Nancy J. Knauer (Temple University - Beasley School of Law) has posted Defining Capacity: The Competing Interests of Autonomy and Need (Temple Political & Civil Rights Law Review, Vol. 12, 2003) on SSRN. Here is the abstract:
This Essay addresses the question of capacity - the basic threshold determination that pervades all areas of the law. An individual must have the requisite level of capacity to consent to sex, refuse medical treatment, enter into a contract, marry, divorce, relinquish parental rights, execute a will, make a gift, donate organs, vote, serve on a jury, stand trial, and even to hire a lawyer. The standards regulating determinations of capacity are not monolithic. An individual may lack the capacity to contract, but may have the requisite capacity to write a will or to refuse life-sustaining medical treatment.
As individuals, we each have a strong personal interest in how the law separates those of us with capacity from those of us without. The determination of incapacity represents a crucial dividing line between legal subjects and those who are the object of legal protections. On one side are individuals who are not only empowered to act and to make legally binding decisions, but who will be held legally responsible for their actions and decisions. On the other side are those individuals who are deemed to have no agency, no decision-making authority and who are, therefore, held blameless, or at least not responsible, for their actions and decisions.
Part II reviews the differing standards of capacity. Part III examines two instances where recent legal reforms attempt to preserve individual autonomy: state guardianship laws and the 2002 amendments to Rule 1.14. These reforms reflect a distrust of the supposedly benevolent exercise of the state's parens patraie authority and seek to restrain state power.
Part IV presents the outsider critique of capacity doctrine with an emphasis on the way capacity standards evaluate non-normative life choices and silence marginalized identities and identifications. This section focuses on individuals in same-sex relationships or who identify as gay or lesbian. The Concludes suggests that that our tendency to venerate abstract principles of autonomy may lead us to overlook the reality of need and mistake the ideal of liberty as a synonym for human dignity. The law's uncritical endorsement of autonomy interests reinscribes a liberal fiction of autonomy that ignores the real-life experiences of a great many (if not all) individuals.