Understanding the difference between capacity and competency
Before delving into the assessment process, it's crucial to distinguish between legal competency and medical decision-making capacity. While often used interchangeably, they refer to different things and are determined by different authorities.
Medical decision-making capacity
Medical capacity is a functional assessment performed by a clinician, such as a doctor or a neuropsychologist. It is specific to a particular decision at a given point in time and is not a global judgment of a person’s mental state. An individual with dementia, for example, may have the capacity to decide on minor daily care matters but not to manage complex finances. A person with medical capacity should be able to:
- Understand the relevant information about their condition and proposed treatments.
- Appreciate how the information and their decision apply to their own situation.
- Reason through the options and potential consequences.
- Communicate a clear and consistent choice.
Capacity can fluctuate. A person might have impaired capacity due to a treatable condition like a urinary tract infection or depression, or it can be temporarily compromised due to medication side effects. For this reason, repeat assessments are often necessary, and clinicians must consider the potential for reversible causes.
Legal competency
Legal competency, on the other hand, is a global legal standard determined by a judge in a court of law. A person is presumed competent until proven otherwise. A legal declaration of incompetence is a serious matter, as it can result in the loss of certain rights, such as the ability to manage finances or make legal decisions. If a court declares a person incompetent, it may appoint a guardian or conservator to make decisions on their behalf.
Comparison: Capacity vs. Competency
| Feature | Medical Capacity | Legal Competency |
|---|---|---|
| Determining Authority | Clinician (e.g., doctor, psychologist) | Judge/Court |
| Scope | Specific to a particular decision at a specific time (e.g., consenting to a procedure) | Global and applies to all areas where the person has been deemed incompetent |
| Nature | Can fluctuate and may be temporary | Enduring and permanent unless a court reviews the decision |
| Focus | Functional ability to make an informed decision | Legal right to retain decision-making power |
The process for assessing competency in older adults
Determining competency is rarely a simple, one-step process. It requires a comprehensive, multidisciplinary approach that takes into account an individual's medical history, mental state, and functional abilities in their daily life. The process often unfolds through several key steps.
1. Identify and document signs of cognitive decline
Family members and caregivers are often the first to notice changes that may warrant an assessment. These can include:
- Repeated questions or stories: Frequent repetition of information, even after receiving an answer.
- Poor judgment: Making uncharacteristic decisions, such as giving large sums of money to strangers.
- Disorientation: Getting lost in familiar places or having trouble keeping track of dates and times.
- Neglect of self-care or household tasks: Forgetting to pay bills, neglecting personal hygiene, or letting mail pile up.
- Difficulty with complex tasks: Being overwhelmed by financial management, medication schedules, or travel planning.
Accurate, objective documentation of these changes over time is essential. A log of specific dates and examples of concerning behavior can provide crucial evidence for a medical professional or the court.
2. Clinical evaluation by a medical professional
The next step is a comprehensive medical and mental health evaluation. This is not about getting a quick diagnosis but gathering a complete picture of the individual's health. The process typically involves:
- Physical examination: To rule out reversible causes of cognitive impairment, such as infections (e.g., urinary tract infection), nutritional deficiencies, or medication side effects.
- Cognitive screening: Quick, in-office tests like the Mini-Mental State Exam (MMSE) or the Montreal Cognitive Assessment (MoCA) can provide a baseline measure of cognitive function. These are screening tools, not definitive diagnoses.
- Neuropsychological testing: For more complex cases, a neuropsychologist may conduct a more in-depth evaluation of memory, reasoning, attention, and executive function.
- Psychiatric evaluation: To assess for mental health conditions like depression, anxiety, or psychosis, which can affect decision-making capacity.
3. Functional assessment of daily living activities
Beyond what a person can do in a doctor's office, it's vital to evaluate their real-world functioning. An occupational therapist, social worker, or geriatric care manager may conduct an assessment of Instrumental Activities of Daily Living (IADLs), which include:
- Managing finances.
- Handling medications.
- Preparing meals.
- Shopping.
- Using the telephone.
- Maintaining the household.
This assessment often involves observing the person in their home environment to gauge how they manage their daily life independently and safely. The individual's perception of their own abilities and their willingness to accept help are also important considerations.
4. Legal proceedings and court determination
If a medical assessment determines a person lacks capacity and a less restrictive option like a durable power of attorney is not in place, legal proceedings may be necessary to declare them legally incompetent. This process is initiated by filing a petition with a probate court.
- Petition filing: A concerned family member or other interested party can file a petition outlining the reasons for the competency concern.
- Court hearing: The court will hold a hearing where evidence is presented. This includes the medical evaluations, testimony from healthcare professionals, and statements from family members and others who have observed the individual.
- Appointment of a guardian/conservator: If the court finds the person incompetent, it will appoint a guardian to oversee their personal affairs or a conservator for financial matters. The court's goal is to be as minimally restrictive as possible, so the appointment may be limited to specific areas where the person is unable to make safe decisions.
Ethical considerations and patient rights
Throughout the process, the patient's rights and autonomy must be respected. The determination of incompetence is a last resort, used only when all less restrictive options have been exhausted. Key ethical considerations include:
- Presumption of competence: All adults are presumed competent until proven otherwise.
- Least restrictive alternative: Decisions should favor the least restrictive intervention that ensures the person's safety and well-being. This might mean providing support services or relying on a Power of Attorney rather than appointing a guardian.
- Patient involvement: The person should be included in discussions and assessments as much as their capacity allows. Their values and preferences should be considered, even if they have diminished capacity.
For more information on legal aspects of senior care, consider consulting an elder law attorney. An excellent resource for general elder law information can be found at the National Academy of Elder Law Attorneys (NAELA).
Conclusion: Navigating a sensitive and complex issue
Determining competency in an older adult is a multifaceted process that integrates medical, functional, and legal evaluations. It requires careful observation, professional assessment, and, in some cases, court involvement to protect a person's well-being when their decision-making capacity is compromised. Understanding the distinct roles of medical capacity and legal competency is essential for all parties involved. By following a structured and sensitive approach, families can ensure that their loved ones' rights are protected while providing the necessary support to maintain their safety and quality of life.
