A Critique of Guardianship Theory from the Perspective of Catholic Social Thought: The Tension Between the Duty to Protect and Preservation of Legal Autonomy

Abstract

In recent times, guardianship law has been gaining much public attention – for a variety of reasons. With a steadily aging domestic and international demographic, an increasing number of people contemplate how they will be cared for if they lose capacity. A new variety of alternatives to guardianship have been adopted by states to allow for “supported“ decision- making in numerous ways, while various forms of limited guardianship have emerged as alternatives to the traditional “one size fits all” model of plenary guardianship prevalent in the past. In addition, some advocate abolishing guardianships entirely, believing them to be an affront to the human rights of persons with disabilities. Many have written various critiques of guardianships from diverse perspectives.

This article will address guardianship theory through a different lens: the perspective of Catholic social thought on the dignity of the human person. In one sense, to appoint a guardian seems a routine matter. Probate and family courts conduct guardianship proceedings constantly. Yet, there is something morally profound in this routine matter as it dramatically curtails the legal rights of one in favor of expansive legal control by another. The implications of allowing one person to act so fully in the stead of another demands deep reflection. As in other matters, Catholic teaching may be brought to bear on this issue A Catholic view of the dignity of the human person contributes two rich and potentially conflicting lines of thought on this question. The duty to protect a vulnerable person and his or her dignity is a sacred responsibility. A guardianship -- if undertaken by the right person with the right motives -- can accomplish this protection in a highly effective way. On the other hand, because guardianships bring with them a dramatic loss of human autonomy, they can also pose a potential threat to that very dignity, particularly when they are abused or unnecessary.

As legal debates rage both domestically and internationally, there is a profound moral question underlying guardianships that requires deeper reflection on more fundamental questions of human nature, the duty to protect, the obligations of protectors, the value of human autonomy, and the limits, vel non, of human independence. It also forces contemplation about the reality of human vulnerability in all its forms and demands appreciation for both a rightly ordered duty to care and the parameters of authentic freedom. The paper begins with a brief description of guardianships and their ramifications from domestic and international legal perspectives. Next, it will explore relevant Catholic social thought with respect to both the duty to protect vulnerable persons and the importance of human autonomy. Then, it will address what these principles may bring to bear on (1) the substance of guardianship laws and, more importantly, (2) the moral obligations of those who undertake the role of guardians.