## 1. The orthodox legal view




In legal contexts, two general standards or approaches to question
Q2 have been developed:



> 
> 
> **The Substituted Judgment standard**:  
>  The surrogate's task is to
> reconstruct what the patient himself would have wanted, in the
> circumstances at hand, if the patient had decision-making capacity.
> Substantive advance directives are here thought of as a helpful
> mechanism for aiding the application of Substituted Judgment. The
> moral principle underlying this legal standard is the principle of
>  respect
>  for 
>  autonomy,
>  supplemented by the idea that when a patient is not currently capable
> of making a decision for himself, we can nonetheless respect his
> autonomy by following or reconstructing, as best we can, the
> autonomous decision he would have made if he were able. In a subset
> of cases, a substituted judgment can implement an actual earlier
> decision of the patient, made in anticipation of the current
> circumstances; this is known as precedent autonomy.
> 
> 
> 
> **The Best Interests standard**:  
>  The surrogate is to decide based
> on what, in general, would be good for the
> patient. The moral principle underlying this standard is the principle of
>  beneficence.
> This legal standard has traditionally assumed a quite generic view of
> interests, asking what a "reasonable" person would want under the
> circumstances and focusing on general goods such as freedom from pain,
> comfort, restoration and/or development of the patient's physical and
> mental capacities. This is because the Best Interests standard has
> mainly been employed when there is little or no information about the
> patient's specific values and preferences. However, the concept of
> best interests is simply the concept of what is best for the
> person. There is no reason why, in principle, the Best Interests
> judgment could not be as nuanced and individual as the best theory of
>  well-being
>  dictates.
> 
> 
> 




In practice, the main difference between the two standards is often
thought to be this. Substituted Judgment endeavors to reconstruct the
subjective point of view of the patient -- i.e., the patient's
own view of his interests -- whenever such reconstruction is a
viable possibility. By contrast, the Best Interests standard allows
for a more generic view of interests, without having to rely on the
idiosyncratic values and preferences of the patient in question.



The applicability of these standards depends on the context in which
the lack of decision-making capacity occurs. Let us distinguish two
groups of patients:



> 
> 
> **Formerly Competent**:  
>  Patients who used to have the relevant
>  decision-making capacity,
>  but lost it, for example, due to Alzheimer's disease or
> other medical problems (or procedures such as surgical anesthesia)
> undermining normal brain functioning.
> 
> 
> 
> **Never-been Competent**:  
>  Patients who have never had the
> relevant decision-making capacity, either because the capacity has not
> yet developed (as in children), or because of a permanent brain
> deficiency such as severe congenital mental retardation.
> 
> 
> 




The Substituted Judgment standard seems well-suited to the
circumstances of the formerly competent patients since, in their case,
there are past values or patterns of decision-making that could
potentially serve as a basis for the reconstructed decision on the
patient's behalf. Furthermore, according to the current orthodoxy,
prevalent especially in the law, Substituted Judgment is the preferred
solution for formerly competent patients because it promises to preserve respect for
 autonomy
 as an overriding moral consideration trumping concerns with
 beneficence.
The picture is this. If, ordinarily, we ought to respect patient
autonomy rather than impose our own judgments on patients, we ought to
respect autonomy even after the patient has lost decision-making
capacity; and we can do so by following or reconstructing, as best we
can, the autonomous decision the patient would have made himself when
faced with the current circumstances. In short, in dealing with
someone who used to be competent, the widely accepted primacy of
respect for autonomy over beneficence calls for Substituted
Judgment. And this means that we should use the Substituted Judgment
standard whenever possible and fall back on the Best Interests
standard only when we lack sufficient information about the patient's
prior wishes and values to make Substituted Judgment practicable.




By contrast, for the "never-been competent" patients, the
Substituted Judgment standard does not seem applicable (e.g., Cantor 2005):
if the patient has never been able to make autonomous decisions in
circumstances such as the current one, it seems impossible to
reconstruct what the patient's decision would have been. For these
patients, the Best Interests standard is the only option.




