Category: Disability

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. Read More