There is a rough consensus in medical ethics on the requirement ofrespect for patientautonomy:physicians must ultimately defer to patients' own decisions about themanagement of their medical care, so long as the patients are deemed tohave sufficient mental capacity to make the decisions in question. Forpatients who lack the relevant decision-making capacity at the time thedecision is to be made, a need arises for surrogate decision-making:someone else must be entrusted to decide on their behalf. Patients whoformerly possessed the relevant decision-making capacity might haveanticipated the loss of capacity and left instructions for how futuremedical decisions ought to be made. Such instructions are called anadvance directive. One type of advance directive simply designates whothe surrogate decision-maker should be. A more substantive advancedirective, often called a living will, specifies particular principlesor considerations meant to guide the surrogate's decisions in variouscircumstances, for example, “Do not prolong my life if I enterpersistent vegetative state,” or “I am a fighter: do notdiscontinue life-sustaining treatment no matter what happens tome.”

This general framework opens up a number of ethical issues. I shall setaside here a foundational issue that is a subject of its ownencyclopedia article: What are the criteria fordecision-making capacity? These must be specified before we can establish, on anygiven occasion, whether there would be any need at all fordecision-making by a third party (with the aid of an advance directiveor not). Assuming we have settled, using the appropriate criteria, thatsurrogate decision-making is indeed called for, the following mainissues arise:

Q1. Who should be the surrogate decision-maker?

Q2. On what basis should the surrogate make the decision? Whatconsiderations should she take into account? And, morespecifically,

Q2a. Should the advance directive be honored?

This article focuses on philosophical contributions to the last twosets of questions.

• 1. The orthodox legal view
• 2. Challenges to the orthodox view regarding the never competent
• 3. Conflicts across time in the formerly competent
  • 3.1 Threshold of authority approach
  • 3.2 Challenge I: Appeal to the forward-looking perspective of decision-making
  • 3.3 Challenge II: Exercise of will as the point of autonomy
  • 3.4 Challenge III: Loss of personal identity
  • 3.5 Challenge IV: Severance of prudential concern
• Bibliography
• Academic Tools
• Other Internet Resources
• Related Entries

1. The orthodox legal view

In legal contexts, two general standards or approaches to questionQ2 have been developed:

The Substituted Judgment standard:
The surrogate's task is toreconstruct what the patient himself would have wanted, in thecircumstances at hand, if the patient had decision-making capacity.Substantive advance directives are here thought of as a helpfulmechanism for aiding the application of Substituted Judgment. Themoral principle underlying this legal standard is the principle ofrespect forautonomy, supplemented by the idea that when a patient is not currently capableof making a decision for himself, we can nonetheless respect hisautonomy by following or reconstructing, as best we can, theautonomous decision he would have made if he were able. In a subsetof cases, a substituted judgment can implement an actual earlierdecision of the patient, made in anticipation of the currentcircumstances; this is known as precedent autonomy.

The Best Interests standard:
The surrogate is to decide basedon what, in general, would be good for thepatient. The moral principle underlying this standard is the principle ofbeneficence.This legal standard has traditionally assumed a quite generic view ofinterests, asking what a "reasonable" person would want under thecircumstances and focusing on general goods such as freedom from pain,comfort, restoration and/or development of the patient's physical andmental capacities. This is because the Best Interests standard hasmainly been employed when there is little or no information about thepatient's specific values and preferences. However, the concept ofbest interests is simply the concept of what is best for theperson. There is no reason why, in principle, the Best Interestsjudgment could not be as nuanced and individual as the best theory ofwell-being dictates.

In practice, the main difference between the two standards is oftenthought to be this. Substituted Judgment endeavors to reconstruct thesubjective point of view of the patient — i.e., the patient'sown view of his interests — whenever such reconstruction is aviable possibility. By contrast, the Best Interests standard allowsfor a more generic view of interests, without having to rely on theidiosyncratic values and preferences of the patient in question.

The applicability of these standards depends on the context in whichthe lack of decision-making capacity occurs. Let us distinguish twogroups of patients:

Formerly Competent:
Patients who used to have the relevantdecision-making capacity, but lost it, for example, due to Alzheimer's disease orother medical problems (or procedures such as surgical anesthesia)undermining normal brain functioning.

