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What is the difference between substituted judgement and best interest?

When using substituted judgement, a guardian makes a decision that the protected person would make if he or she had the capacity. This is usually based on preferences previously expressed by the protected person. In contrast, a decision made based upon best interest requires the guardian to determine what he or she believes would be best for the protected person. This can be made because doing what the person wants would be unreasonably risky or impractical.

As an example, consider a situation in which a protected person owns a valuable sports car that he or she can no longer use. Although the car is unused, the protected person wishes to keep it stored in an expensive garage. Using substituted judgement, the guardian would keep the car and continue paying the garage fees as long as possible because this is what the protected person wants. However, if the guardian determines that it is impractical to honor the expressed preference because of other expenses, then applying a best interest approach the guardian could sell the car. Note in these two examples, the guardian should first attempt to apply substituted judgement to achieve the known and reasonable preference of the protected person. However, in the second part of the example, when the protected person’s wishes could be impractical and not to the benefit of the estate, then the guardian should make a decision based on a best interest standard.

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