Goodman v. Berger

I initially address the majority’s conclusion that the doctrine of substituted judgment is not applicable to this appeal. I respectfully disagree with the majority’s conclusion.

The origin of the doctrine of substituted judgment has been traced back to a 19th century English case, Ex parte Whitbred, in the Matter of Hinde, 2 Merivale 99, 35 Eng. Rep. 878 (1816). In Whitbred, it was recognized that the chancellor could, under proper circumstances, grant to needy relatives part of an incompetent’s surplus income. Such payments were to be determined according to what the incompetent would…