Introduction

This chapter will describe, broadly, the variety of state laws which govern guardians’ decision-making on behalf of persons who have lost, or who have never had, capacity to make their own decisions about healthcare or finances (such persons being termed, by the convention of this book, ‘P’). It begins with a brief discussion of the federalist tradition in the US that has left the law of guardianship to the several states, resulting in a striking lack of uniformity across the country. It then moves on to discuss what it is to have and to lose capacity at law, and the general nature of guardianships of the person of P and of the estate of P. Exploration of guardianship of the person of P necessarily leads us into brief discussion of non-guardianship means by which P's medical choices, particularly around end-of-life, can be made by P in advance of loss of capacity, or by P's family members. Next, the chapter considers the legal standards by which P's interests are meant to be pursued. A short evaluative section points out how very little consideration the American law of guardianship offers to P's values after P has lost capacity. The chapter then takes optimistic note of a new development in American guardianship law, the movement for ‘supported judgement’, which may make for room for P's values; and concludes.

Some aspects of federalism in the US

The law of healthcare decision-making, the law of property and the law of guardianship are all areas that, by tradition more than by necessity, have been left to be governed by the US states rather than by the US federal government. The reasons for this are many. First, the US Constitution provides that Congress may only regulate matters that touch on ‘commerce among the several states’. This was, at least until the 20th century, thought to be a serious limit on the reach of federal law. Historically, medical treatment and decision-making, and actions relating to the preservation of estates, were thought to have had no impact on interstate commerce.