Surrogate Decision-Making Standards for Guardians: Theory and Reality

Abstract

This Article addresses the two theoretical reference points used by the law to frame how guardians should make decisions for incapacitated persons—the substituted judgment standard and the best interest standard. Simply stated, the substituted judgment standard directs the guardian to choose the alternative that the incapacitated person would have chosen if still able to make decisions. The best interest standard, by contrast, directs the guardian to choose the alternative that produces the greatest good or benefit for the incapacitated person. Neither standard, however, is clear-cut when implemented. For example, when attempting to use substituted judgment, how should a guardian determine what the incapacitated person would have chosen? The spectrum of possibilities includes prior written directions, past conversations with the person before incapacitation, current conversations with the incapacitated person, and what the guardian knows about that person’s values and preferences. Even when prior written directions exist to guide a guardian, the guardian might reasonably question whether those directions would be different if the incapacitated person had known at the time of writing all of the relevant information about current circumstances.