One person should be the designated decision-maker, but all involved family members should be aware of the patient's values and desires for care to enable them to support the decision-maker to use
substituted judgment (Ortiz & Casey, 2017).
suggests an alternative to the
substituted judgment test in Boyd and
(16) Under the OPPG standards, to the extent that a ward's goals and preferences have been made known to a professional guardian, they should honor those goals or preferences, except when they would cause "significant impairment to a [w]ard's physical, mental, or emotional health." (17) Therefore, the default standard is
substituted judgment, requiring the professional guardian to consider the decision their ward would have made when the ward had capacity.
Before 2009, Massachusetts lacked any codification of the
substituted judgment proceeding for treatment with antipsychotic medications for individuals declared incompetent for reasons other than mental illness.
Substituted judgment is a principle that allows a surrogate decision-maker to attempt to establish, with as much accuracy as possible, what decision an incompetent patient would make if he or she were competent to do so.
(179) The court distinguished its conclusion from the decision in Schulze I (180) and criticized the use of
substituted judgment to approve these gifts under SCPA 17-A as ill-conceived because most individuals for whom an SCPA 17-A guardian is sought are assumed to never have had capacity.
Substituted judgment has significant though frequently overlooked limitations.
This type of judgment shall only be made when a
substituted judgment cannot be made.
The court deferred a decision on whether a
substituted judgment approach (i.e., what course of treatment an incompetent patient would likely choose if the person was currently capable of making an informed decision) should be employed.
As Idziak writes, the preferred standard for proxy decision makers is the "principle of
substituted judgment," in which the proxy is advised to advocate based on the "values and desires of the patient." (6)
Substituted judgment directs that judges base their decisions on what the incompetent person would decide "if he or she were competent" (In re Moe, 1991, p.
To do otherwise is to risk slipping into the murky paternalism of
substituted judgment.