Never-been Competent:
Patients who have never had therelevant decision-making capacity, either because the capacity has notyet developed (as in children), or because of a permanent braindeficiency such as severe congenital mental retardation.

The Substituted Judgment standard seems well-suited to thecircumstances of the formerly competent patients since, in their case,there are past values or patterns of decision-making that couldpotentially serve as a basis for the reconstructed decision on thepatient's behalf. Furthermore, according to the current orthodoxy,prevalent especially in the law, Substituted Judgment is the preferredsolution for formerly competent patients because it promises to preserve respect forautonomy as an overriding moral consideration trumping concerns withbeneficence.The picture is this. If, ordinarily, we ought to respect patientautonomy rather than impose our own judgments on patients, we ought torespect autonomy even after the patient has lost decision-makingcapacity; and we can do so by following or reconstructing, as best wecan, the autonomous decision the patient would have made himself whenfaced with the current circumstances. In short, in dealing withsomeone who used to be competent, the widely accepted primacy ofrespect for autonomy over beneficence calls for SubstitutedJudgment. And this means that we should use the Substituted Judgmentstandard whenever possible and fall back on the Best Interestsstandard only when we lack sufficient information about the patient'sprior wishes and values to make Substituted Judgment practicable.

By contrast, for the “never-been competent” patients, theSubstituted Judgment standard does not seem applicable (e.g., Cantor 2005):if the patient has never been able to make autonomous decisions incircumstances such as the current one, it seems impossible toreconstruct what the patient's decision would have been. For thesepatients, the Best Interests standard is the only option.

When combined, these orthodox views generate one unified simpleordering of priority among the several standards and mechanisms forsurrogate decision-making, an ordering found in answers to Q2 and Q2aprevailing in the literature (e.g., Brock 1995):

1. Honor a substantive advance directive, as an aid to SubstitutedJudgment, whenever such directive is available.
2. Absentan advance directive, apply the Substituted Judgment standard based onavailable information about the patient's past decisions andvalues.
3. If you cannot apply the Substituted Judgment standard — either becausethe patient has never been competent or because information about thepatient's former wishes and values is unavailable — use the BestInterests standard.

Is this orthodox view correct?

2. Challenges to the orthodox view regarding the never competent

Concerning patients who have never been competent, the orthodox view,as it is typically interpreted, may be misleading in certain cases. Byrecommending the Best Interests standard as opposed to the SubstitutedJudgment standard, the orthodox view may help create the impressionthat, for those who have never had decision-making capacity, only aone-size-fits-all objective assessment of their interests, based ongeneric goals such as prolonging life or avoiding pain, isavailable. However, a person may lack decision-making capacity butnonetheless possess the proper starting points of decision-making, sothat a surrogate could still reconstruct deeply personal andidiosyncratic choices on the person's behalf. Consider a child or amildly retarded patient who lacks the capacity to make a sophisticatedmedical decision because she cannot fully grasp the complexconsequences of the available options, or because, if left to her owndevices, she would merely choose impulsively. Yet, very meaningful andpersonally distinctive issues may be at stake for this individual: forinstance, alternative treatments may differently impact herrelationships with loved ones or differently affect her ability tocontinue participating in deeply valued activities such as painting ordancing. In such cases, to best serve the interests of the patient,surrogates arguably need to reconstruct the subjective point of viewof the patient, and not just fall back on generic choices that“a reasonable person” would make under thecircumstances. In short, sometimes — especially in dealing withpatients with rich inner lives whose decision-making is neverthelessimpaired — the application of the Best Interests standard maylook an awful lot like an exercise of Substituted Judgment.

It is only with regards to patients who do not even possess thestarting points of decisions — for example, infants or more severelybrain damaged individuals — that the idea of reconstructing theindividual's own point of view as a basis for a decision does not evencoherently apply, and the more generic application of the BestInterests standard is called for.

