OPG

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Office of Public Guardian | Concord, NH

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Decision Tree

When it comes to decision-making for individuals who lack the capacity to make their own choices, two primary standards are employed by OPG: substituted judgment and the best interest standard.


Here’s a breakdown of the differences.

Substituted Judgment

  • Focus: This standard requires a surrogate decision-maker to make decisions based on what the incapacitated person would have chosen if they were able to make their own decisions.
  • Goal: To honor the individual’s autonomy and values, even in their incapacitated state.
  • How it works: The surrogate considers the person’s expressed desires, personal values and past decisions to determine what they would have preferred in the current situation.
  • Example: If a person who is now incapacitated was an artist, a guardian applying substituted judgment might make decisions that reflect the person’s known commitment to their artistic endeavors.
  • Limitations: It can be difficult to accurately determine what an incapacitated person would have wanted, especially if there’s limited information about their preferences or if they’ve never been able to make autonomous decisions in similar circumstances.

Best Interest Standard

  • Focus: Decisions are made based on what is objectively best for the incapacitated person’s health and welfare.
  • Goal: To promote the individual’s well-being and safety.
  • How it works: The decision-maker considers factors like medical information, prognosis and community standards.
  • When it’s used: Typically applied when the person’s preferences are unknown or would be harmful.

Key Differences

  • Priority: Substituted judgment emphasizes autonomy, while the best interest standard focuses on well-being.
  • Application: Substituted judgment requires knowledge of the person’s preferences, while the best interest standard is used when this information is lacking.
  • Legal Standing: Substituted judgment is often the primary standard, with the best interest standard as a fallback.

The standard used in practice depends on factors like the individual’s history, preferences, and well-being, often involving a balanced approach.

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