needlessly foreclosed more intelligent legislative solutions in that state.” L. Tribe, American Constitutional Law § 15-11, at 937 (1978) (footnotes omitted). The Conroy decision was based on common law foundations, Conroy, supra, 98 N.J. at 348, and thus the standards promulgated were left open to judicial and legislative modification.
Voluntariness is itself a difficult concept. The line between motivations we consider normal and legitimate and those we consider distorting or coercive is not always clear. If a patient refusing medical treatment is depressed, should that asserted choice be disregarded because the patient might change her mind when she overcomes her depression? See Bartling v. Super. Ct., 163 Cal.App.3d 186, 209 Cal.Rptr. 220, 223-24 (1984). Should we respect the wishes of a patient who makes a treatment decision based partly on the pain her suffering brings her family? Cf. Bouvia v. Superior Court, 179 Cal.App.3d. 1127, 225 Cal.Rptr. 297, 306 (1986), review denied (June 5, 1986) (ordering a hospital to comply with a patient’s request to discontinue treatment): "If a right exists, it matters not what ‘motivates’ its exercise. We find nothing in the law to suggest the right to refuse medical treatment may be exercised only if the patient’s motives meet someone else’s approval.”
The concept of “undue influence” shows some of the tensions in the way we evaluate whether a decision respects or disrespects the value of self-determination. We recognize that some forms of influence by other persons are both normal and positive. But at some point, a point not easy to specify, that influence becomes "undue", and is seen as interfering with self-determination.
Cf. Superintendent of Belchertown v. Saikewicz, supra, 370 N.E.2d at 431:
[T]he decision in cases such as this should be that which would be made by the incompetent person, if that person were competent, but taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person.
*435This exercise of imagination becomes much more difficult once we consider that in some cases, see supra note 2, the decisionmaker must keep in mind not only the patient's present and future incompetency, but also the fact that she has never been competent in the past.
The balancing test in Quinlan described patients’ right to refuse medical treatment in a waxing and waning metaphor, there suggesting that in balance *436were only the individual's right of privacy and the State’s interest in preventing suicide: “the State's interest contra weakens and the individual’s right to privacy grows as the degree of bodily invasion increases and the prognosis dims.” Quinlan, supra, 70 N.J. at 41. The formulation of the balancing test has been criticized. See Capron, "Borrowed Lessons: The Role of Ethical Distinctions in Framing Law on Life-Sustaining Treatment”, 1984 Ariz.St.L.J. 647, 656-58. However, this balancing analysis — the objective or physical factors, such as the condition, treatment and prognosis of the patient, becoming increasingly important as doubts increase about whether we are promoting the patient’s right of self-determination — can be seen as reflecting a basic aspect of right-to-die cases.
Discussing treatment decisions for elderly incompetent patients influenced by an “objective" standard, one commentator stated:
The aged, especially nursing home residents, are an extremely vulnerable population because of their physical and mental impairments and their dependence on others in their daily lives. Many elderly patients have few or no surviving relatives and are socially isolated____ Watching a relative die can be emotionally draining; families may want not to prolong the end but to begin to grieve and resign themselves to their loss. Even those with more altruistic intentions cannot help but project their suffering onto the incompetent. The family that suffers with a relative in a debilitated condition may assume that the patient must be similarly miserable. [Merritt, "Equality for the Elderly Incompetent: A Proposal for Dignified Death", 39 Stanford L.Rev. 689, 724-25 (1987) (footnotes omitted).]
Of course there is a difference between even the most considered judgment about a hypothetical decision and actually deciding in the face of the particular circumstances. This may be especially true when, as here, the decision touches upon basic factors: if one is to go on living and in what manner. The difference between the hypothetical decision and the real one should give us some pause before we claim that decisions made for incompetent patients ever fully respect those patients’ right of self-determination.