Nonetheless, this is only a challenge to the narrow way in which theBest Interests standard has typically been employed: a more nuancedinterpretation of the orthodox view can handle the cases of thenever-competent appropriately. The application of Best Interests can,in many instances, procedurally resemble the application ofSubstituted Judgment because, on any reasonable theory ofwell-being,a large part of what counts as good for a person is attaining what shevalues or succeeding in what she cares about. It is thus notsurprising that reconstructing the individual's viewpoint is animportant part of a nuanced interpretation of Best Interests. Yet,even though in employing the Best Interests standard one usually musttake very seriously the subject's own viewpoint, one is not therebyrecreating the autonomous choice the person would have made. This isparticularly clear for those who have never been competent: one cannotbe respecting their autonomy (at least not on the usual understandingof autonomous choice), since they have never had autonomy. Moreover,even in undertaking to respect their "starting points ofdecision-making," one would not treat these starting points asentirely decisive. An individual who has never been competent mayvalue something that would be terribly destructive to her other values(and be incapable of realizing this), and so, to protect her, the BestInterests standard would have to focus on those other values. So hereagain the application of the Best Interests standard diverges fromwhat would most plausibly count as a reconstruction of the subject'sown autonomous choice. Given that Substituted Judgment is grounded inrespect for autonomy, it is thus clear why, according to the orthodoxview, Substituted Judgment makes no sense for the never-competent, andwhy the orthodox view prescribes for them the Best Interests standard,albeit interpreted in a suitably broad way.

As already noted, different views on how to apply the Best Interestsstandard roughly correspond to different theories ofwell-being. However, theories of well-being are normally developed with anordinary fully-capacitated human being in mind, so, when applied tothose whose incompetence is due, in part, to substantial deviationsfrom this paradigm, some theories need to be adjusted to accommodatehuman beings who do not at the time, or ever, possess the paradigmcapacities these theories presume (for example, the capacity toexperience the pleasures of the intellect, or the capacity todesire). The understanding of well-being and the specifics of applyingthe Best Interests standard in such cases must be tailored to thedetails of each particular real-life condition — and to thecorresponding levels of mental functioning. Interests of children,including infants, have received some attention in the literature(Buchanan and Brock 1990, ch.5, Schapiro 1999); similar tailor-madeanalyses are needed for individual mental illnesses and braindeficits.

3. Conflicts across time in the formerly competent

The orthodox view regarding the formerly competent faces deeperchallenges. In giving priority to Advance Directives and SubstitutedJudgment, the orthodox view overlooks the possibility that the earliercompetent self and the current incompetent self may have conflictinginterests. Advance Directives and Substituted Judgment are best suitedfor the contexts for which they were first developed in the law— conditions involving loss of consciousness such as persistentvegetative state — where the patient in the current incompetentstate cannot have interests potentially different from the interestsof the person he used to be. However, loss of decision-making capacityoften comes about in less drastic, yet permanent conditions, which canleave the current incompetent patient with what seem to be powerfulnew interests in his new phase of life. Classic cases of this sortoccur in Alzheimer's disease, other forms of dementia, andstroke. Before the loss of capacity, typically, the patient hadnumerous interests associated with his rich mental life and with acorrespondingly complex set of values. Once mental deteriorationprogresses, the patient's universe of interests shrinks and newinterests may become dominant. Sometimes the two sets of interests cancome into conflict. Imagine, for example, a fully competent patientwho, in anticipation of developing Alzheimer's disease, espouses astrong conviction, perhaps documented in an advance directive, thatshe does not wish to have her life prolonged in a demented state. Shedeeply identifies with her intellect, and thus views life withdementia as terribly degrading. But once she develops dementia, heridentification with her intellect drops out as a concern, so she losesthe corresponding desire not to prolong her life. In the meantime, sheis still capable of simple enjoyments — she likes gardening orlistening to music — and perhaps can even carry on meaningfulhuman attachments. Her current, truncated set of interests does seemto favor continued life. Such scenarios raise difficult questions ofhow the interests of the earlier and current self ought to be balancedin surrogate decision-making. Privileging advance directives andrecreating the judgment of the earlier self via substituted judgmentare no longer the obvious solutions, given this conflict.