When combined, these orthodox views generate one unified simple
ordering of priority among the several standards and mechanisms for
surrogate decision-making, an ordering found in answers to Q2 and Q2a
prevailing in the literature (e.g., Brock 1995):


1. Honor a substantive advance directive, as an aid to Substituted
Judgment, whenever such directive is available.
2. Absent
an advance directive, apply the Substituted Judgment standard based on
available information about the patient's past decisions and
values.
3. If you cannot apply the Substituted Judgment standard -- either because
the patient has never been competent or because information about the
patient's former wishes and values is unavailable -- use the Best
Interests standard.




Is this orthodox view correct?


## 2. Challenges to the orthodox view regarding the never competent




Concerning patients who have never been competent, the orthodox view,
as it is typically interpreted, may be misleading in certain cases. By
recommending the Best Interests standard as opposed to the Substituted
Judgment standard, the orthodox view may help create the impression
that, for those who have never had decision-making capacity, only a
one-size-fits-all objective assessment of their interests, based on
generic goals such as prolonging life or avoiding pain, is
available. However, a person may lack decision-making capacity but
nonetheless possess the proper starting points of decision-making, so
that a surrogate could still reconstruct deeply personal and
idiosyncratic choices on the person's behalf. Consider a child or a
mildly retarded patient who lacks the capacity to make a sophisticated
medical decision because she cannot fully grasp the complex
consequences of the available options, or because, if left to her own
devices, she would merely choose impulsively. Yet, very meaningful and
personally distinctive issues may be at stake for this individual: for
instance, alternative treatments may differently impact her
relationships with loved ones or differently affect her ability to
continue participating in deeply valued activities such as painting or
dancing. In such cases, to best serve the interests of the patient,
surrogates arguably need to reconstruct the subjective point of view
of the patient, and not just fall back on generic choices that
"a reasonable person" would make under the
circumstances. In short, sometimes -- especially in dealing with
patients with rich inner lives whose decision-making is nevertheless
impaired -- the application of the Best Interests standard may
look an awful lot like an exercise of Substituted Judgment.




It is only with regards to patients who do not even possess the
starting points of decisions -- for example, infants or more severely
brain damaged individuals -- that the idea of reconstructing the
individual's own point of view as a basis for a decision does not even
coherently apply, and the more generic application of the Best
Interests standard is called for.




Nonetheless, this is only a challenge to the narrow way in which the
Best Interests standard has typically been employed: a more nuanced
interpretation of the orthodox view can handle the cases of the
never-competent appropriately. The application of Best Interests can,
in many instances, procedurally resemble the application of
Substituted Judgment because, on any reasonable theory of
 well-being,
a large part of what counts as good for a person is attaining what she
values or succeeding in what she cares about. It is thus not
surprising that reconstructing the individual's viewpoint is an
important part of a nuanced interpretation of Best Interests. Yet,
even though in employing the Best Interests standard one usually must
take very seriously the subject's own viewpoint, one is not thereby
recreating the autonomous choice the person would have made. This is
particularly clear for those who have never been competent: one cannot
be respecting their autonomy (at least not on the usual understanding
of autonomous choice), since they have never had autonomy. Moreover,
even in undertaking to respect their "starting points of
decision-making," one would not treat these starting points as
entirely decisive. An individual who has never been competent may
value something that would be terribly destructive to her other values
(and be incapable of realizing this), and so, to protect her, the Best
Interests standard would have to focus on those other values. So here
again the application of the Best Interests standard diverges from
what would most plausibly count as a reconstruction of the subject's
own autonomous choice. Given that Substituted Judgment is grounded in
respect for autonomy, it is thus clear why, according to the orthodox
view, Substituted Judgment makes no sense for the never-competent, and
why the orthodox view prescribes for them the Best Interests standard,
albeit interpreted in a suitably broad way.



 
As already noted, different views on how to apply the Best Interests
standard roughly correspond to different theories of
 well-being. 
However, theories of well-being are normally developed with an
ordinary fully-capacitated human being in mind, so, when applied to
those whose incompetence is due, in part, to substantial deviations
from this paradigm, some theories need to be adjusted to accommodate
human beings who do not at the time, or ever, possess the paradigm
capacities these theories presume (for example, the capacity to
experience the pleasures of the intellect, or the capacity to
desire). The understanding of well-being and the specifics of applying
the Best Interests standard in such cases must be tailored to the
details of each particular real-life condition -- and to the
corresponding levels of mental functioning. Interests of children,
including infants, have received some attention in the literature
(Buchanan and Brock 1990, ch.5, Schapiro 1999); similar tailor-made
analyses are needed for individual mental illnesses and brain
deficits.