The Peter case presents a further complication that can arise in applying the self-determination standard for an incompetent patient. There the substituted judgment is predicated in large measure upon the patient’s execution of a durable power of attorney, the patient assigning to a close friend the authority to make all medical decisons for her. Peter, supra, 108 N.J. at 378-380. Conroy recognized a durable power of attorney as one method by which a patient might express her intention not to have life-sustaining medical intervention. Conroy, supra, 98 N.J. at 361. However, it is not the mere signing over of authority that makes the resulting decision an expression of the patient’s right of self-determination. It is important that the durable power of attorney was given by the patient to someone who knows her well. Hilda Peter’s giving of a durable power of attorney to her close friend Eberhard Johanning was itself an assertion. Through her action, Ms. Peter showed that she thought Mr. Johanning knew her well enough to make the treatment decision for her that she would have wanted made. Obviously there will be cases involving durable powers of attorney in which confidence in the holder may not be so strong.
Cf. Conroy, supra, 98 N.J. at 367 (citations omitted):
We do not believe that it would be appropriate for a court to designate a person with the authority to determine that someone else's life is not worth living simply because, to that person, the patient's "quality of life" or value to society seems negligible. The mere fact that a patient’s functioning is limited or his prognosis dim does not mean that he is not enjoying what remains of his life or that it is in his best interest to die. More wide-ranging powers to make decisions about other people's lives, in our view would create an intolerable risk for socially isolated and defenseless people suffering from physical or mental handicaps.
Because of its criticism of a "quality of life” approach, see supra note 11, the majority opinion in Conroy distanced itself from any claim of judging a patient’s quality of life. The majority, in its limited objective and objective tests, sought a factor that all persons would consider as detriment — the factor of pain; using an arguable consensus to try to turn the subjective choice (what a given patient would have wanted) into an objective standard (what choice we can impute, to any patient). See id. at 367-68. Given that no such consensus should be presumed in treatment decisions, the courts should more directly confront, rather than finesse, the difficulties intrinsic to objective approaches. See Frug, "The Ideology of Bureacracy in American Law", 97 Harv.L.Rev. 1276, 1286-93 (1984) (discussing the inability to separate the subjective from the objective in legal standards).
In some cases, if authorization for the discontinuation of treatment is not granted, the treatment might maintain the patient in her chronic vegetative state indefinitely, "the longest recorded survival by such means extending for thirty-seven years.” Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626, 637 (1986). Arguably, for such patients, "further survival promises only a ‘life’ of unending torment, incapacity and, in effect, dehumanization." Amicus Brief, Medical Society of the State of New York, Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981).
A number of commentators have argued that “quality of life” factors— factors other than physical pain — should be considered in medical treatment decisions when there is insufficient evidence of the patient’s wishes. See, e.g., Merritt, supra note 8:
If no clear evidence of intent exists, a court must become involved in the decisionmaking. Life-sustaining treatment can be withheld or withdrawn if the court finds that such action would serve the patient’s best interests and result in a dignified, humane death. At this stage, the court should appoint a guardian ad litem to present all reasonable arguments why the treatment should not be terminated____
The court should first consider the probable duration of the patient’s life with treatment and the quality of that life. Quality is not measured by social utility or degree of intelligence, but is instead determined by the patient’s current level of conscious functioning as compared to the level of functioning that the individual has enjoyed during the majority of his life. The court can measure this by examining testimony about the patient’s level of brain activity, self-awareness, and awareness of others____ The potential for abuse is circumscribed by the ... requirement that the ... court first find that death is imminent and irreversible____
A court must weigh the duration and quality of life provided by treatment against the physical suffering, the extent of bodily intrusion required by treatment, and the resultant loss of patient dignity. {Id. at 734-35 (footnotes omitted).]
*444See President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 134-35 (1983) (suggesting “quality of life" factors to consider in substituted judgment treatment decisions).
There is a danger that if the Court “errs" in the direction of prescribing procedures that are too meticulous and burdensome, the objectives to be achieved in terms of self-determination may be frustrated. For example, the standards promulgated in Conroy provided a high degree of procedural protections. 98 N.J at 384-85. Though “well over 100" persons have inquired with the office of the Ombudsman for the Institutionalized Elderly regarding the *446procedures Conroy requires before medical treatment can be withdrawn from nursing home patients, only one case has been officially brought to the Ombudsman’s attention. Curbs on Ending Life Supports Are Ignored, New York Times, November 28, 1986, at B15, col. 1.