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Indiana Law Journal

Document Type

Article

Publication Date

2024

Publication Citation

99 Indiana Law Journal 1289 (2024)

Abstract

Under the doctrine of substituted judgment, decision-makers for adults without legal capacity are to make the decision the person in their care would have made. In cases involving irreversible cognitive decline—where substituted judgment is most frequently applied—scholars have struggled to explain it, resorting to mysterious metaphysical claims. These philosophical acrobatics seem necessary because the person for whom the decision is made cannot appreciate it, and, philosophically, they may not be the same person they had been.

This Article offers a novel account of substituted judgment that circumvents these challenges. I argue first that the doctrine is straightforwardly justified in cases of temporary incapacity, such as that of a psychotic episode, and then explain why the law might justifiably treat permanent incapacity as though it were temporary. In cases of temporary incapacity, substituted judgment is grounded in love. “Love” describes (at least) intimate knowledge of and concern for the personal identity of another. To make the decision someone would have made while they are temporarily unable to is an act of love.

And there are at least three reasons the law might justifiably treat permanent incapacity as though it were temporary. First, there is substantial medical uncertainty about the prognosis of brain disorders. Second, it is characteristic of love that it is partially constitutive of the identities of those who love—a doctrine justified by love might recognize this. Finally, a liberal private law might acknowledge that, under many worldviews, what looks like permanent incapacity is in fact temporary.

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