Promoting the Rights of Older Persons: Addressing Adult Guardianship and Substituted Decision-Making in Health Care


  • Carole Petersen


Population aging has captured the attention of the international human rights movement and raised new questions regarding the legal framework for promoting and protecting human rights. Laws that promote “guardianship” of older citizens and other systems of substituted decision-making are particularly controversial. While many governments insist that these laws are necessary to protect older citizens, the disability rights movement and the UN Committee on the Rights of Persons with Disabilities has offered a strong critique of adult guardianship, viewing it as an inherent violation of an individual’s right to legal capacity. Interestingly, this debate regarding substituted decision-making has arisen while the international community is considering whether to draft a new multilateral human rights treaty dedicated to the rights of older citizens. If the UN ultimately decides to undertake this project, then the drafters of the new treaty will need to confront, directly, the ethics of adult guardianship and consider whether it can be retained (albeit with increased safeguards to prevent abuse) or must be rejected as an inherent violation of human rights.

Author Biography

Carole Petersen

Professor, William S. Richardson School of Law, and Director of the Spark M. Matsunaga Institute for Peace and Conflict Resolution, University of Hawaiʼi at Mānoa.