Whose “Best Interests”? Concerns About the Use of Fiduciary Framing in Long-Term Care Decisions

Abstract

As part of reimagining America’s long-term care system, this article will explain how today’s system is, in many ways, the logical extension of historical presumptions that are foundational to our understanding of family, medical, and organizational governance as “fiduciary” in nature. More specifically, much of our current language (operating in someone’s “best interests,” acting consistent with their “substituted judgment” if now incapacitated) and jurisprudence (parens patriae, trusts, guardianships, conservatorships, and corporate governance) descends from centuries of equity and law centered on the management of property, not people or health. This legal framework is firmly rooted in English statutes, court opinions, organizational charters, and treatises that anticipated or addressed questions of incapacitated property owners and mismanagement of property and assets that are held in trust, whether in the form of an estate, trust, or corporation. Because of the “other-regarding” nature of these concerns, these matters have been overwhelmingly heard in courts of chancery and equity rather than courts of law (which were centered on the reasonable, autonomous man). A look at this history highlights underlying presumptions of: (1) personal and family wealth (typically in the form of real property), (2) incapacitated people (or “objects of charity”) for whom feoffees, trustees, guardians, conservators, or directors make all decisions, and (3) unpaid, enslaved, or underpaid caregivers. These presumptions (and the fiduciary framework built upon them) encourage us to look past the day-to-day reality of those with long-term care needs and the millions of underpaid and unpaid caregivers who keep our neighbors, friends, and loved ones clean, clothed, fed, and engaged. We need to replace these antiquated tools with framing that more accurately reflects the reality of chronic illness and the need for sustainable caregiving