Dementia, Decision-Making, and the Modern (Adult) Guardianship Paradigm: Bentley v Maplewood Seniors Care Society

• Author: Margaret Isabel Hall
• Position: Assistant Professor, Faculty of Law, Thompson Rivers University
• Pages: 293-314

(2015) 1 CJCCL 293

Dementia, Decision-Making, and

the Modern (Adult) Guardianship

Paradigm: Bentley v Maplewood

Seniors Care Society

Margaret Isabel Hall*

 is paper considers the meaning of decision-making, including substitute decision-

making, for persons with dementia.  e paper discusses the historical development of

adult guardianship, from the King’s stewardship of the property of “fools” and “lunatics”

to the modern mechanisms of substitute decision-making, and the relationship between

substitute decision-making and a particular ideal of autonomy.  e paper concludes with

a discussion of Bentley v Maplewood Seniors Care Society, a case concerning the

present choices of a woman with dementia, the decisions set out in the “living will” she

drafted many years earlier (prior to dementia), and the decisions made by the woman’s

(purported) representatives on her behalf.  e case invites us to consider whether the

decisions of the former, mentally capable self can ever trump the choices of the current

self with dementia.

* Assistant Professor, Faculty of Law,  ompson Rivers University.

294

Hall, Dementia, Decision-Making, and the Modern (Adult) Guardianship

Paradigm

I. I

II. A T D-M: T M A G

P

III. H C: S  M P

IV. S D: M’ S

V. BENTLEY V MAPLEWOOD SENIORS CARE SOCIETY

VI. C

I. Introduction

The case of Bentley v Maplewood

1 raises a number of profound questions

about the nature of self in dementia, the nature and signi cance of

“decisions” and “decision-making,” and the role of substitute decision-

makers (including the former self through an advance directive) vis-à-vis

the person with dementia. What is the nature of consent for an individual

with advanced dementia, who departs in dramatic physical and mental

ways from the norm (including his or her former “normal” self), and how

can it be recognised? Should consent ever be separated from decision-

making and if so, why and under what circumstances? What are the

ethical implications of enabling a former self to make life terminating

decisions on behalf of a fundamentally changed present self? What is

the role of the individual’s representative in this situation? As Ronald

Dworkin would have it (see discussion, infra), should a person’s prior

(intellectual) decision override contrary (embodied) behaviour by the

present self-with-dementia? What is “decision-making” and why does it

matter?

 is article considers the issues raised by the Bentley case, as they

both illustrate and challenge the modern adult guardianship paradigm.

1. 2014 BCSC 165 [Bentley].