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Pace University

Elisabeth Haub School of Law Faculty Publications

2021

Elder Law

Dementia

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Full-Text Articles in Law

How To End Our Stories: A Study Of The Perspectives Of Seniors On Dementia And Decision-Making, James Toomey Jan 2021

How To End Our Stories: A Study Of The Perspectives Of Seniors On Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

Because dementia can cause individuals to make decisions that they otherwise would not, the law needs a mechanism to determine which decisions are entitled to the respect of the legal system and which may be overridden by others. In the philosophical literature, three primary theories for how to make this determination have been offered. First, "Cognitivism" posits that whether a decision should be recognized is a function of the mechanical functioning of the individual's brain at the time the decision is made. Second, "Essentialism" holds that decisions should be recognized so long as they are consistent with the cluster of …


"As Long As I'M Me": From Personhood To Personal Identity In Dementia And Decision-Making, James Toomey Jan 2021

"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 …