Much of the philosophical literature on surrogate decision-making hasfocused on conflicts of this kind. There are subtle differences,though, in how this conflict is conceptualized — morespecifically, in how the interests of the earlier self are viewed— sometimes stemming from differences in what is taken as aparadigm example of the conflict. On one view, the relevant interestsof the earlier self are autonomy interests: what matters is that thechoices of the earlier self be heeded. With this emphasis, theconflict is between the autonomy of the earlier self and thewell-being of the current self. On an alternative conception, theinterests of the earlier self are well-being interests: what mattersis that the earlier self fares well overall. The conflict, then, isbetween the well-being of the earlier self and the well-being of thecurrent self. One may also consider both aspects of the conflict asrelevant. The arguments below apply to all three interpretations ofthe conflict.

3.1 Threshold of authority approach

One way to rescue the idea that the former self and its interestsought to have priority is to appeal to the specialauthorityof the former self over the current self. The grounds of this authorityare cashed out differently in different views, but the basic thought isthat the former self's superior capacities give her standing to governthe current self. Once the current self falls below a certain thresholdof capacity, her interests in her current state are so marginal as tono longer be authoritative for how she ought to be cared for, and theinterests of the earlier self trump.

Several lines of argument have been used to establish the authority ofthe earlier self over the current self. One is to deny altogether theindependence of the current self's interests. On this interpretation,the conflict described above is merely apparent. Once the current selffalls below the relevant threshold of capacity, she is incapable ofgenerating her own independent interests, and, despite superficialappearances to the contrary, her fundamental interests are reallydefined by the earlier self. The interests of the current self arestraightforwardly not authoritative since they are merely apparentinterests. Further, even were we to accept that the current self hasher own independent interests, there are other reasons to see thoseinterests as lacking authority. If one insists on the priority ofrespect for autonomy over beneficence, or if one views the capacityfor autonomy as the essential core of a person, the interests of theearlier self will be seen as having authority over the current selfbecause only the earlier self is capable of autonomy. Ronald Dworkin'sanalysis combines all of these lines of argument (Dworkin 1993).

Different versions of the threshold approach propose somewhatdifferent thresholds for when the current interests of a formerlycompetent individual cease to be authoritative. It is usually acceptedthat the mere loss of decision-making capacity is insufficient(Dworkin 1993, 222-29). Decision-making capacity is context-specificand depends on the complexity of the pertinent information that thedecision-maker needs to process. A person may lose the ability to makevery complex medical decisions, while still being able to decideperfectly well about simpler everyday matters. Lapses of this naturewould not give the surrogate a license to discount the currentwell-being of the individual in favor of what mattered to himearlier. By contrast, transformations that could leave authority withthe past self must involve a more global loss of capacity such thatone can no longer generate, in any context, interests of a special,morally weighty type. In crossing this threshold, one ceases to be abeing of a certain morally privileged kind: for instance, one ceasesto be an autonomous individual, or one turns from a person into anonperson. If an autonomous individual loses his capacity for autonomyaltogether — the thought then goes — he may have somelocal (possibly merely illusory) interests associated with thenon-autonomous self, but his affairs ought to be conducted inaccordance with his earlier wishes expressive of his autonomy. Or, inthe parallel version, if a person turns into a nonperson, he may havesome local (possibly illusory) interests as a nonperson, but hisaffairs ought to be conducted so as to advance the interests of theperson he used to be.

Within this basic framework, several variants are possible, dependingon what one takes to be the essential characteristics of a person, or,if one accepts the capacity for autonomy as the essence of personhood,depending on what one takes to be the core aspects of autonomy.Ronald Dworkin's influential work defends the capacity for autonomy asthe relevant threshold, with autonomy interpreted as “theability to act out of genuine preference or character or conviction ora sense of self” (Dworkin 1993, 225). If an individual has lostthe capacity for autonomy so understood, this view dictates that hercurrent interests (illusory or not) have no authority over decisionson her behalf, and surrogates ought to cater to her former interests,from before the loss.

