Guardianship, Citizenship, & Theorizing Substitute-decisionmaking Law
University of Sydney - Faculty of Law
April 17, 2012
BEYOND ELDER LAW: NEW DIRECTIONS IN LAW AND AGEING, I. Doron and A. Soden, eds., Springer, pp. 1-17, 2012
Sydney Law School Research Paper No. 12/25
This chapter reviews different approaches to management of declining cognitive and decision-making powers of aged citizens to determine whether the most appropriate contemporary balance points have been found between philosophical values of autonomy and paternalism, the respective roles of state and civil society, respect for cultural values and pluralism, and tolerance of reasonable degrees of individual risk. Particular attention is devoted to the implications of preferences for supported decision making rather than substitute decision making, as expressed in recent international conventions. It argues that the civil citizenship goal of maximal social participation by aged citizens retains its appeal, resonating with contemporary ‘capability’ theories of justice. However countries must remain mindful of the need to craft laws, institutions and programs in light both of domestic cultural values and evidence-based assessments of competing legal or other policy instruments.
Number of Pages in PDF File: 27
Keywords: supported decisionmaking, alternatives to guardianship, unintended consequences, net widening, cultural difference
JEL Classification: K10, K30
Date posted: April 18, 2012
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