Medical Decision-Making for Incapacitated Elders: A ‘Therapeutic Interests’ Standard

International Journal of Law & Psychiatry, Forthcoming

FSU College of Law, Public Law Research Paper No. 446

31 Pages Posted: 20 May 2010

See all articles by Marshall B. Kapp

Marshall B. Kapp

Florida State University - College of Law and College of Medicine

Date Written: May 19, 2010

Abstract

Some older individuals lack sufficient present cognitive and/or emotional ability to make and express autonomous decisions personally. In those situations, health care providers routinely turn to available formal or informal surrogates who often must apply the best interests standard in making decisions for the incapacitated person. This article contends that defining the best interests standard of surrogate decision making for older adults in terms of optimal or ideal choices (truly the patient’s “best” interests) frequently sets out an unrealizable goal for surrogates to satisfy. Instead, a decision-making standard based on the incapacitated person’s “therapeutic” interests is more realistic and hence more honest to adopt and apply from legal, ethical, and medical perspectives.

Suggested Citation

Kapp, Marshall, Medical Decision-Making for Incapacitated Elders: A ‘Therapeutic Interests’ Standard (May 19, 2010). International Journal of Law & Psychiatry, Forthcoming, FSU College of Law, Public Law Research Paper No. 446, Available at SSRN: https://ssrn.com/abstract=1611919

Marshall Kapp (Contact Author)

Florida State University - College of Law and College of Medicine ( email )

625 Eagle View Circle
Tallahassee, FL 32311
United States
618-534-1022 (Phone)

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