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The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform, Lawrence A. Frolik, Linda S. Whitton
The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform, Lawrence A. Frolik, Linda S. Whitton
Law Faculty Publications
The introduction in 1997 of "substituted judgment" as a guiding principle for guardian decisions was a key contribution of the UPC to guardianship reform. The current UPC section 5-314(a) instructs guardians to "consider the expressed desires and personal values of the ward" when making decisions and to "at all times...act in the ward's best interest." This dual mandate for guardian decisions was intended to promote the self-determination interests of incapacitated adults. This article argues that in practice the standard has failed to achieve this goal. It analyzes the shortcomings of UPC Section 5-314(a) and other statutory decision-making standards and offers …
Surrogate Decision-Making Standards For Guardians: Theory And Reality, Linda S. Whitton, Lawrence A. Frolik
Surrogate Decision-Making Standards For Guardians: Theory And Reality, Linda S. Whitton, Lawrence A. Frolik
Law Faculty Publications
This Article examines the theoretical and practical implications of the substituted judgment and best interest standards for decision making by guardians. After providing an overview of the current decision-making standards in guardianship statutes, the Article synthesizes theoretical debates about what these standards mean and whether they provide an effective paradigm for surrogate decision makers. The authors then use new survey data to offer conclusions about the degree to which the substituted judgment and best interest standards are understood and meaningfully applied by guardians.