In this second installment about capacity and incapacity, I’m looking at capacity in the health care context. To recap, the fundamental question of “how much capacity is enough” must be answered with a response beginning with “it depends . . . !” Some of the varying standards of capacity in elder and estate law can be demonstrated among these categories of capacity:
- To make a will (testamentary capacity) – including a will with a testamentary trust
- To designate a health care agent in a medical power of attorney (MDPOA)
- To execute a general (durable) power of attorney
- To execute an advance directive (living will)
- To execute a revocable (or irrevocable) inter vivos (living) trust
- To make a gift to another person
- To make a gift of real estate to another person (via a deed)
So you may be wondering how estate planning attorneys manage these different types of capacity determinations regarding their clients when they are engaged to prepare estate planning documents. . . . Attorneys are well-advised to be cognizant and careful of the different standards so they can effectively represent their clients. So, you will note that #2 and #4 above relate to the health care context, but there are also other relevant documents that may include the MOST (Medical Orders for Scope of Treatment) form and related medical orders such as a DNR (Do Not Resuscitate). Unlike the standards for capacity in the will, power of attorney, contract and trust-making contexts, capacity in health care is driven by statutory law – not case law or the common law tradition. You can read a bit more about the history of informed consent in one of my earlier posts.
The Colorado Medical Treatment Decision Act is found at Colo.Rev.Stat. 15-18-101 et seq. The statute allows any adult with “decisional capacity” to execute a declaration. “Decisional capacity” is defined in the statute at 15-18-103(6) as follows: the ability to provide informed consent to or refusal medical treatment or the ability to make an informed care benefit decision. Note that the statute speaks about medical treatment decisions and also health care benefit decisions. Yes, our Colorado statutes cover all the bases here. Colo.Rev.Stat. § 15-18.5-102 and 103 relate to the health care power of attorney for medical treatment, §15-18.5-104 and 105 (the statutory form for naming the surrogate) allows for appointment of a surrogate decision maker for health care benefits. Why are these documents so important to have in place? So that you can name a person in charge and know they will be able to perform an important job for you if you need their assistance. If you don’t name anyone, there is a vacuum, often a decision by “committee” of family members and perhaps the need for instituting guardianship proceedings in probate court.
The documents evidencing the decision-making authority of various named agents and surrogates in advance directives and MDPOAs are valid in every state of the U.S, and while each state has different laws concerning these important health care documents, they are generally viewed as “portable.” It is a good idea to keep these documents up to date and current with the laws of the state in which a person resides. I think it is important to update an advance directive every few years, especially as a person ages, because health care wishes are subject to change, based on one’s outlook and experience over time. If you aren’t sure where to start in this regard, go to The Conversation Project to begin. Every person over eighteen really ought to have a medical power of attorney! This is a simple but powerful document and it is best to have a conversation with your selected agent to make sure (1) they are willing to serve and (2) they know what you want. I haven’t yet met anyone who wants to be named as a health care agent – charged with life and death decision making authority with regard to the principal (the person naming the agent) – who wants to perform that job without knowing what the principal wants!
One last point for this overview, you might be wondering about those electronic medical records for a person who is incapacitated or has died and an agent or guardian or personal representative is charged with the authority over electronic records? Colorado law doesn’t specifically address “digital assets” yet, but the Uniform Law Commission’s UFADAA (Uniform Fiduciary Access to Digital Assets Act) is final as of July 2014 and ready for state adoption. There are grounds to have some privacy concerns in the medical and mental health context of digital assets. The best method to clarify your wishes about maintaining privacy or limiting access to these records is to execute the necessary documents to name your agent and state your specific wishes – particularly with regard to third party electronic medical records access (agent, guardian, personal representative, etc.). The best policy to specifically address these concerns in the relevant and applicable documents, and if you don’t yet have these documents, remember that the upcoming holiday season is an excellent time to have the conversation about end of life wishes.
©Barbara Cashman 2014 www.DenverElderLaw.org