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Full-Text Articles in Medical Jurisprudence
Narrative Capacity, James Toomey
Narrative Capacity, James Toomey
Elisabeth Haub School of Law Faculty Publications
The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.
The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in …
"As Long As I'M Me": From Personhood To Personal Identity In Dementia And Decision-Making, James Toomey
"As Long As I'M Me": From Personhood To Personal Identity In Dementia And Decision-Making, James Toomey
Elisabeth Haub School of Law Faculty Publications
As people, especially older people, begin to develop dementia, we confront ethical questions about when and how to intervene in their increasingly compromised decision-making. The prevailing approach in philosophically-inclined bioethics to tackling this challenge has been to develop theories of “decision-making capacity” based on the same characteristics that entitle the decisions of moral persons to respect in general. This Article argues that this way of thinking about the problem has missed the point. Because the disposition of property is an identity-dependent right, what matters in dementia and decision-making is an individual’s personal identity with their prior self, not their moral …