Latham, S. (2023). "6: US Laws Relating to Decision-Making on Behalf of P". In Capacity, Participation and Values in Comparative Legal Perspective. Bristol, UK: Bristol University Press. DOI: 10.51952/9781529224474.ch006
Guardianship and conservatorship are matters for state law in the US, so there are multiple legal approaches to the problem of establishing and instantiating the values of P in proceedings regarding P’s healthcare and the disposition of P’s property. Many states suffer confusion as between best-interest and substituted judgement standards in making decisions on behalf of persons who have lost capacity, and almost none actually require consultation with P about P’s values after a guardian or conservator has been appointed. Even in states that are clear on the legal standards to be applied in probate proceedings, there is little judicial review or oversight, and widespread neglect and fraud. Several reform movements have improved the situation in recent years; and private accrediting bodies for guardians/conservators have established more clear standards in the field. Importantly, there has also been a recent movement among a number of states to use ‘supported decision-making’ techniques to help ensure that the values of persons who have partially lost capacity are explored and applied to important decisions about their healthcare and the disposition of their property.
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