Guardianship, Citizenship, & Theorizing Substitute-decisionmaking Law

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

27 Pages Posted: 18 Apr 2012  

Terry Carney

The University of Sydney Law School

Date Written: April 17, 2012

Abstract

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.

Keywords: supported decisionmaking, alternatives to guardianship, unintended consequences, net widening, cultural difference

JEL Classification: K10, K30

Suggested Citation

Carney, Terry, Guardianship, Citizenship, & Theorizing Substitute-decisionmaking 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. Available at SSRN: https://ssrn.com/abstract=2041103

Terry Carney (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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