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Introduction
A 92 year old female client requests legal assistance for drafting a durable power of attorney and a basic will. Realizing that she must be competent (or
"capacitated") for such documents to be valid and legally binding, the attorney engages the client in conversation to make an assessment. The client remembers the
attorney (whom she knew since the attorney was a youngster) as well as numerous events from that earlier time period (around which she centers much of the conversation). She
is dressed beautifully, and appears to be a very "young" 92 years of age. She answers all questions cordially and appropriately, and speaks and acts with social
flair and grace. Moreover, she has some degree of understanding about the legal proceedings, indicating that she wants you to appoint her oldest daughter, the one she
"always trusted the most" (as agent on the power of attorney). You are the attorney: is your client competent?
Challenges in determining client competence.
As memory, judgment, and other cognitive abilities decline, compensatory mechanisms develop and serve to "cover" for such deficits. These compensatory mechanisms may take many forms including excuses, rationalization, and even dishonesty. Remaining skills and abilities tend to be emphasized or overemphasized, so that deficits are not so readily observed. As one example, older adults tend to focus on the past as this is what they can most vividly recall (as short-term memory is impaired first). Simply stated, it is not always possible to accurately determine whether a person is capacitated (or incapacitated) during the course of normal conversations.
While it is necessary to know when true incapacity exists, it is equally important to avoid declaring a client incapacitated if they are capable of making sound decisions. The
right to make independent decisions for personal and financial affairs is valued very highly in our society; and obviously, those rights should be maintained and respected
whenever possible. Among the consequences of legal incapacity are severe personal and financial restrictions including having another person (fiduciary) decide what the
protected person will wear, where they will live, whether they can marry, and how to spend their money. So, declaring incapacity and appointing a guardian and/or conservator
must be the option of last resort, with every effort made to implement a less confining measure.
Utah Definition of "Incapacitated Person."
In considering a person's capacity for decision-making, it is often helpful to use the definitions of incapacity from the current and previous Utah Code.
The current definition reads: "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability,
chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent of lacking sufficient understanding or capacity to make or communicate responsible
decisions.
Previous Utah Code definitions for incapacity have had broader terminology to include: consideration of "his or her personal safety" and attendance to and provision
for "such necessities as food, shelter, clothing, and medical care, without which physical injury or illness may occur."
Dementia is a common cause of incapacity.
When working with older clients who are requesting that substantive changes be made to their estate or other legal/financial arrangements, it is always important to consider the possibility that dementia is impacting their decision-making ability. Dementia is a blanket term that refers to a syndrome characterized by neurological and cognitive decline (i.e., impaired thinking) affecting more than one area of brain functioning. Most older individuals do not suffer from dementia, but its prevalence increases with age and studies have found that as many as 48% of 85 year-olds exhibit measurable symptoms of dementia. There are many forms of dementia, but Alzheimer's Disease and vascular dementia account for the vast majority of all cases. The thread of connection between these various syndromes is that they are all associated with degradation of brain cells, albeit by different means and in different regions of the brain. Additionally, nearly all cases of dementia are progressive illnesses characterized by mild (early), moderate (middle), and severe (late) stages of decline. Although there are some differences in presentation, reduced memory (particularly for new information), reduced ability to plan, organize, and execute complex activities, impaired judgment, and impaired reasoning tend to be present to some degree in most forms of dementia. Impaired language and neuromuscular deficits are also common features.
Types of Dementia
Reversible or Treatable Dementia.
Among the important reasons to refer your elderly client for a capacity evaluation is the fact that some common forms of dementia are actually treatable or reversible. Some experts would argue that these cases are best described as delirium rather than true dementia, but many of the symptoms are similar. A delirium is characterized by rapid onset with altered level of consciousness, multiple impairments in thinking, behavior change, and (often) visual hallucinations (Rabins, Lyketsos, and Steele, 1999). Delirium may be superimposed on an underlying dementia syndrome and as a result the symptoms of confusion and behavioral disturbance can be particularly pronounced. States of delirium are usually treatable and are commonly caused by metabolic problems, infections (urinary tract and respiratory, for example), medication toxicity, and/or low blood oxygen levels, among other possibilities. Other treatable conditions that can cause dementia-like cognitive impairments include: certain endocrine problems such as hypo/hyperthyroidism, vitamin B deficiencies, major depression, and some cerebral tumors. It's important for capacity examiners to consider these possibilities and make arrangements for an evaluation by a physician when indicated.
Irreversible or Progressive Dementia. Demographic trends clearly demonstrate that people are living longer and the elderly are becoming an increasingly large proportion
of our society. Similarly, the number of people with irreversible or progressive dementia is increasing rapidly. Medical science and better nutrition have combined to increase
life span, but the goal of preventing neurological decline in late life remains elusive. Prior to age 65, the prevalence of dementia is very low (less than 1%) and most cases
can be attributed to traumatic brain injuries. After age 65, the occurrence of dementia increases significantly with each year of age.
