Capacity is not some dusty old legal concept! In this post I revisit some implications encroaching incapacity or. . . the “dark side” of our longevity.
The issue of capacity basically concerns judgement – the ability to reflect on and consider decisions required for daily living. When one lacks that capacity (or is deprived of it) the validity of some actions taken or decisions made – which have legal implications – can be called into question. This capacity discussion is likely to become more commonplace as more baby boomers move into retirement years and greater longevity…
Here’s a definition of capacity referring to Black’s Law Dictionary:
Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties, according to the mere dictates of his own will, as manifested in juristic acts, without any restraint or hindrance arising from his status or legal condition. Ability; qualification; legal power or right. Applied in this sense to the attribute of persons (natural or artificial) growing out of their status or juristic condition, which enables them to perform civil acts; as capacity to hold lands, capacity to devise, etc.
Capacity includes the ability to behave rationally and exercise one’s own judgment (for better or worse). Certain matters which typically adversely impact one’s otherwise presumably intact capacity include: mental disorder, developmental disability, intoxication, injury affecting one’s cognitive abilities, or the course of a disease process.
Reference to judgement capacity (or the ability to process information) is a legal notion often coupled with or inclusive of a functional (objective) capacity assessment. This is because so many of our human “doings” can require distinguishing (as our law does) between when we can manage and when we can’t. The term “capacity” by nature refers to an ability. I won’t go into any discussion about the nuances and historical underpinnings in the law relating to capacity as distinguished from competence. If you want to read further on that topic, check out this entry from the Stanford Encyclopedia of Philosophy on decision-making capacity.
So – how do we move from being presumed to have capacity to being legally incapacitated?
Where an adult has diminished or diminishing capacity, the law makes reference here to the “least restrictive means,” a concept borrowed from disability law. For Colorado adults who are determined by a court to be incapacitated, there is a finding by the court that “the ward is an incapacitated person and the ward’s needs cannot be met by less restrictive means, including the use of appropriate and reasonably available technological assistance.” See JDF 848, Order Appointing Guardian for Adult.
Because my practice focuses on elder law and probate, most of the petitioners whom I represent file petitions for guardianship (or conservatorship) concerning elders who have “slipped” in their capacities to manage for themselves, meaning the individual no longer has sufficient capacity to manage their affairs or make important decisions on their own. Many of these elders are at risk of financial exploitation as a result. I have also represented petitioners who are often parents of developmentally disabled young adults. The distinctions among them, as for elders, are varied and numerous. Suffice it to say that sometimes, for younger adults, it may be easier to establish grounds for a limited – as distinguished from the much more commonplace unlimited guardianship. In the former there can be specific references to supports to help facilitate an adult’s capacity(ies). Unfortunately, limited guardianships remain rare birds for a number of different reasons.
Capacity in Daily Living
To bring this discussion back to the practical level, I not that one’s capacity to “live independently” or perform the activities of daily living (ADLs) are often part of the incapacity picture as well, but this is generally due to a concern for an elder’s self-neglect. With regard to an elder who is named as a respondent in a petition for guardianship, the elder’s physical capacity or incapacity is generally irrelevant in determining incapacity unless it substantially affects his or her ability to make or communicate important decisions regarding his or her person, family, property, or results in self-neglect. Physical impairments alone are often of limited import in the guardianship context, as evidenced by reference in Colorado law assistive devices and technologies and the preference for least restrictive means, but in making the determination of incapacity, reference is made (as stated above in JDF 848) to those assistive technologies.
Another context for elders and capacity which is receiving more attention is the issue of consent for sexual relations. I would imagine that the free-loving baby boomers will test their adult children’s tolerance and demand that more attention be paid to this aspect of living in a communal or institutionalized setting. Read a recent study about the generation gap in attitudes and practices of extramarital sex here. A couple years back I wrote a blogpost on this topic and also about a husband in Iowa who was prosecuted for allegedly sexually abusing his demented wife.
Suffice it to say that this debate is ongoing, particularly as more institutions look to provide more person-centered care for residents who still enjoy physical intimacy. Some of these folks have dementia or other cognitive impairments which can affect their ability to consent. Do not underestimate the “eeewww” factor of many of these folks’ adult children who would rather not be informed of mom’s recently contracted STD or consider that an elder parent is sexually active!
We must remember, even when an adult is determined to be incapacitated for purposes of imposing a guardianship, what can still remain intact is that person’s capacity to express a preference as to the person who will serve as guardian. In In re Estate of Runyon, 343 p.3d 1072, 1077 (Colo.App.Div.4 2014), the court held that
a finding that the respondent is an “incapacitated person” within the terms of the statute does not necessarily mean that the respondent lacks sufficient capacity to express a preference as to a guardian or conservator. Neither the definition of incapacitated person nor the criteria for appointment of a conservator automatically exclude the ability to make a rational choice as to the selection of a guardian or conservator. Therefore, an incapacitated person may “still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court. (Citations omitted)
That’s all for now and thanks for reading!
© Barbara E. Cashman 2017 www.DenverElderLaw.org