## 3. Conflicts across time in the formerly competent



The orthodox view regarding the formerly competent faces deeper
challenges. In giving priority to Advance Directives and Substituted
Judgment, the orthodox view overlooks the possibility that the earlier
competent self and the current incompetent self may have conflicting
interests. Advance Directives and Substituted Judgment are best suited
for the contexts for which they were first developed in the law
-- conditions involving loss of consciousness such as persistent
vegetative state -- where the patient in the current incompetent
state cannot have interests potentially different from the interests
of the person he used to be. However, loss of decision-making capacity
often comes about in less drastic, yet permanent conditions, which can
leave the current incompetent patient with what seem to be powerful
new interests in his new phase of life. Classic cases of this sort
occur in Alzheimer's disease, other forms of dementia, and
stroke. Before the loss of capacity, typically, the patient had
numerous interests associated with his rich mental life and with a
correspondingly complex set of values. Once mental deterioration
progresses, the patient's universe of interests shrinks and new
interests may become dominant. Sometimes the two sets of interests can
come into conflict. Imagine, for example, a fully competent patient
who, in anticipation of developing Alzheimer's disease, espouses a
strong conviction, perhaps documented in an advance directive, that
she does not wish to have her life prolonged in a demented state. She
deeply identifies with her intellect, and thus views life with
dementia as terribly degrading. But once she develops dementia, her
identification with her intellect drops out as a concern, so she loses
the corresponding desire not to prolong her life. In the meantime, she
is still capable of simple enjoyments -- she likes gardening or
listening to music -- and perhaps can even carry on meaningful
human attachments. Her current, truncated set of interests does seem
to favor continued life. Such scenarios raise difficult questions of
how the interests of the earlier and current self ought to be balanced
in surrogate decision-making. Privileging advance directives and
recreating the judgment of the earlier self via substituted judgment
are no longer the obvious solutions, given this conflict.



Much of the philosophical literature on surrogate decision-making has
focused on conflicts of this kind. There are subtle differences,
though, in how this conflict is conceptualized -- more
specifically, in how the interests of the earlier self are viewed
-- sometimes stemming from differences in what is taken as a
paradigm example of the conflict. On one view, the relevant interests
of the earlier self are autonomy interests: what matters is that the
choices of the earlier self be heeded. With this emphasis, the
conflict is between the autonomy of the earlier self and the
well-being of the current self. On an alternative conception, the
interests of the earlier self are well-being interests: what matters
is that the earlier self fares well overall. The conflict, then, is
between the well-being of the earlier self and the well-being of the
current self. One may also consider both aspects of the conflict as
relevant. The arguments below apply to all three interpretations of
the conflict.


### 3.1 Threshold of authority approach




One way to rescue the idea that the former self and its interests
ought to have priority is to appeal to the special *authority*
of the former self over the current self. The grounds of this authority
are cashed out differently in different views, but the basic thought is
that the former self's superior capacities give her standing to govern
the current self. Once the current self falls below a certain threshold
of capacity, her interests in her current state are so marginal as to
no longer be authoritative for how she ought to be cared for, and the
interests of the earlier self trump.



Several lines of argument have been used to establish the authority of
the earlier self over the current self. One is to deny altogether the
independence of the current self's interests. On this interpretation,
the conflict described above is merely apparent. Once the current self
falls below the relevant threshold of capacity, she is incapable of
generating her own independent interests, and, despite superficial
appearances to the contrary, her fundamental interests are really
defined by the earlier self. The interests of the current self are
straightforwardly not authoritative since they are merely apparent
interests. Further, even were we to accept that the current self has
her own independent interests, there are other reasons to see those
interests as lacking authority. If one insists on the priority of
respect for autonomy over beneficence, or if one views the capacity
for autonomy as the essential core of a person, the interests of the
earlier self will be seen as having authority over the current self
because only the earlier self is capable of autonomy. Ronald Dworkin's
analysis combines all of these lines of argument (Dworkin 1993).



