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date: 24 September 2020

Abstract and Keywords

This chapter examines the fiduciary principles governing surrogate decision-making. Surrogate decision-making relationships arise when one person is appointed to make decisions for another, and are often used to make decisions for individuals with acute medical conditions or cognitive disabilities that make it difficult or impossible for the individuals to make decisions for themselves. A surrogate decision maker may be authorized by the individual for whom decisions are to be made or by a third party, including a court or a federal agency providing benefits to the individual. This chapter first considers how fiduciary duties are triggered in surrogate decision-making relationships and describes the requirements for appointment and acceptance by type of surrogate: guardians and conservators, agents acting under a power of attorney for finances or health care, and representative payees and other government fiduciaries. The discussion then turns to the surrogate decision maker’s duty of loyalty and duty of care, along with other fiduciary obligations. The chapter concludes with an overview of remedies available for a breach of fiduciary duty by a surrogate.

Keywords: fiduciary duties, surrogate decision-making, guardians, conservators, power of attorney, health care proxy, representative payees, government fiduciaries, duty of loyalty, duty of care, breach of fiduciary duty

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