Law Offices of Lee A. Drizin, Chtd.
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An Analysis of Guardianship Issues
Guardianship conflicts with the normative value of personal liberty; in public guardianship the government subsumes individual rights under its parens patriae power in order to protect persons who are unable to care for or make decisions for themselves.
Literature concerning guardianship, particularly the legal literature, is heavily weighted toward the preservation of individual self-determination (Alexander, 1990; Barnes, 1992; Horstman, 1975; Regan, 1972), while the medical literature favors promotion of what is in an individual’s best interest (Callahan, 1984; Buchanan & Brock; 1986; Dickens, 1989; Veatch, 1984).
Discussions of personal autonomy and competence concern surrogate decision making when surrogates make health care decisions for another person. A surrogate’s ability to respect an individual’s autonomy and self-determination is confounded when persons move from competency to incompetency. Surrogate decision making comes into play not only when persons’ competency comes into question but also when the consequences of their decisions become more serious (Buchanan & Brock, 1986; Culver & Gert, 1990).
According to Schafer28 (1988, p. 212), “The less likely the harm, the less serious the harm, the more oppressive the restriction of liberty and the less justified would be the imposition of restrictions.” He suggested employing the civil liberties model, not the judicial model, to address moral and value issues.
Surrogate decision making assumes two dimensions: decision making when the wishes of a person are known, and decision making when the wishes of a person are unknown. Some individuals prepare for the possibility that they may some day become incapacitated, and they make their wishes known by naming a surrogate decision maker and spelling out their treatment requests legally through the use of advance directives, a viable alternative to guardianship. When the wishes of an incompetent person are known, the decision making standard to employ is that of substituted judgment; when the wishes of a person are unknown or in conflict with recommended medical treatment, the decision making standard is that of best interests. The discretion within these standards is variable (Buchanan & Brock, 1986). Dworkin (1986) contended that the importance of precedent autonomy derives from an individual's prior statements and should govern an individual's future treatment decisions; persons must have actual past decisions that contemplate the situation in which they are now--precedent autonomy will not apply to most persons. However, Dworkin's presumptions were rebutted by Buchanan and Brock (1986) and Culver and Gert (1991) because the decisions a competent person makes reflect decisions from the perspective of a competent person, who might not adequately anticipate the exigencies of treatment decisions and alternatives from the perspective of an incompetent person.
Dresser criticized the accepted approach to decision making for incompetent persons, especially Dworkin’s precedent autonomy, which is directed to a future situation that may never happen; autonomy is not the sole issue. The treatment preferences of competent persons reflects what matters to them as competent persons. For incompetent persons, lower level functioning ecomes more important. “It is crucial to keep social judgments on what constitutes dignified treatment for demented patients from overriding such patients’ clear and demonstrable interests in receiving treatment.” (Dresser, 1992, p. 83)