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Hastings Law Journal

Authors

Amy L. Brown

Abstract

The law favors traditional family relationships in many ways. In some cases, this preference amounts to unfair discrimination against people who form nontraditional primary relationships. One such situation involves medical proxy decisionmaking for unmarried adults involved in serious, quasi-marital relationships. Medical decisionmaking statutes and cases demonstrate a strong preference for legal relatives to act on behalf of incapacitated adults. Courts and doctors have applied this preference mechanically, without considering whether the selection of a legal relative will protect the incapacitated patient's interest in selfdetermination. This Note discusses one tragic case clearly demonstrating the unfairness of rote selection of a legal relative as guardian of an unmarried adult, without regard to the patient's wishes or to the primary relationship she formed before incapacity. The Note argues that the law must be updated to reflect the changes in society, including rising numbers of couples who either choose not to marry or are unable to marry legally, and a loosening of traditional family ties. Judges and doctors no longer should assume that the closest legal relative is also the person with the closest relationship to the patient, best able to know the patient's wishes and act on her behalf. Instead, all of the incompetent adult's significant relationships should be considered equally eligible to act on the patient's behalf, and regardless of who becomes the proxy decisionmaker, all of the patient's significant relationships should be respected and maintained.

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