Different versions of the threshold approach propose somewhat
different thresholds for when the current interests of a formerly
competent individual cease to be authoritative. It is usually accepted
that the mere loss of decision-making capacity is insufficient
(Dworkin 1993, 222-29). Decision-making capacity is context-specific
and depends on the complexity of the pertinent information that the
decision-maker needs to process. A person may lose the ability to make
very complex medical decisions, while still being able to decide
perfectly well about simpler everyday matters. Lapses of this nature
would not give the surrogate a license to discount the current
well-being of the individual in favor of what mattered to him
earlier. By contrast, transformations that could leave authority with
the past self must involve a more global loss of capacity such that
one can no longer generate, in any context, interests of a special,
morally weighty type. In crossing this threshold, one ceases to be a
being of a certain morally privileged kind: for instance, one ceases
to be an autonomous individual, or one turns from a person into a
nonperson. If an autonomous individual loses his capacity for autonomy
altogether -- the thought then goes -- he may have some
local (possibly merely illusory) interests associated with the
non-autonomous self, but his affairs ought to be conducted in
accordance with his earlier wishes expressive of his autonomy. Or, in
the parallel version, if a person turns into a nonperson, he may have
some local (possibly illusory) interests as a nonperson, but his
affairs ought to be conducted so as to advance the interests of the
person he used to be.



Within this basic framework, several variants are possible, depending
on what one takes to be the essential characteristics of a person, or,
if one accepts the capacity for autonomy as the essence of personhood,
depending on what one takes to be the core aspects of autonomy.
Ronald Dworkin's influential work defends the capacity for autonomy as
the relevant threshold, with autonomy interpreted as "the
ability to act out of genuine preference or character or conviction or
a sense of self" (Dworkin 1993, 225). If an individual has lost
the capacity for autonomy so understood, this view dictates that her
current interests (illusory or not) have no authority over decisions
on her behalf, and surrogates ought to cater to her former interests,
from before the loss.




It is, however, important to notice that the capacity for autonomy, as
interpreted by Dworkin, comprises two distinct abilities: (1) the
ability to espouse a "genuine preference or character or
conviction or a sense of self" -- what may be called, for
short, the ability to value -- and (2) the ability to act out of
one's sense of conviction, that is, the ability to enact one's values
in the complex circumstances of the real world. In many brain
disorders these two abilities come apart. For example, a patient in
the middle stages of Alzheimer's disease may retain genuine values
-- she may hold on to family ties or to the conviction that
helping others is good -- and yet, due to a rapid
deterioration of short-term memory, she may be perpetually confused
and unable to figure out how to enact these values in the concrete
circumstances of her life. The set of values such a patient retains
would typically be a curtailment of the original set, introducing the
potential for conflict between the interests of the earlier and
current self. For example, earlier, the person may have valued
independence above all else, and so was adamantly against having her
life prolonged if she developed Alzheimer's disease. Now, in moderate
stages of Alzheimer's, she has lost her commitment to independence,
but still values emotional connections to family members, and thus has
a strong interest in continuing to live. On Dworkin's approach to
decisions on this individual's behalf, her current interests are not
allowed to override her earlier interests because she has lost her
standing as an autonomous agent: due to her confusion, she is unable
to act on her commitment to the family ties or on any other values
-- she is unable to run her life by her own lights, that is, to
govern herself. However, on an alternative view (Jaworska 1999), what
matters most for autonomy and personhood are the starting points of
autonomous decision-making: the genuine values that the person still
holds. So long as an individual is capable of valuing, she remains a
being of a morally privileged type, and interests stemming from her
values have the authority to dictate how the individual ought to be
treated. The person need not be able to enact her values on her own
-- it is part of the surrogate's role to assist with this
task. In short, on this alternative view, the capacity to value marks
the morally crucial threshold above which the current interests of a
formerly competent individual remain authoritative for the surrogate's
decisions and the conflicting interests of the earlier self can be set
aside.




The two views I have just discussed share the underlying idea of a
threshold of capacity beyond which an individual's current interests
lose authority. This idea has been challenged in several ways.


### 3.2 Challenge I: Appeal to the forward-looking perspective of decision-making




The most straightforward challenge emphasizes that decision-making
inherently involves a present- and future-oriented perspective: the
surrogate must make the best decision for the patient in front of him
about how to manage this patient's life from now on. The patient may
have had different interests in the past, but how can these be
relevant to current decisions, which can only affect the present and
future but not the past? This approach may accept it as unfortunate
that the patient's past interests were left unfulfilled, but insists
that this unfortunate fact cannot be remedied, and that there is no
use in catering to bygone interests in current decision-making
(Dresser 1986).