It is, however, important to notice that the capacity for autonomy, asinterpreted by Dworkin, comprises two distinct abilities: (1) theability to espouse a “genuine preference or character orconviction or a sense of self” — what may be called, forshort, the ability to value — and (2) the ability to act out ofone's sense of conviction, that is, the ability to enact one's valuesin the complex circumstances of the real world. In many braindisorders these two abilities come apart. For example, a patient inthe middle stages of Alzheimer's disease may retain genuine values— she may hold on to family ties or to the conviction thathelping others is good­ — and yet, due to a rapiddeterioration of short-term memory, she may be perpetually confusedand unable to figure out how to enact these values in the concretecircumstances of her life. The set of values such a patient retainswould typically be a curtailment of the original set, introducing thepotential for conflict between the interests of the earlier andcurrent self. For example, earlier, the person may have valuedindependence above all else, and so was adamantly against having herlife prolonged if she developed Alzheimer's disease. Now, in moderatestages of Alzheimer's, she has lost her commitment to independence,but still values emotional connections to family members, and thus hasa strong interest in continuing to live. On Dworkin's approach todecisions on this individual's behalf, her current interests are notallowed to override her earlier interests because she has lost herstanding as an autonomous agent: due to her confusion, she is unableto act on her commitment to the family ties or on any other values— she is unable to run her life by her own lights, that is, togovern herself. However, on an alternative view (Jaworska 1999), whatmatters most for autonomy and personhood are the starting points ofautonomous decision-making: the genuine values that the person stillholds. So long as an individual is capable of valuing, she remains abeing of a morally privileged type, and interests stemming from hervalues have the authority to dictate how the individual ought to betreated. The person need not be able to enact her values on her own— it is part of the surrogate's role to assist with thistask. In short, on this alternative view, the capacity to value marksthe morally crucial threshold above which the current interests of aformerly competent individual remain authoritative for the surrogate'sdecisions and the conflicting interests of the earlier self can be setaside.

The two views I have just discussed share the underlying idea of athreshold of capacity beyond which an individual's current interestslose authority. This idea has been challenged in several ways.

3.2 Challenge I: Appeal to the forward-looking perspective of decision-making

The most straightforward challenge emphasizes that decision-makinginherently involves a present- and future-oriented perspective: thesurrogate must make the best decision for the patient in front of himabout how to manage this patient's life from now on. The patient mayhave had different interests in the past, but how can these berelevant to current decisions, which can only affect the present andfuture but not the past? This approach may accept it as unfortunatethat the patient's past interests were left unfulfilled, but insiststhat this unfortunate fact cannot be remedied, and that there is nouse in catering to bygone interests in current decision-making(Dresser 1986).

An advocate of the threshold view, such as Dworkin, would emphasizetwo points in response:

First, past interests can often be satisfied in the present. Dworkindistinguishes between what he calls “experiential” and“critical” interests (Dworkin 1993, 201-08). Experientialinterests are, roughly, interests in having desirable feltexperiences, such as enjoyment (and in avoiding undesirableexperiences, such as boredom). These interests are indeed tied to thepresent: there is no point in trying to satisfy one's pastexperiential interest in a specific enjoyment (for instance, inplaying with dolls), if one at present has no hope of still derivingenjoyment from what one used to enjoy in the past. By contrast,critical interests are not tied to the experience of theirsatisfaction; these are interests in having what one values or caresabout become a reality, such as a parent's interest in the success andprosperity of his child or a sailor's interest in preserving hisbeautiful wooden boat. According to Dworkin, such interests can bemeaningfully satisfied even if they belong in the past: for example,even after the sailor dies, it makes sense to preserve the boat hecared about and do so for his sake. Similarly, according to Dworkin,it makes sense to satisfy a formerly competent person's criticalinterests, such as the interest in avoiding the indignity of dementia,for her sake, even if she has ceased to understand those criticalinterests now.

Second, on a view like Dworkin's, the past critical interests of anindividual who formerly possessed the capacity for autonomy are, in acrucial sense, still her interests in the present, even if she can nolonger take an interest in them. This is an essential element of theclaim that the patient's earlier autonomous self has authority overher current non-autonomous self. The thought is this. For any person,the interests she has autonomously defined for herself are her mostimportant interests. And this is so even for an individual who haslost her capacity for autonomy or her personhood: so long as theindividual survives the loss as numerically the same entity, herinterests stemming from autonomy (or the subset of them that can stillbe satisfied) remain her most important interests, even if she can'tespouse them now, and they are, in this sense, “past.”Thus, Dworkin offers a powerful rationale for why satisfying“past” interests can still matter, and matter very deeply,in the present.

