by James Toomey
If you are supposed to make a legally binding decision on behalf of someone incapacitated by dementia, chances are the law will tell you to apply the “substituted judgment” standard—you will be asked to make the decision the person for whom you are deciding would have made, if they had capacity. But why? You might think that the decision they would have made is a very bad one. And it’s not as though someone in the late stages of dementia is coming back to appreciate what you’ve done for them. Indeed, according to many philosophers (and ordinary people), someone in the late stages of dementia might not even be the same person they had been previously — why decide based on what some now-gone person would have wanted?
In Love, Liberalism, Substituted Judgment, recently published in the Indiana Law Journal, I offer a novel account of why the law might be justified in endorsing the substituted judgment standard in dementia cases, notwithstanding these sorts of difficulties. The argument proceeds in three steps. First, I suggest that dementia cases might not be the right place to start. In cases of temporary incapacity, such as that caused by a transient psychotic episode, questions about whether decisions made in the interim are really for the person don’t arise — that person will come back, and their life will be affected one way or another by what happened in the interim. The substituted judgment standard applies in these cases too, and, indeed, that is where it historically arose.
This leads us to the second step. Can substituted judgment be justified in these temporary cases without the sorts of difficulties in dementia cases? I argue that in temporary cases, substituted judgment can be justified with reference to a concept of love. Whatever else love may be, I take it that to love someone (not only romantically but in relationships of friendship and family) is to know deeply who they are, and to care that their life continue the way that they want it to.
If that’s right, then to make the decision another person would have made while they are unable to is an act of love. Doing so presupposes that one knows what that other person would have done. And it is perhaps best explained as compatible with a concern that the other’s life continues in the way that they want it to. Substituted judgment in temporary cases, in other words, puts someone in the position that they would have been in had they been able to decide for themselves. It is an act of love to do that on their behalf.
Granted, whatever contested role the concept of love may have in ethics, you might wonder whether so romantic a concept does (or even should) have a role in our law. But, as I’ve argued elsewhere, the legal system presumes that personal identity is a foundational normative concept that the law, in a variety of ways, recognizes, draws on, and protects. Insofar as the relevant concept of love involves a certain kind of posture toward personal identity, it is not at all inconsistent — or even particularly surprising — to see it play a justificatory role in law.
That brings us, finally, to the third step of the argument. What we have so far is an account for why the law might be justified in endorsing substituted judgment in cases of temporary incapacity. The question now is whether the law might have reasons — whether or not substituted judgment could be justified in permanent cases on its own terms — to presume or act as though all cases of incapacity are temporary.
I suggest that there are at least three such reasons the law might presume the impermanence of incapacity. First, the law might take notice of the substantial uncertainty that remains regarding brain disorders, coupled with the history of both and genuine, gradual progress in this domain. If we are unsure of when it is that a person’s identity is forever lost in dementia, cognizant that the best answers to that question today may well turn out to be wrong tomorrow, and if we assume that treating a person as a non-person is a worse moral failing than treating a non-person as a person, a legal presumption that any person’s identity could come back is justifiable.
Second, it matters that the justification of substituted judgment in temporary cases is love — characteristically a relational concept, one that is identity-constituting both for the loved and lover. If love toward the absent person justifies substituted judgment in temporary cases, perhaps the law takes cognizance of the role it plays in the identity of the decider by endorsing it in permanent cases as well.
And, in the final possibility, we come to the titular liberalism. I have been assuming that dementia is indeed a form of permanent incapacity. That is because I, personally, take personal identity to be a product of the brain, destructible with the deterioration of the brain. Many people reject that premise. If you believe, for instance, that personal identity is comprised of an indestructible soul, you might think that there is no such thing as truly permanent incapacity. For you, dementia might be another form of temporary incapacity.
Of course, it would be illiberal — and, indeed, unconstitutional — for the law to make either of us subscribe to the other’s worldview. A lets both of us pursue the life we want consistent with our own. But what is not illiberal is for the law to adopt a default rule consistent with majority assumptions out of which those who dissent might opt. And substituted judgment in permanent cases might just be that — the philosophical materialism prevalent in philosophy and law departments is a minority view outside of them. If substituted judgment is justifiable in temporary cases, and if under a broad set of widely held worldviews, dementia just is a form of temporary incapacity, a liberal legal regime might justifiably endorse it as a baseline. If I don’t think it makes sense, I can write a durable power of attorney.
James Toomey is an Associate Professor of Law at the University of Iowa College of Law