An advocate of the threshold view, such as Dworkin, would emphasize
two points in response:




First, past interests can often be satisfied in the present. Dworkin
distinguishes between what he calls "experiential" and
"critical" interests (Dworkin 1993, 201-08). Experiential
interests are, roughly, interests in having desirable felt
experiences, such as enjoyment (and in avoiding undesirable
experiences, such as boredom). These interests are indeed tied to the
present: there is no point in trying to satisfy one's past
experiential interest in a specific enjoyment (for instance, in
playing with dolls), if one at present has no hope of still deriving
enjoyment from what one used to enjoy in the past. By contrast,
critical interests are not tied to the experience of their
satisfaction; these are interests in having what one values or cares
about become a reality, such as a parent's interest in the success and
prosperity of his child or a sailor's interest in preserving his
beautiful wooden boat. According to Dworkin, such interests can be
meaningfully satisfied even if they belong in the past: for example,
even after the sailor dies, it makes sense to preserve the boat he
cared about and do so for his sake. Similarly, according to Dworkin,
it makes sense to satisfy a formerly competent person's critical
interests, such as the interest in avoiding the indignity of dementia,
for her sake, even if she has ceased to understand those critical
interests now.




Second, on a view like Dworkin's, the past critical interests of an
individual who formerly possessed the capacity for autonomy are, in a
crucial sense, still her interests in the present, even if she can no
longer take an interest in them. This is an essential element of the
claim that the patient's earlier autonomous self has authority over
her current non-autonomous self. The thought is this. For any person,
the interests she has autonomously defined for herself are her most
important interests. And this is so even for an individual who has
lost her capacity for autonomy or her personhood: so long as the
individual survives the loss as numerically the same entity, her
interests stemming from autonomy (or the subset of them that can still
be satisfied) remain her most important interests, even if she can't
espouse them now, and they are, in this sense, "past."
Thus, Dworkin offers a powerful rationale for why satisfying
"past" interests can still matter, and matter very deeply,
in the present.


### 3.3 Challenge II: Exercise of will as the point of autonomy




The versions of the threshold view that see the capacity for autonomy
as the relevant threshold can be challenged by approaches that cast
the requirements of the capacity for autonomy as being so minimal
that *any* individual capable of generating independent
interests in his deteriorated state counts as autonomous. On such
approaches, conflicts between earlier interests grounded in autonomy
and later interests no longer so grounded become impossible, and the
claim of authority of the earlier autonomous self over the current
non-autonomous self loses its bite: the threshold of autonomy is so
low as to cease to mark any contestable difference in authority. Seana
Shiffrin's response to Dworkin can be interpreted as a view of this
sort (Shiffrin 2004). Shiffrin sees a key point of autonomy in the
ability to exercise one's own will: the ability to control one's
experiences through the enactment of one's own choice. Shiffrin
emphasizes that so long as an individual has this ability, its
exercise calls for protection, and this is a crucial part of what we
protect when we respect autonomy. On this picture, so long as an
individual is able to make choices, have preferences, exhibit a will,
etc., there is a rationale for catering to his current interests, and
so his current interests have authority to override interests espoused
in the past.




The proponent of the threshold view may, in response, acknowledge
the importance of the ability to control one's experience through acts
of will, but still insist that a more robust capacity for autonomy --
for example, a capacity that involves expression of values and not just
mere preferences -- has moral importance of an altogether different
order. This difference can then support the position that, in cases of
conflicts between an earlier self capable of such robust autonomy and a
current self merely capable of exercises of will, the earlier self
retains authority and her interests ought to be heeded.


### 3.4 Challenge III: Loss of personal identity




According to the threshold views, the earlier self has authority to
determine the overall interests of the patient because the current
self has lost crucial abilities that would allow it to ground these
overall interests anew. This picture assumes that the earlier and
current self are stages in the life of one entity, so that, despite
the talk of local interests associated with each life-stage, there is
an underlying continuity of interests between the two. But this is a
very substantial assumption, and it has been contested by appeal to an
influencial account of the metaphysics of
 personal identity
 over time, the psychological continuity account. Roughly,
the idea is that, in the wake of a drastic transformation of one's
psychology such as Alzheimer's disease, one does not survive as
numerically the same individual, so whatever interests one's
predecessor in one's body may have had are not a suitable basis for
decisions on behalf of the new individual who has emerged after the
transformation (Dresser 1986). The lack of identity between the earlier
and current self undercuts the authority of the former over the
latter.