3.3 Challenge II: Exercise of will as the point of autonomy

The versions of the threshold view that see the capacity for autonomyas the relevant threshold can be challenged by approaches that castthe requirements of the capacity for autonomy as being so minimalthatany individual capable of generating independentinterests in his deteriorated state counts as autonomous. On suchapproaches, conflicts between earlier interests grounded in autonomyand later interests no longer so grounded become impossible, and theclaim of authority of the earlier autonomous self over the currentnon-autonomous self loses its bite: the threshold of autonomy is solow as to cease to mark any contestable difference in authority. SeanaShiffrin's response to Dworkin can be interpreted as a view of thissort (Shiffrin 2004). Shiffrin sees a key point of autonomy in theability to exercise one's own will: the ability to control one'sexperiences through the enactment of one's own choice. Shiffrinemphasizes that so long as an individual has this ability, itsexercise calls for protection, and this is a crucial part of what weprotect when we respect autonomy. On this picture, so long as anindividual is able to make choices, have preferences, exhibit a will,etc., there is a rationale for catering to his current interests, andso his current interests have authority to override interests espousedin the past.

The proponent of the threshold view may, in response, acknowledgethe importance of the ability to control one's experience through actsof will, but still insist that a more robust capacity for autonomy —for example, a capacity that involves expression of values and not justmere preferences — has moral importance of an altogether differentorder. This difference can then support the position that, in cases ofconflicts between an earlier self capable of such robust autonomy and acurrent self merely capable of exercises of will, the earlier selfretains authority and her interests ought to be heeded.

3.4 Challenge III: Loss of personal identity

According to the threshold views, the earlier self has authority todetermine the overall interests of the patient because the currentself has lost crucial abilities that would allow it to ground theseoverall interests anew. This picture assumes that the earlier andcurrent self are stages in the life of one entity, so that, despitethe talk of local interests associated with each life-stage, there isan underlying continuity of interests between the two. But this is avery substantial assumption, and it has been contested by appeal to aninfluencial account of the metaphysics ofpersonal identity over time, the psychological continuity account. Roughly,the idea is that, in the wake of a drastic transformation of one'spsychology such as Alzheimer's disease, one does not survive asnumerically the same individual, so whatever interests one'spredecessor in one's body may have had are not a suitable basis fordecisions on behalf of the new individual who has emerged after thetransformation (Dresser 1986). The lack of identity between the earlierand current self undercuts the authority of the former over thelatter.

This approach works best in cases in which we can assume that thenew entity emerging after the psychological transformation is still aperson: the interests of the earlier self cannot dictate how thecurrent self ought to be treated because it would be a clear violationof the rights of persons to allow one person to usurp the affairs ofanother. (Some may doubt whether loss of numerical identity withoutloss of personhood is even possible in any real-life cases of dementiaor brain damage, but the theoretical point still holds.) What, though,if the psychological deterioration is indeed severe enough to strip theresulting entity of the capacities of a person?

Some might see the loss of personhood as a particularly clear-cutsign of a change in numerical identity: if the current self is not evena person, surely the current self cannot be the same person as theearlier self. However, as David DeGrazia has emphasized, this line ofreasoning rests on an undefended (and controversial) assumption that weare essentially persons (DeGrazia 1999). For if we are not essentiallypersons — but, rather, for example, conscious minds of some other,less complex kind — an individual may very well lose the properties ofa person without any threat to his numerical survival.

Nonetheless, even if we are not essentially persons, on thepsychological view of our identity, we are essentially defined by ourpsychological properties. If these properties change drasticallyenough, the old individual ceases to exist and a new individual comesinto existence. And the transformation of a person into a nonpersondoes seem to be a drastic psychological transformation. Thus, even ifDeGrazia is right that loss of numerical identity does notautomatically follow from loss of personhood, it is certainlypossible, and perhaps even likely, on the psychological view of ouridentity, that a transformation of a person into a nonperson wouldinvolve such a profound psychological alteration as to result in anumerically new being. How should we adjudicate conflicts between theearlier and the current individual in such cases?

