Beyond Elder Law

pp 1-17


Guardianship, “Social” Citizenship and Theorising Substitute Decision-Making Law

  • Terry CarneyAffiliated withFaculty of Law, University of Sydney Email author 

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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 decisionmaking rather than substitute decisionmaking, 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.