Swirling
As a growing portion of our population continues to age, we are more frequently forced to confront the question of capacity.
What is capacity and why should we care?
As we continue to enjoy unprecedented longevity, we face greater likelihood of incapacity in our future. Sometimes this incapacity is short-lived or temporary but for many of us, particularly for elders, it can become an issue that plays out over time and can result in a permanent incapacity. There are very few “bright lines” to define what is capacity and what constitutes incapacity generally, but there are many useful contextual and functional definitions of capacity to assist us in this effort.
I believe that the more we can learn about how these capacities and incapacities present themselves in the context of our daily lives, the better equipped we can become to help detect and prevent elder exploitation and abuse. This post is about three particular types of capacity along the capacity continuum. I use the term “continuum” because it is easy for many of us to think (or rather, wish to believe) that this capacity question is relatively straightforward. It is not! Like so many other aspects of human doing and human being, it can get quite complicated.
I’ll look at three familiar types of capacity here to put the question in context.
- Capacity to Make Medical Decisions
These medical Informed consent issues can include a range of capacities relating to what a patient is being asked to do – there is a range from the “mundane” question of whether the patient give informed consent to medical treatment or to decline such treatment; if the patient wishes to name a health care agent to make decisions for them in the event of their incapacity; and what about the capacity to make end-of-life wishes known with a living will? Here the functional elements of these capacities can be broken down into four basic parts:
(a) To express a choice: The standard of expressing a choice refers to patients who are seen to lack capacity because they cannot communicate a treatment choice, or vacillate to such an extent in their choice that it is seen to reflect a decisional impairment;
(b) To exhibit understanding: The standard of understanding refers to the ability to comprehend diagnostic and treatment related information and has been recognized in many states as fundamental to capacity.
(c) To appreciate the implications of a particular choice or course of treatment. This aspect capacity has been described as the ability to relate treatment information to one’s personal situation. The standard of appreciation can reflect the patient’s ability to anticipate or infer the possible benefits of treatment, as well as to accept or believe a diagnosis.
(d) To rationally process information. This reasoning aspect of capacity involves the ability to recognize and offer rational explanations or to process information in a logically or rationally consistent manner.
Each of these aspects of medical capacity are interwoven into the ongoing conversation of one’s medical treatment and are of course highly subjective in many ways due to the individual patient’s own preferences or style of communication.
- Capacity to Drive an Automobile
This one is big for us Americans who don’t have so many public transportation options! The ability to drive is often one of the last things to go because it can in some ways restrict an elder’s ability to go places on their own schedule. The AARP has an online defensive driving course and AAA has resources for getting evaluations of one’s driving skills as well as clinical assessments, but the “official” Colorado program is the Drive Smart program – click here for more information about it. Under Colorado law, doctors (and optometrists) can provide medical opinions to the DMV concerning a patient’s medical condition and the patient’s physical or mental ability to safely operate a vehicle. For more information about when an examination is required, here’s a link to a power point about it from the Colorado Coalition for Elder Rights and Abuse Prevention.
- Capacity to Make a Will
As an estate planning and elder law attorney, I meet with prospective clients and must make capacity determinations as a matter of course. The ABA has a handy guide for lawyers and psychologists concerning assessment of a person’s capacity. It is available here. In order for an attorney to represent a client, an attorney must first establish that the potential client has the capacity to hire the attorney as well as direct the activities of the attorney. We have a special rule of professional conduct which applies to clients with diminished capacity.
Historically, this testamentary capacity is at the lowest level along the capacity continuum. In Colorado, the law is a bit less clear since the Breeden case, but many states still recognize testamentary capacity as a separate and special category. The Colorado probate code allows for a protected person (a person under a conservatorship) to make a will through the conservator. See Colo. Rev. Stat. §15-14-411.
One of the aspects of this low level of capacity required to exercise our testamentary freedom is that a will can be subject to challenge under some circumstances. The person’s ability to make a will, or their testamentary capacity, can be the subject of a lawsuit known as a will contest. Challenges to testamentary capacity often revolve around “undue influence,” in which a person challenges the will (and sometimes nontestamentary transfers as in the recent Colorado Appeals Court decision in Estate of Owens v. Dominguez). Undue influence depends on many situational factors but generally can require a showing by the one challenging the will that: a person standing to benefit from the new will was in a confidential relationship with the testator (person making the will); that the person received a substantial benefit; from the testator who was suffering some mental, social or psychological impairment which compromised the testator’s mental capacity or independent thinking.
To conclude this post, if we think of capacity not just as a concept but as grounded in a particular context – as illustrated by the examination of capacity to perform a particular task, we can go much further in our examination of how much capacity is required and whether the requisite capacity is lacking. From this contextual basis, we can then take a look at what type of assistance to “facilitate capacity” is appropriate and what kind of “assistance” is actually interference indicative of improper influence, exploitation or abuse. I’ll write more on this topic this summer.
© Barbara E. Cashman 2017 www.DenverElderLaw.org