On one view, if a person turns into a new individual in the laterstages of dementia, this by itself undercuts the authority of theearlier person over her successor, regardless of whether the successoris a person or not. After all, why should an altogether differentindividual dictate how the current self is to be treated? However, morenuanced positions can also be found in the literature. Buchanan andBrock (1990) see the authority of the earlier self in cases of loss ofnumerical identity as crucially dependent on whether the current selfis still a person. They accept that if the current self is a person, itwould be a violation of her rights as a person to allow anotherindividual to commandeer her affairs. However, if the current self isno longer a person, he lacks the same rights. And, as Buchanan andBrock see it, the earlier self has “something like a propertyright… to determine what happens to [his] nonperson successor”(166). That is, if one ceases to exist by turning into a nonperson, oneretains a quasi-property right to control the resulting nonperson,presumably in much the same way that, when one ceases to exist byturning into a corpse, one has a quasi-property right to control theresulting corpse. Hence, on this approach, even if the earlier andcurrent self are distinct individuals, the earlier self has theauthority to determine what happens to the current self, so long as thecurrent self has been stripped of personhood. In this way, the idea ofa threshold of capacity beyond which the earlier self gains authorityto dictate the current self's affairs is resurrected, despite theassumption that the earlier and current self are not the sameindividual. But, this time, the basis of the authority is different: itis not grounded in the continuity of overall interests between the twoselves, but rather in the earlier self's quasi-property right. Note,though, that the claim that quasi-property rights could extend torights over successors who are nonetheless conscious beings iscontroversial and requires further defense.

3.5 Challenge IV: Severance of prudential concern

It is possible to retain the intuitive idea that the weakness ofpsychological connections between the two selves undermines theauthority of the earlier self over the current self without acceptingthe metaphysical view that the earlier and current self are numericallydistinct entities. Suppose we maintain that even the most drasticmental deterioration is not equivalent to death — that the sameindividual persists through the ravages of Alzheimer's disease. We canstill question the continuity of interest between the earlier andcurrent self by examining the concern the earlier and current selfwould appropriately have for one another (McMahan 2002).

Ordinarily, each of us has a very unique type of concern for our ownpast and future selves: it matters to you, in a very special way, whathappens toyou, what experiencesyou undergo, howyou act, etc., now, in the future, and in the past. Call thisspecial species of concernprudential concern. We normallyassume that prudential concern strictly tracks personal identity: onehas prudential concern only for oneself and one is always concernedwith oneself in this way. By contrast, Jeff McMahan has argued that (atleast within the bounds of numerical identity) prudential concern alsoought to track the degree of psychological ties: prudential concern oftwo selves at different stages of life for one another ought to weakenin proportion to the weakness of the psychological connection betweenthem (McMahan 2002, 69-82). In the context of the severe psychologicaltransformations caused by a disease like Alzheimer's, this means thatthe appropriate level of prudential concern of the earlier and currentself for one another would be rather slight. The two selves are notbound by a sufficiently strong common prudential interest, and so theperson's earlier interests, no matter how important, do not transfer asparticularly important interests of her current psychologicallydisconnected self. Any potential conflicts between the interests of thetwo selves are now akin to conflicts between two entities withaltogether independent interests.

David DeGrazia has tried to counter this picture by suggesting that,in addition to the factors discussed by McMahan, the earlier self'sappropriate degree of prudential concern for the current self can beboosted by the earlier self's autonomously formed self-narrative: ifthe earlier self identified with the current self, in the sense ofseeing the current self as a true stage in the unfolding complexnarrative of her life, strong prudential concern is warranted (DeGrazia2005, 196). Oddly, this view makes the rational level of prudentialconcern for the future partly a matter of choice of the earlier self.Yet, unlike our ordinary concerns for specific plans, projects, otherpeople, etc., which are up to us, prudential concern is a requirementof rationality and should not be a matter of choice. Just as we cannotrationally have prudential concern for someone else simply because wehappen to incorporate (perhaps delusionally) their life into ourself-narrative, similarly, if we are not otherwise warranted to haveprudential concern for our own future self, we cannot change thissimply by virtue of how we happen to construct our self-narrative.

Return, then, to McMahan's picture. If the interests of the earlierand current self are genuinely prudentially estranged and independent,how should we resolve conflicts between them?