Alzheimer's disease is the most common form of dementia and is associated with development of protein-based plaques and tangles between and within the neural cells of the
brain. The cause of these brain lesions is still not clear to researchers, but heredity does play a role. Symptoms of Alzheimer's include memory loss, confusion,
disorientation, and personality changes. Problems with short-term memory and abstract reasoning tend to be the first manifest symptoms. Your client with Alzheimer's may have
clear and accurate recollections of what happened 50 years ago, but will have trouble remembering breakfast or finding a new address.
Cerebrovascular disease is the cause of vascular dementia, which is second to Alzheimer's in terms of prevalence, but still very common among the frail elderly. Some recent
research indicates that vascular dementia is more common than previously realized and may be associated with high cholesterol during early and middle adulthood. Damage is
caused by reduced blood flow to the brain as a result of strokes, also known as cerebrovascular accidents or CVAs, Strokes can be both small and large, with commensurate
damage to the surrounding brain tissue. They are usually accompanied by a loss of consciousness and often create localized impairments in specific areas of functioning such as
speech or muscle control. Memory impairment (especially short-term initially) is also characteristic of vascular dementia, but can appear to fluctuate to a greater extent than
with Alzheimer's disease. In later stages, it can be difficult to distinguish vascular dementia from Alzheimer's disease.
There are numerous other forms of dementia associated with other etiological factors. Other neurological conditions may or may not be associated with cognitive decline. For
example, Parkinson's disease is primarily characterized by tremors and loss of muscle control, but 30% of Parkinson's patients also show signs of dementia. It is also possible
that dementia causing medical conditions can coexist simultaneously.
In your work with older clients, keep in mind that it may be difficult to make simple assessments of their cognitive capacity. For example, it is possible for a stroke victim
to have unintelligible speech while the capacity for abstract reasoning and good judgment remain intact. A qualified examiner will be able to assess overall capacity while
accounting for specific neurological deficits and will consider possible treatable causes of impairment.
Considerations in Finding a Qualified Examiner
The Utah Code is somewhat vague in stipulating who should be determining capacity. We suggest that the most important consideration is whether the examiner has specialized
training and experience in geriatric competency assessment in addition to an advanced clinical degree. Given that caveat, individuals from several different professions may
provide quality evaluations. Physicians, psychologists, advanced practice nurses, and clinical social workers with the requisite training and experience may all bring
particular strengths and perspectives associated with their respective professions. For example, a physician may be more likely to rely on medical information while a
psychologist may be more likely to incorporate standardized cognitive testing when formulating an evaluation report. It will be in your client's best interest for you to
evaluate the credentials and experience of an examiner before making a referral for capacity assessment.
The Assessment Process: How to Determine Capacity
The outcome of a capacity determination can be very grave, possibly resulting in forced surrender of personal and/or financial decision-making rights. Thus, it is imperative
that the assessment be accurate, complete, and performed and documented with care. Both objective and subjective assessment are components of a capacity evaluation.
Standardized tests and measures are used to increase objectivity. As human evaluators, some subjective evaluation is inherent (which can be an advantage as not all human
behavior can be objectively measured). Professional perspective of a person's capacity, though not necessarily the outcome, may vary depending upon the specific professional
discipline of the evaluator(s).
The definition of "incapacitated person," as stated in the Utah Code, should serve as a basis upon which evaluators base their conclusions and recommendations to the
court. A crucial determining factor in a capacity evaluation is whether the person's basic needs, such as food, shelter, nutrition, and safety, are met.
Rule out a reversible or treatable condition that mimics symptoms of dementia.
A common error in capacity evaluations is neglecting to rule out a reversible or treatable condition that mimics symptoms of dementia. As noted earlier, many ailments or healthcare problems can appear as a progressive or irreversible dementia, but instead, are treatable and reversible. Though healthcare professionals who are not physicians may be well-trained to conduct other portions of a capacity evaluation, the expertise of a medical doctor is needed to rule out a reversible dementia. A physical examination, laboratory work, and possibly, a CT scan and/or tests will likely be necessary.
(In)capacity is assessed on a continuum.
Many conditions, including the level of capacity, are best described on a continuum. For instance, levels of pain or anxiety are often rated on a scale of 1 to 10 (with 10 generally indicating the most pain or anxiety). In assessing concepts such as pain or anxiety, an evaluator is given much input from the person (or patient) as to exactly how much pain or anxiety is being experienced. But unlike assessing the level of pain or anxiety, the responsibility for determining capacity rests solely with the evaluator as the proposed protected person cannot be relied upon to accurately state their level of capacity.
(In)capacity must be determined holistically.
To increase the accuracy of a capacity evaluation, it is essential that the proposed protected person, along with their specific situation and living environment, be assessed "holistically" as opposed to consideration of only their mental or cognitive status. Assessing mental status is a necessity, but should never suffice as the entire evaluation. To illustrate, certain individuals may score very poorly on standardized mental status exams, yet function well, safely, and without putting themselves or others at risk (most decisions may be sound). Other individuals may score quite well on standardized tests, but subject themselves and others to risk on a daily basis (most decisions are likely poor).
