Capacity and Competency: What's the Difference?
To understand how dementia affects consent, it's vital to differentiate between medical "capacity" and legal "competency." The two terms are often used interchangeably but have distinct meanings and implications.
- Capacity: This is a medical and functional determination made by a physician or other healthcare provider, often related to a specific decision at a specific time. A person is considered to have capacity for a particular decision if they can understand the relevant information, appreciate the situation and its consequences, reason through the options, and communicate their choice. Capacity can be fluid and may vary depending on the time of day, medications, or other health factors.
- Competency: This is a legal determination made by a judge in a court of law. Competency is a more global assessment that can remove a person's overall legal right to make their own decisions. It is a legal threshold that is presumed in all adults until proven otherwise in court, often requiring a formal hearing and testimony.
The Role of Assessment in Determining Capacity
The cornerstone of determining consent is a thorough capacity assessment. Since dementia's effects progress differently for each individual, relying on a diagnosis alone is insufficient.
Key Steps in a Capacity Assessment:
- Educate the Person: Before any assessment, the individual must be given all relevant information about the decision in a clear, understandable manner, perhaps with visual aids or simplified language.
- Observe and Communicate: The assessor must observe the person's behavior and communication style. It is important to ask open-ended questions to determine if they can comprehend, reason, and weigh the implications of the choice.
- Look for Fluctuations: Due to the nature of dementia, capacity can fluctuate. A person may be more lucid and capable at certain times of the day. Multiple assessments over time may be necessary for important decisions.
- Document Everything: Thorough, meticulous records are crucial, especially if a decision may be legally challenged later.
Medical vs. Legal Consent
The type of consent required depends on the decision being made. Medical consent for a simple, low-risk procedure is handled differently than consent for complex financial or estate planning matters.
Medical Decisions
For medical procedures or treatment plans, a physician will assess the patient's capacity to understand the risks and benefits. In the early stages of dementia, many individuals can still make these decisions. As the disease progresses, a designated healthcare power of attorney (POA) or proxy decision-maker will be needed to act on their behalf.
Legal Documents
Signing legal documents, such as a will, trust, or power of attorney, requires a higher level of capacity, often called "testamentary capacity". This involves understanding the nature of the document, the extent of one's assets, and who will be affected. If a person's capacity is questioned for a legal matter, an elder law attorney or a judge may need to be involved.
Comparison of Consent Scenarios
| Scenario | Decision-Making Challenge | Typical Approach | Key Considerations |
|---|---|---|---|
| Simple Medical Procedure | Understanding a minor, immediate procedure (e.g., blood test). | The physician assesses capacity. If the patient can understand and communicate, their consent is valid. | The assessment is specific to this one decision. Fluctuations in capacity are important to note. |
| Managing Finances | Making complex decisions about investments, paying bills, or selling property. | Often handled by a Durable Power of Attorney for Finances. The document should be established while the person still has capacity. | Vulnerability to exploitation is a major risk. A court may need to appoint a conservator if no POA exists. |
| Signing a Will | Understanding and appreciating the distribution of assets after death. | Requires a formal assessment of testamentary capacity by legal and medical professionals at the time of signing. | The person must comprehend the nature and effect of the will. The document may be challenged in court later. |
| Research Participation | Understanding the research purpose, procedures, risks, and benefits. | Researchers must assess capacity and often seek proxy consent from a legal representative, even if the person with dementia assents. | Researchers must balance the need for research with protecting vulnerable individuals. Continuous engagement is vital. |
Ethical and Practical Considerations
The process of determining consent for a person with dementia is not just a legal or medical formality; it is an ethical imperative. It requires balancing the person's autonomy and right to self-determination with the duty to protect them from harm and exploitation.
Family members and caregivers play a crucial role, often acting as advocates and providing invaluable insight into the person's preferences and personality. Early legal planning, including establishing a healthcare directive and power of attorney, is vital. This allows the individual to express their wishes while they still have the capacity to do so, providing clear guidance for future decisions when their capacity diminishes.
Conclusion
While a dementia diagnosis complicates the process, a person can give consent as long as they retain the specific mental capacity to do so. A diagnosis alone is not enough to declare someone incapable. The key is a careful, individualized, and timely assessment by qualified professionals to determine if the person understands the decision at hand. In cases where capacity is compromised, pre-established legal documents like a power of attorney ensure that the person's best interests and previously stated wishes are honored. This approach safeguards the individual's dignity and autonomy, providing a clear path forward for families and healthcare providers navigating these challenging situations.
Legal and Financial Planning for Alzheimer's | The Alzheimer's Association
How Family Can Help with Consent
- Early Planning: Encourage the person with dementia to complete advance directives, such as a Power of Attorney and Living Will, while they still have clear capacity.
- Know Their Wishes: Have open and ongoing conversations to understand their values and preferences regarding medical treatments, financial matters, and lifestyle choices. This helps guide future decisions if they lose capacity.
- Maintain Records: Keep detailed notes and a file of all legal and medical documents, ensuring family members and healthcare providers have copies.
- Support Assessments: Participate in capacity assessments by providing context and information about the person's typical behavior and understanding.
- Protect from Exploitation: Be vigilant against potential financial or emotional exploitation, as people with dementia are particularly vulnerable.
- Encourage Independence: Even in later stages, promote as much independence as possible. Encourage them to participate in small, low-risk decisions to maintain their autonomy.
