Summary: The Right to Risk

Harold Whitfield is seventy-eight and wants to live alone in the farmhouse where he raised his children. He has fallen twice in the past year. Both times he recovered fully. His daughter Sarah petitions for guardianship. A judge she has never met, in a hearing lasting twenty minutes, grants her control over Harold’s finances, healthcare, and place of residence. Harold is competent. He is furious. He is legally powerless.

Autonomy means the right to make one’s own decisions, including bad ones. In aging, its loss is among the most feared aspects of growing old. The tension is real: what happens when capacity is uncertain or limited to certain domains? The person with early dementia who insists on driving. The patient who refuses treatment. At what point does protection become necessary, and who decides?

Approximately 1.3 million American adults are currently under guardianship or conservatorship, controlling roughly $50 billion in assets. A person under plenary guardianship cannot decide where to live, what medical treatment to accept, or how to spend their money. The problems are well documented: guardianship imposed when less restrictive alternatives would suffice, due process protections weak in many jurisdictions, guardians who exploit the people they protect, and termination extremely difficult even when capacity was never truly absent.

Supported decision-making is the emerging alternative. Rather than substituting someone else’s judgment, it creates a network of support enabling the person to make their own decisions while retaining legal authority. Texas was the first state to recognize it in statute in 2015; approximately fifteen states now have laws or formal recognition. The model shifts the question from “Is this person capable enough?” to “What support would enable this person to decide?”

The concept of the dignity of risk comes from the disability rights movement: a meaningful life includes the possibility of failure. Harold knows he might fall and not reach a phone. He has weighed that risk against what he values, and he has chosen the farmhouse. He prefers the chance of dying there to the certainty of leaving. Everyone has opinions about what Harold should do. Only Harold has to live with the consequences.

Harold now sits in an assisted living facility that is clean and safe, looking out a window that does not show the land he worked for fifty years. He was protected. He does not feel protected. He feels gone.