Abstract
Guardians have little statutory or case law to guide them on how to make decisions for incapacitated persons. The majority of jurisdictions have no articulated decision-making standard for non–health care decisions but most likely follow a general custom of “best interest.” Fourteen jurisdictions have adopted a combination of substituted judgment and best interest standards, but most fail to clarify for guardians the manner in which these standards should be applied. Theories about the use of substituted judgment and best interest range from a strict substituted judgment approach, which requires that decisions follow the incapacitated person’s prior directions, to a strict best interest approach, which dictates that decision makers may only consider actions that will promote the incapacitated person’s welfare. The Uniform Act language and the National Guardianship Association (NGA) standard represent hybrid approaches; each recognizes that often no information exists upon which to base a true substituted judgment and that a true substituted judgment, when possible, might sometimes be harmful to the incapacitated person.
Recommended Citation
Whitton, Linda S. and Frolik, Lawrence A.
(2012)
"Surrogate Decision-Making Standards for Gaurdians: Theory and Reality,"
Utah Law Review: Vol. 2012:
No.
3, Article 8.
Available at:
https://dc.law.utah.edu/ulr/vol2012/iss3/8