This approach works best in cases in which we can assume that the
new entity emerging after the psychological transformation is still a
person: the interests of the earlier self cannot dictate how the
current self ought to be treated because it would be a clear violation
of the rights of persons to allow one person to usurp the affairs of
another. (Some may doubt whether loss of numerical identity without
loss of personhood is even possible in any real-life cases of dementia
or brain damage, but the theoretical point still holds.) What, though,
if the psychological deterioration is indeed severe enough to strip the
resulting entity of the capacities of a person?




Some might see the loss of personhood as a particularly clear-cut
sign of a change in numerical identity: if the current self is not even
a person, surely the current self cannot be the same person as the
earlier self. However, as David DeGrazia has emphasized, this line of
reasoning rests on an undefended (and controversial) assumption that we
are essentially persons (DeGrazia 1999). For if we are not essentially
persons -- but, rather, for example, conscious minds of some other,
less complex kind -- an individual may very well lose the properties of
a person without any threat to his numerical survival.




Nonetheless, even if we are not essentially persons, on the
psychological view of our identity, we are essentially defined by our
psychological properties. If these properties change drastically
enough, the old individual ceases to exist and a new individual comes
into existence. And the transformation of a person into a nonperson
does seem to be a drastic psychological transformation. Thus, even if
DeGrazia is right that loss of numerical identity does not
automatically follow from loss of personhood, it is certainly
possible, and perhaps even likely, on the psychological view of our
identity, that a transformation of a person into a nonperson would
involve such a profound psychological alteration as to result in a
numerically new being. How should we adjudicate conflicts between the
earlier and the current individual in such cases?




On one view, if a person turns into a new individual in the later
stages of dementia, this by itself undercuts the authority of the
earlier person over her successor, regardless of whether the successor
is a person or not. After all, why should an altogether different
individual dictate how the current self is to be treated? However, more
nuanced positions can also be found in the literature. Buchanan and
Brock (1990) see the authority of the earlier self in cases of loss of
numerical identity as crucially dependent on whether the current self
is still a person. They accept that if the current self is a person, it
would be a violation of her rights as a person to allow another
individual to commandeer her affairs. However, if the current self is
no longer a person, he lacks the same rights. And, as Buchanan and
Brock see it, the earlier self has "something like a property
right... to determine what happens to [his] nonperson successor"
(166). That is, if one ceases to exist by turning into a nonperson, one
retains a quasi-property right to control the resulting nonperson,
presumably in much the same way that, when one ceases to exist by
turning into a corpse, one has a quasi-property right to control the
resulting corpse. Hence, on this approach, even if the earlier and
current self are distinct individuals, the earlier self has the
authority to determine what happens to the current self, so long as the
current self has been stripped of personhood. In this way, the idea of
a threshold of capacity beyond which the earlier self gains authority
to dictate the current self's affairs is resurrected, despite the
assumption that the earlier and current self are not the same
individual. But, this time, the basis of the authority is different: it
is not grounded in the continuity of overall interests between the two
selves, but rather in the earlier self's quasi-property right. Note,
though, that the claim that quasi-property rights could extend to
rights over successors who are nonetheless conscious beings is
controversial and requires further defense.


### 3.5 Challenge IV: Severance of prudential concern




It is possible to retain the intuitive idea that the weakness of
psychological connections between the two selves undermines the
authority of the earlier self over the current self without accepting
the metaphysical view that the earlier and current self are numerically
distinct entities. Suppose we maintain that even the most drastic
mental deterioration is not equivalent to death -- that the same
individual persists through the ravages of Alzheimer's disease. We can
still question the continuity of interest between the earlier and
current self by examining the concern the earlier and current self
would appropriately have for one another (McMahan 2002).




