12 Se­niors and Squalor perfect.49 Developing such a test for capacity is something of a “Holy Grail” pursuit it is thought by some to exist but, in fact, has yet to be discovered or developed.50 Notwithstanding that prob­lem, certain ­legal satisfactions must be met for a judicial finding of incompetence. Despite the ostensible rigor required, it is perhaps disturbing to note that such a finding is nevertheless a somewhat slip- perier slope than we might other­wise wish it to be. ­There are a ­great many reasons for this, ranging from instances of ageism on the judicial bench to differences in training and experience of ­ mental health professionals whose reports may be relied on as evidence. ­Whether someone makes irrational deci- sions should not be ice for that slope. Indeed, we should tread lightly before thinking about relegating—or wishing to relegate—an other­wise mentally competent person to the land of incompetence, simply ­because of lifestyle choices that we cannot understand, that may indicate the presence of unrea- son, or that may be viewed as altogether irrational. The consequences of ­ doing so, at the very least, include bringing the same fate much closer to the shoe collector and to all of the unreasonable, irrational decision makers who live within each of us. We might observe, however, that ­great stock continues to be placed in ­ whether someone is “rational” or not. At the very least, we might question the primacy of rationality.51 Ostensibly rational judgments seem to be mea­ sured against community norms, rather than a truly objective standard,52 per- haps particularly so when the person making decisions being scrutinized for rationality is a member of vulnerable group, such as the el­der­ly.53 In con- trast, the ideal rational person’s ability to—or right to—­make choices about her life is rarely or never called into question, even when ­ those choices seem to be clearly in error to disinterested observers.54 For example, a 40-­year-­old shoe collector would be far less likely to come ­ under this type of scrutiny than an 80-­year-­old shoe collector, the latter of whom might be feared to be squandering other­wise bequeathable assets55 or who might be an object of ageism, or an object upon which power may work to label and make subjects of ­ those who could be medicalized more easily than others.­ Should “Undesirables” Be “Dealt with” through Law? Should ­those whose habits or manner and modes of living that the com- munity finds undesirable be addressed through judicial or legislative exer- cise? We have a long history of addressing “undesirables” exactly in such a manner.56 As for our par­tic­u­lar subject focus, legally and socially, we may perceive that some actionable line must have been crossed by a competent person who lives in squalor, which has not been crossed by a competent person who does not. This regardless of any number of seemingly irrational choices made ­those who stand in judgment. Consider Granick and Zeman’s
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