Sirens' Lure of Invented Consent: a Critique of Autonomy-Based Surrogate Decisionmaking for Legally-Incapacitated Older Persons

Courts and other surrogate decisionmakers sometimes justify the decision to withhold life-sustaining treatment and care from a legally incapacitated older person as an exercise of that person's autonomy. Autonomy may be invoked even when the older person never issues an informed consent at the time a decision needs to be made. A consent to die may be invented by the surrogate on the older person's behalf through the creation of a "hologram" persona and a "dispositional" directive. The surrogate then asserts that the older person, not the surrogate, is the "autonomous" decisionmaker.

In this Article, Mr. Bopp and Mr. Avila argue that such an approach contradicts traditional autonomy principles that recognize: (1) that the right to choose for oneself lapses upon incapacity; and (2) that those incapacitated from choosing for themselves retain protectable interests in life-sustaining treatment and care. The authors suggest that invented consent is flawed in principle and practice, and conclude that it should be rejected in favor of "patient-centered" decisionmaking that errs on the side of life.