Physical health, physical disability, functional ability (to do daily activities), nutrition, safety, sensory function, and emotional status must be determined in addition to
mental status as each contributes to the ability (or inability) of a person to make sound decisions. If sensory loss, for example, was not considered, a person might be
labeled as incapacitated due to unintelligible answers that were the result of deafness and the inability to hear what was being asked of them. Thus, failing to consider an
individual in a holistic fashion could lead to an appointment of a guardian and conservator when the more appropriate provision for protecting the person might have been less
restrictive.
Use multiple data sources.
The person being evaluated may be incapacitated; therefore, it is crucial to obtain data from other sources to help verify or refute information offered by the proposed protected person. Reliable sources who know the person well should be consulted. Sources may include family, friends, neighbors, healthcare and/or allied professionals, and the medical record (when appropriate).
Assess on more than one occasion.
The thought process of persons with dementia can vary a great deal within a short period of time. If at all possible, interviewing the person on more than one occasion is wise. This helps ensure that the person does not get overtired with questioning or tests. Moreover, it helps the evaluator collect more data and to determine if responses are consistent from one period of time to another.
Assess in person's own environment.
While a capacity assessment could be conducted in an office or clinical setting, assessing clients in their own environment is likely to offer more and better information. In addition, the evaluator may be able to determine whether or not the person could continue to live in their home (considering cleanliness, upkeep, and safety factors) if that is their desire.
Assess person without others present.
Any person, but especially a vulnerable older adult, might be needlessly biased in the presence of others (especially a family member who might be petitioning the court for guardianship). The proposed protected person should be strongly encouraged to be forthright in expressing their desires (to the evaluator) in order that those needs and desires can be appropriately communicated to the judge (such as trusting one person over another or wishing to remain in their home when they have the financial means to do so).
Utilize cognitive testing to increase objectivity.
It is often helpful in the assessment process to incorporate data from objective tests designed to measure particular areas of functioning. A few screening instruments are simple to use and score with a minimal amount of training. When indicated, more comprehensive and reliable information may be gathered with the use of standardized tests for which specialized training is required to assure appropriate administration and interpretation procedures are followed. Psychologists are more likely to utilize such standardized tests as a core part of their clinical training is focused on testing. Neuropsychology is a specialization within psychology that emphasizes skills in cognitive and neuropsychological testing, including evaluation of dementia. The skills of a neuropsychologist may be particularly helpful when the pattern of cognitive impairment is atypical.
As mentioned above, some screening instruments are simple to use and may be helpful for attorneys to incorporate in their own process of deciding whether to refer a client for
a capacity assessment. It cannot be emphasized strongly enough that one should seek appropriate training before using these tests. In order for the results to be reliable and
valid, these tests must be administered under the right conditions and the scores must be interpreted in context. Otherwise, the results might overestimate or underestimate
the individual's level of functioning. Unfortunately, it's beyond the scope of this article to provide such training. The Mini Mental Status Exam (MMSE), the Short Portable
Mental Status Questionnaire (SPMSQ), and the Clock Test are examples of screening tests that are simple to use and can be administered in 15 minutes or less. Although useful
as a brief screening device, none of these instruments provides enough information alone to constitute an adequate evaluation of capacity.
Summary and Recommendations
In summary, to be declared legally "incapacitated" is synonymous with abdication of all decision-making rights. If some level of capacity is retained, alternatives to
a plenary guardianship should be considered. Given its serious nature and potentially grave outcome, a capacity assessment must be performed and documented with care and
caution. A holistic assessment approach is recommended, with evaluation of cognitive, physical, psychological, functional, and emotional domains. A crucial point to consider
is the general well being of the proposed protected person and their capacity to meet their needs without risk to themselves or others. Only then can an accurate conclusion be
drawn about capacity for decision-making.
The use of standardized mental status exams by attorneys may be useful as an initial (and superficial) screening tool to assess client capacity. Attorneys have voiced concerns
about asking their clients mental status questions for fear that such questions might be "insulting." This fear can be minimized by assuring clients that the purpose
of such questioning is to protect them should their capacity (when documents were signed) be questioned or challenged at some future point. A critical issue is that these
brief screening tools represent only one component of (what should be) a multifaceted assessment. If client capacity is unclear or questionable, consulting with a qualified healthcare professional is recommended. Formal written reports detailing client assessments, submitted by healthcare experts to attorneys and District Court Judges, have proven helpful in supporting or refuting claims of (in)capacity.
References
APA Presidential Task Force on the Assessment of Age-Consistent Memory Decline and Dementia (1998). Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline.
Washington, D.C.: American Psychological Association.
Hill, R.D., Thorn, B.L., Bowling, J., & Morrison, A. (2001; in press). Geriatric Residential Care. New York: Lawrence Erlbaum Associates.
Rabins, P.V., Lyketsos, C.G., & Steele, C.D. (1999). Practical Dementia Care. New York: Oxford University Press.
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