As the population of elderly Americans swells in coming decades, growing numbers of citizens will experience some degree of cognitive incapacity and require the assistance of surrogate decision-makers. Consequently, the decisions of guardians, conservators, and agents will become increasingly important. Experts have frequently noted that, despite modern reforms, doctrines concerning surrogate decision-making are problematic and often do not result in outcomes that maximize autonomy and promote respect for the unique personhood of the adult with diminished capacity. Unlike other writings that seek to refashion or clarify surrogate decision-making statutes and standards, this Article suggests that a more fundamental problem lies in our inherent, if unwitting, tendency to infantilize the elderly and other adults with diminished capacity. Until we acknowledge and examine our biases and prejudices about age and incapacity, we as surrogate decision-makers will continue to make unfortunate choices for those whom we seek to assist, regardless of definitional changes in decision-making statutes and standards.
Ralph C Brashier, Incapacity and the Infancy Illation, 71 Arkansas Law Review 1 (2018).