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April 6, 1994

Health Care Decision Making for Persons With DisabilitiesAn Alternative to Guardianship

Author Affiliations

From the University of Maryland School of Law, Baltimore (Dr Herr), and Baltimore City Community College (Ms Hopkins).

JAMA. 1994;271(13):1017-1022. doi:10.1001/jama.1994.03510370069035

PHYSICIANS, in their concern for informed consent, must sometimes seek substituted consent to treatment. Yet one of those means, guardianship, is a legal institution in danger of collapse. For individuals allegedly incompetent because of advanced age, mental illness, or mental retardation, guardianship is a device for obtaining substituted consent to medical treatment, managing personal property, and gaining plenary authority over virtually every aspect of financial and personal decision making. To its critics, it is a "dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft, and neglect."1 Guardianships can intrude on fundamental liberty and privacy rights, fail to limit the scope of the guardian's authority, deny procedural safeguards, and lack adequate monitoring and periodic review.2-4

With informed consent a requirement of both the common law and the Omnibus Budget

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