David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Journal of Medicine and Philosophy 17 (6):605-645 (1992)
This article reviews the medieval law background of the parens patriae jurisdiction of the state as it has been exercised over incompetent persons who formerly were competent adults, concluding that the fiduciary standard implied in the statute De Prerogative Regis (1324), which is the basis for modern guardianship status, requires that the court and guardian adopt an attitude of respectful friendship toward the incompetent person, just as though they were to be accountable to the person himself, were he to recover his faculties and become competent once more. This ficuciary responsibility, originating in the device of the "use" or trust employed for the management of the estates of lunatics, contrasts with the self-interested feudal guardianship used for the custody of "natural fools" or "idiots", who were under paternalistic arrangements. The article argues that because the determination of legal incompetence and the consequent transfer of custody of the person and property of an incompetent person to the state would result in a drastic forfeiture of liberty and property interests were it not for the fiduciary obligation owed by the state to the incompetent, the state is under an obligation to exercise its fiduciary duties in good faith and may not impose states policies or advance state interests of its own in the supervision of the affairs of incompetent persons, apart from interests arising legitimately out of the state's institutional interest in providing competent administration for the benefit of the incompetents themselves. Keywords: concept of the person, Cruzan, feudalism, guardianship, incompetent person, parens patriae CiteULike Connotea Del.icio.us What's this?
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Lynne Rudder Baker (2008). “Tätigsein Und Die Erste-Person-Perspektive” (Agency and the First-Person Perspective). In Bruno Niederbacher & Edmund Runggaldier (eds.), Was Sind Menschliche Personen? Onto Verlag.
W. Stephen Westermann, Property Entitlements and Legal Personhood: A Conception of the Property Entitlement Based on a Unified View of Anti-Interference and Anti-Discrimination Rules with Respect Both to Interests Related to Existing Assets and Interests Predicated on Transactions.
John Thomas Wilke (1981). Personal Identity in the Light of Brain Physiology and Cognitive Psychology. Journal of Medicine and Philosophy 6 (3):323-334.
Guido Melchior (2011). Privileges of First-Person Reference and of Third-Person Reference. Acta Analytica 26 (1):37-52.
Michael A. Rie (1992). Practicing Medicine, Fiduciary Trust Privacy, and Public Moral Interloping After Cruzan. Journal of Medicine and Philosophy 17 (6):647-664.
Thomas Hurka (2006). A Kantian Theory of Welfare? [REVIEW] Philosophical Studies 130 (3):603 - 617.
Richard O'Neil (1983). Determining Proxy Consent. Journal of Medicine and Philosophy 8 (4):389-403.
Edward Wierenga (1983). Proxy Consent and Counterfactual Wishes. Journal of Medicine and Philosophy 8 (4):405-416.
Added to index2010-08-22
Total downloads4 ( #247,088 of 1,096,714 )
Recent downloads (6 months)2 ( #162,598 of 1,096,714 )
How can I increase my downloads?