When the current self is still a person, her rights as a person callfor allowing her interests to control her treatment and against lettingthe interests of the earlier self interfere; any weakness in thecurrent self's prudential connection to the earlier self merelyreinforces this stance. But how should we balance the interests of thetwo prudentially estranged selves when the current self is not aperson?

McMahan himself suggests that, in a conflict between an earlier personand a current nonperson, the interests of the earlier person ought totrump (McMahan 2002, 502-03). He emphasizes that the earlier self is a“higher self,” “rational and autonomous,” andthat her interests are associated with the dominant, more substantialand lengthy part of life, integrated — through strong prudentialconnections among its various stages — into one unified life-segment.But part of McMahan's reasoning is also that the interests of thecurrent nonperson are, as types of interests, not very substantial.Here McMahan relies on the specifics of the example of conflict hehappens to analyze (a version of the “preference to die”example we saw earlier), together with a controversial claim that aseverely demented patient would not have a strong interest incontinuing to live.

While McMahan may be right that strong interests of an earlierperson trump comparatively trivial interests of a current nonperson,his answer covers only a subset of possible conflicts between theearlier and current self. It is much more difficult to arbitratebetween the two selves when the interests of the current nonperson arealso substantial. I have argued (Jaworska unpublished) that when theinterests of the earlier person are relatively minor, substantialinterests of the current nonperson ought to trump. Thus, for example,if the earlier self had only a relatively weak preference to die —let's say she simply didn't want to further complicate relationshipswith family members for whom she happened not to care all that much —the current self's substantial interest in continuing to live ought toprevail. More controversially, I also argued that highly vitalinterests of the current nonperson ought to trump even somenon-trivial, rather serious interests of the earlier person. Thus, inthe standard version of the “preference to die” scenario, what isat stake for the earlier self is a rather serious interest inmaintaining the integrity of her life narrative. However, this interestdoes not reach the level of high vitality, because there is only somuch damage that a period of senility at the end of a life can do to anotherwise successful life-narrative. By contrast, the current self'sinterest in her very survival is more highly vital. It is also, unlikethe earlier self's interest, an active interest — an ongoing subjectof interests has reason to be strongly prudentially invested in it.These factors combined lend, in this scenario, priority to the interestof the current self.

Bibliography

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• Buchanan, A. E. and Brock, D. W., 1990,Deciding for Others:The Ethics of Surrogate Decision-Making, Cambridge: CambridgeUniversity Press.
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• DeGrazia, D., 1999, “Advance Directives, Dementia, and‘the Someone Else Problem’,”Bioethics, 13(5):373-91.
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• Dresser, R., 1986, “Life, Death, and Incompetent Patients:Conceptual Infirmities and Hidden Values in the Law,”ArizonaLaw Review, 28(3): 373-405.
• Dworkin, R., 1993,Life's Dominion: An Argument about Abortion,Euthanasia, and Individual Freedom, New York: Knopf.
• Jaworska, A., 1999, “Respecting the Margins of Agency:Alzheimer's Patients and the Capacity to Value,”Philosophy andPublic Affairs, 28(2): 105-138.
• Jaworska, A., unpublished, “Vanishing Persons and theAuthority of the Former Self: Dilemmas in Alzheimer's Disease.”
• McMahan, J., 2002,TheEthics of Killing: Problems atthe Margins of Life, Oxford: Oxford University Press.
• Schapiro, T., 1999, “What is a Child?”Ethics,109(4): 715-738.
• Shiffrin, S. V., 2004, “Advance Directives, Beneficence, andthe Permanently Demented.” inDworkin and His Critics withReplies by Dworkin, J. Burley (ed.), Oxford: Blackwell,pp. 195-217.

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Other Internet Resources

• Sample Advance Directive, American Academy of Family Physicians
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• The Limited Wisdom of Advance Directives, Chapter 2 of Taking Care: Ethical Caregiving in Our Aging Society, The President's Council on Bioethics Report.

Related Entries

autonomy: personal |beneficence, principle of |decision-making capacity |legal obligation and authority |paternalism |personal identity |personal identity: and ethics |respect |well-being

Acknowledgments

Special thanks to Jennifer Hawkins and Govind Persad for very helpful comments on earlier drafts ofthis entry. Thanks also to Caleb Perl for research assistance.