The Medical Surrogate as Fiduciary Agent

Journal of Law, Medicine and Ethics 45 (3):402-420 (2017)
  Copy   BIBTEX


Within bioethics, two prevailing approaches structure how we think about the role of medical surrogates and the decisions that they must make on behalf of incompetent patients. One approach views the surrogate primarily as the patient's agent, obediently enacting the patient's predetermined will. The second approach views the surrogate as the patient's custodian, judging for herself how to best safeguard the patient's interests. This paper argues that both of these approaches idealize away some of the ethically relevant features of advance care planning that make patient preferences so inscrutable and surrogate decision-making so burdensome. It proposes a new approach to surrogate decision-making, the Fiduciary Agency Approach. On this novel approach, the surrogate has authority to not only act on the patient's behalf as the patient's agent but also to decide on the patient's behalf as the patient's fiduciary. One upshot of this new approach is that surrogates must sometimes go against the expressed dictates of the patients' advance directives not necessarily because doing so would be in the patient's best interest but rather because doing so would best represent the patients' will.



    Upload a copy of this work     Papers currently archived: 78,003

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Fiduciary Duty and Socially Responsible Investing.George R. Gay - 2003 - Philosophy in the Contemporary World 10 (1):49-54.
Socially Responsible Investing: Is Your Fiduciary Duty at Risk?William Martin - 2009 - Journal of Business Ethics 90 (4):549-560.
Trust and Fiduciary Law.Matthew Harding - 2013 - Oxford Journal of Legal Studies 33 (1):81-102.


Added to PP

23 (#508,834)

6 months
4 (#201,438)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Dana Howard
Ohio State University

References found in this work

Authority and Reason‐Giving1.David Enoch - 2014 - Philosophy and Phenomenological Research 89 (2):296-332.
The Moral Magic of Consent: Heidi M. Hurd.Heidi M. Hurd - 1996 - Legal Theory 2 (2):121-146.
Deciding for Others.Gerald Dworkin, Allen E. Buchanan & Dan W. Brock - 1991 - Philosophical Quarterly 41 (162):118.

View all 15 references / Add more references