Wednesday, December 26, 2007

Substituted Judgment

This past week, my favorite radio show, This American Life, focused on the theme of "home alone," with stories about people living alone (episode here). The first of three segments considered people who lived alone and then died alone, with most of the segment taken up with the saga of an elderly woman named Mary Ann. Lying on death's door in the hospital, Mary Ann calls the one human being she barely knows---the woman who delivers her prescriptions from the pharmacy---to plead that she feed her two dogs, whom Mary Ann has left tied up in her home. Mary Ann tells the woman that she will reimburse her for the costs, saying the dogs are all she has. Days later, Mary Ann dies. Emily, the social worker whose job it is to piece together Mary Ann's life sufficiently to arrange a burial and the disposal of her estate, arrives at the house and the very first thing Emily does is to call animal control to take away the dogs, presumably to a municipal shelter where they almost certainly will be euthanized within days if not hours. Emily spends the balance of the Act vainly searching for a person with whom Mary Ann connected, never seeming to notice that she, Emily, had essentially killed the only two living beings with whom there was a close connection. Emily eventually locates relatives willing to take over the funeral arrangements and the disposal of the estate, but these relatives were not in any way close with Mary Ann.

We also learn that Mary Ann had at least $6,000 to her name. No doubt this would have been enough money to pay for the care and feeding of Mary Ann's dogs for a much longer time than they were kept alive at animal control, with the possibility that the dogs would be adopted. With nothing to go on but Mary Ann's statement that these dogs were all she had, and no close relatives or friends in the picture, wouldn't that have been the obvious use to put her money, at least if the point of Emily's job is to discern the deceased's wishes? And if so, why didn't this possibility even cross Emily's mind, or for that matter, the minds of This American Life's producers?

The answer, I think, sheds light on an always-fraught position in the law: that of surrogate decision maker. Emily's job was not so different from the job of those people who must make a substitute judgment for those who are no longer (or perhaps never were) competent to make the judgment for themselves. Most commonly, these judgments concern end-of-life matters. Much of the case law and academic literature critical of substituted judgments questions the ability of the person being asked to make such a judgment to consider the interests of the person affected rather than his or her own interests. Thus, critics note, it is tempting to think that the relative in a persistent vegetative state would want to be disconnected from life support if that course would mean that the surrogate decision maker inherits a larger estate or even just gets to move on with life.

These are legitimate worries, but Mary Ann's story points to another risk. Emily had no personal stake in what was to become of Mary Ann or her possessions. Yet I believe she nonetheless asked the wrong question. She should have asked, "what would Mary Ann have wanted," to which the answer pretty clearly would have been to have her dogs looked after. Instead, I suspect that Emily asked "what would I have wanted if I were Mary Ann?" Now, in an important sense, all we can ever ask about another person's wishes and feelings---especially a stranger's wishes and feelings---is "what would those wishes and feelings feel like if I had them?" This is perhaps the main point of Thomas Nagel's wonderful essay What is it Like to Be a Bat? We can't really know what it is like for a bat to be a bat. The closest we can come is to imagine what it would be like for a person to be a bat. And, Nagel says and I agree, the same is true between people. Emily can't know what Mary Ann would have wanted. She can only know what she, Emily, would want if she were Maryann. That said, surely one person can do better than Emily did in approximating the wishes and feelings of another. Sure, Emily can't eliminate her Emily-ness in her effort to imagine herself as Mary Ann. But she could have tried a lot harder.

Posted by Mike Dorf


Paul Scott said...

I certainly agree with idea that Emily should have done a better job effectuating what are likely to be Mary Ann's wishes.

That said, the presumption that the animals were killed within hours is almost certainly not correct. Most states have laws that require the animals be kept for a minimum number of days. In California, that minimum number is five days (it was three, but one of the Governator's acts was to extend this to five).

There should probably not be an assumption that the dogs ended up killed as opposed to having been adopted.

Another, unmentioned, problem with Emily's actions - one that should have worked in the animals' favor for once - is that they are property, and thus presumably part of the estate over which Emily was responsible. From a property perspective, why are Emily's actions toward the animals acceptable? Clearly she would have been derelict in her duties if she had opened up her apartment to the public and simply given away the property within.

A final note, which is not really relevant to the legal analysis post-fact, but none the less an important lesson, is that of the importance of after-death preparations. Mary Ann, of course, could have prevented all of this from happening if she had simply had a proper will in place creating a trust for the animals with whatever property she had remaining.

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