The Basics of Capacity Assessment
From a lawyers standpoint there are generally seven (7) types of capacity and while they are not necessarily ranked, the higher the level of complexity and risk involved in the task the higher the level of capacity required. For instance, testamentary capacity is regarded as requiring a higher level of mental capacity then what is required to appoint a power of attorney. Testamentary capacity requires that the individual know the objects of his/her affection, nature of their bounty, the document being executed, and the interrelationship of these three issues.
During the consultation, begin with the assumption of capacity and focus on decisional abilities, not on cooperativeness or affability. Likewise capacity and intelligence are not synonymous and determining capacity is not as simple as administering a mini-metal status exam. Elder Law attorneys and their staff work with clients that often are aged, sometimes eccentric, and even occasionally demented and become quite skilled at assessing a persons ability to participate in legal planning. Learning to assess capacity is a task of paramount importance and a skill called upon daily. Professional staff will have a conceptual framework to reference. Such as the ABA-APA Handbook for Lawyers: Assessment of Older Adults with Diminished Capacity.
There are degrees of capacity and diminished capacity but neither are necessarily diagnosis driven. Meaning everyone with dementia is not incompetent nor do they even lack decisional capacity for all things all the time. Because the disease is progressive there may be years that the affected person retains capacity to manage their own legal and financial affairs and actively participate in their advanced planning. Even after the time when most day to day matters have been turned over to the trusted agent there are still moments of clarity or “lucid intervals” that allow them to continue to have input in their care decisions.
Certainly the importance of advanced planning can not be stressed enough and naming an alternate decision maker (power of attorney/health care agent) early gives a client with dementia the best opportunity to participate in their advanced care plan.