Ordinarily, each of us has a very unique type of concern for our own
past and future selves: it matters to you, in a very special way, what
happens to *you*, what experiences *you* undergo, how
*you* act, etc., now, in the future, and in the past. Call this
special species of concern *prudential concern*. We normally
assume that prudential concern strictly tracks personal identity: one
has prudential concern only for oneself and one is always concerned
with oneself in this way. By contrast, Jeff McMahan has argued that (at
least within the bounds of numerical identity) prudential concern also
ought to track the degree of psychological ties: prudential concern of
two selves at different stages of life for one another ought to weaken
in proportion to the weakness of the psychological connection between
them (McMahan 2002, 69-82). In the context of the severe psychological
transformations caused by a disease like Alzheimer's, this means that
the appropriate level of prudential concern of the earlier and current
self for one another would be rather slight. The two selves are not
bound by a sufficiently strong common prudential interest, and so the
person's earlier interests, no matter how important, do not transfer as
particularly important interests of her current psychologically
disconnected self. Any potential conflicts between the interests of the
two selves are now akin to conflicts between two entities with
altogether independent interests.




David DeGrazia has tried to counter this picture by suggesting that,
in addition to the factors discussed by McMahan, the earlier self's
appropriate degree of prudential concern for the current self can be
boosted by the earlier self's autonomously formed self-narrative: if
the earlier self identified with the current self, in the sense of
seeing the current self as a true stage in the unfolding complex
narrative of her life, strong prudential concern is warranted (DeGrazia
2005, 196). Oddly, this view makes the rational level of prudential
concern for the future partly a matter of choice of the earlier self.
Yet, unlike our ordinary concerns for specific plans, projects, other
people, etc., which are up to us, prudential concern is a requirement
of rationality and should not be a matter of choice. Just as we cannot
rationally have prudential concern for someone else simply because we
happen to incorporate (perhaps delusionally) their life into our
self-narrative, similarly, if we are not otherwise warranted to have
prudential concern for our own future self, we cannot change this
simply by virtue of how we happen to construct our self-narrative.




Return, then, to McMahan's picture. If the interests of the earlier
and current self are genuinely prudentially estranged and independent,
how should we resolve conflicts between them?




When the current self is still a person, her rights as a person call
for allowing her interests to control her treatment and against letting
the interests of the earlier self interfere; any weakness in the
current self's prudential connection to the earlier self merely
reinforces this stance. But how should we balance the interests of the
two prudentially estranged selves when the current self is not a
person?




McMahan himself suggests that, in a conflict between an earlier person
and a current nonperson, the interests of the earlier person ought to
trump (McMahan 2002, 502-03). He emphasizes that the earlier self is a
"higher self," "rational and autonomous," and
that her interests are associated with the dominant, more substantial
and lengthy part of life, integrated -- through strong prudential
connections among its various stages -- into one unified life-segment.
But part of McMahan's reasoning is also that the interests of the
current nonperson are, as types of interests, not very substantial.
Here McMahan relies on the specifics of the example of conflict he
happens to analyze (a version of the "preference to die"
example we saw earlier), together with a controversial claim that a
severely demented patient would not have a strong interest in
continuing to live.




While McMahan may be right that strong interests of an earlier
person trump comparatively trivial interests of a current nonperson,
his answer covers only a subset of possible conflicts between the
earlier and current self. It is much more difficult to arbitrate
between the two selves when the interests of the current nonperson are
also substantial. I have argued (Jaworska unpublished) that when the
interests of the earlier person are relatively minor, substantial
interests of the current nonperson ought to trump. Thus, for example,
if the earlier self had only a relatively weak preference to die --
let's say she simply didn't want to further complicate relationships
with family members for whom she happened not to care all that much --
the current self's substantial interest in continuing to live ought to
prevail. More controversially, I also argued that highly vital
interests of the current nonperson ought to trump even some
non-trivial, rather serious interests of the earlier person. Thus, in
the standard version of the "preference to die" scenario, what is
at stake for the earlier self is a rather serious interest in
maintaining the integrity of her life narrative. However, this interest
does not reach the level of high vitality, because there is only so
much damage that a period of senility at the end of a life can do to an
otherwise successful life-narrative. By contrast, the current self's
interest in her very survival is more highly vital. It is also, unlike
the earlier self's interest, an active interest -- an ongoing subject
of interests has reason to be strongly prudentially invested in it.
These factors combined lend, in this scenario, priority to the interest
of the current self.