Court Making Substituted Judgment for Incompetent Must Make Decision Person Would Make If Competent

An order allowing the parents, as guardians at litem, of a pregnant psychotic woman to terminate the pregnancy was reversed and remanded for evaluation of whether the woman would want an abortion if she was not mentally ill. The court held that when a judge makes a decision under the doctrine of substituted judgment for an incompetent person, the standard is not whether the decision is a wise one, but whether the incompetent person would make the same decision if he or she were competent. If the evidence shows that the incompetent would likely make a foolish decision were he or she competent, the judge must nevertheless respect that decision.


In this case, the incompetent woman stated she would not have an abortion, but evidence showed that she was delusional on many levels, including denying the pregnancy, and that she had previously had an abortion.


The trial court’s sua sponte order that the woman be sterilized during the abortion in order to avoid the same situation in the future was also reversed and remanded for the trial court to hold an evidentiary hearing to determine whether the woman would have an abortion if she were competent. See: In re Guardianship of Moe, 81 Mass.App.Ct. 136, 2012 WL 104915 (Mass.App.Ct. Jan 17, 2012) (not designated for publication).