The Journal of Law, Medicine & Ethics, vol. 45, 3: pp. 402-420. , First Published October 18, 2017
You can download penultimate draft Here.
ABSTRACT: Within bioethics, two prevailing approaches structure thinking about the role of medical surrogates who must make treatment decisions on behalf of patients who have lost their decisional capacities. One approach views the surrogate primarily as the patient’s agent, obediently enacting the patient’s predetermined will. The second approach views the surrogate as the patient’s custodian who must use discretion to determine how best to protect the patient’s interests. I argue that both of these approaches idealize away some of the ethically relevant features of advance care planning that make patient preferences so inscrutable and surrogate decision-making so burdensome. I propose a new approach to surrogate decision-making, the Fiduciary Agency Approach. On this approach, the surrogate-patient relationship is an agency relationship in virtue of the surrogate’s authority to represent the will of the patient through her vicarious decisions. The relationship is fiduciary in virtue of the discretionary power over the interests of the patient delegated to the surrogate for the purposes of fulfilling her authorized role. One upshot of my view is that surrogates must sometimes go against the expressed dictates of the patient’s advance directive in the interest of representing the patient’s will as her agent.