As your parents or other loved ones age, sometimes they develop medical conditions such as Alzheimer’s or other symptoms of aging that might bring into question their ability to make decisions for themselves. Because this capacity for decision-making involves important medical and financial decisions, determining capacity is a legal matter. If someone is determined to be incapacitated, they might be deemed in need of guardianship.
What is Capacity?
The term “capacity” is used to refer to a dichotomous (yes or no) judgment by a clinician or other professional as to whether an individual can perform a specific task (such as driving or living independently) or make a specific decision (such as consenting to health care or changing a will), according to the Oxford Academic.
How is Capacity Determined?
How to know when your loved one has capacity or not? It must always be assumed that everyone is able to make a decision for themselves until it is proven that they cannot. The law says that the only way to establish this is to do a test or assessment to find out whether a person has the ability to make a particular decision at a particular time.
It’s important to note that the mere existence of physical or mental illness does not mean that a patient lacks capacity. Rather, capacity is usually task-specific. Capacity is determined by whether an individual has specific abilities, regardless of a diagnosis. Specific capacities include the ability to give informed consent, manage finances, make a will, or enter into contracts, according to MD Edge Psychiatry. There are four components generally used for determining capacity:
- Communication of a choice
- Factual understanding of the issues
- Appreciation of the situation and its consequences
- Rational manipulation of information.
Using these components, MD Edge Psychiatry notes three specific capacities often discussed when dealing with financial and medical matters:
- Capacity to give informed consent.
The individual must:
- Understand the risks and benefits of treatment
- Understand treatment alternatives
- Understand the risk of refusing treatment
- Testamentary capacity
The individual must:
- Understand that he/she is making a will
- Know the nature and extent of their property
- Understand the “natural objects” of their bounty and their claims upon them
- Contractual capacity
The individual must:
- Understand the transaction
- Act in a reasonable manner
What If Your Loved One Does Not Have Capacity?
When an individual is determined to not have capacity, it’s normal for a guardian to be appointed to take charge of medical and financial decisions.
What is Guardianship?
Adults are presumed to be legally competent unless they are declared by a court to be incompetent (incapacitated) or incapable of caring for themselves.
A guardianship is a formal legal action for substitute decision making. A guardianship action is an involuntary proceeding and may be established over the opposition of the incapacitated person. Since there is no federal law governing guardianship, state law applies to guardianship actions. The substance of these laws, including the legal standards for determining incapacity, varies considerably among states, according to AgingWell.
How to Appoint Guardianship?
In the event that a judicial determination of incapacity is made, the court may appoint a “guardian of the person” to make personal choices such as living arrangements and health decisions, a “guardian of the property” to manage the incapacitated elder’s estate and finances, or a “plenary guardian” with power over both the person and the estate. The court may also order a limited guardianship.
Courts are increasingly recognizing the concept of limited guardianship, in which the subject of the guardianship action is found to be an incapacitated individual and a guardian is appointed. But the guardian’s powers are limited to those areas in which the incapacitated person does not retain decision-making capacity.
The use of limited guardianship is generally more prevalent in cases involving the developmentally disabled, as opposed to older adult clients suffering from dementia or Alzheimer’s disease.
What if You Suspect Abuse?
In some cases, elders might be falsely deemed incapacitated when they are not. If you suspect this, contact an elder law attorney to review your loved one’s case and help explain your loved one’s rights.
How Can We Help?
Do you need help proving that your loved one is incapacitated and needs guardianship in order to best manage their medical and financial affairs? Or maybe you need just the opposite – help proving that your loved one does have capacity for these decisions? Maybe you suspect errors or unlawful behavior in a situation involving your loved one’s decision making? Whatever your elder law need is, we can help! Serving Treasure Coast seniors and those who love them. Contact our Fort Pierce office at 772-828-2588 or message us online.