The Extension of Therapeutic Jurisprudence to Testamentary Competency and Substitute Decision-Making in the Australian Context

Abstract

Given the increasing dilemmas presented by the aging of the Australian population, the authors have undertaken the task of reassessing the approach to testamentary competency and substitute decision-making. Here they explore the question of whether therapeutic jurisprudence offers a useful theoretical framework for this task. Slobogin's critique of therapeutic jurisprudence provides the framework for a general discussion of the school of thought. The question of whether problems arise when using its insights in the Australian context is considered. The authors conclude that the principles of trust, participation and dignity promoted by therapeutic jurisprudence are highly desirable considerations in any re-examination of testamentary and substitute decision-making in Australia.