Rethinking the adult guardianship response : mental capacity and vulnerability in the context of dementia in old age

The current discourse around supported decision making and the Convention on the Rights of persons With Disabilities has challenged medico-legal guardianship and the mental capacity construct at its conceptual core, re-conceptualising decision-making as a skill which can be developed and/or enabled through practice and support. Two major gaps in the supported decision making paradigm have precluded a true paradigm shift, however: a failure to consider the needs of persons unable to express will or preference of any kind in relation to day to day tasks, and a failure to consider exploitation through the high-jacking of mere choices (i.e. non-genuine decisions) by others. The phenomenological nature of dementia intersects with the distinctive relationship and social contexts of old age to make these gaps especially meaningful in the context of dementia in old age. While a guardianship model that includes substitute decision-making would fill these gaps, the theoretical and practical problems associated with the current medico-legal guardianship model must be addressed. Using the methodology of pragmatic inquiry, this study proposes re-thinking adult guardianship as a response to vulnerability (the impaired performance of thinking processes in connection with an individual’s social, relationship and material contexts), and sets out a preliminary guardianship model constructed on that basis.Law, Peter A. Allard School ofGraduat