Capacity vs. Competence: A Crucial Distinction
When discussing the ability of a person with a cognitive impairment to make decisions, it is important to distinguish between legal capacity and competence. While often used interchangeably, in a legal context they mean very different things:
- Capacity: This is a medical or functional term that refers to an individual's ability to make a specific decision at a specific time. A healthcare provider or other qualified professional assesses capacity. It is not an all-or-nothing concept; a person may have the capacity to make some decisions (e.g., choosing what to eat for dinner) but not others (e.g., selling a home).
- Competence: This is a legal term that refers to a person's overall ability to make their own decisions. A person is presumed to be competent until a court, typically through a legal proceeding, determines otherwise. The court's ruling applies globally and revokes the individual's right to make many types of decisions.
This distinction is why a dementia diagnosis alone does not remove legal rights. It takes a legal finding of incompetence, based on clinical evidence, to remove an individual's right to make decisions.
The Legal Capacity Assessment Process
Assessing legal capacity for someone with dementia is not a simple, one-step process. It requires a comprehensive evaluation and is always task-specific. Here's a breakdown of how it works:
Key components of a capacity evaluation
When assessing capacity, professionals, such as psychiatrists or neurologists, evaluate four key areas:
- Understanding: Can the person comprehend the relevant information about the decision they need to make?
- Appreciation: Can they relate that information to their own situation and understand the potential consequences?
- Reasoning: Are they able to weigh the risks and benefits of the decision and compare different options?
- Expressing a choice: Can they clearly communicate their decision?
The importance of timing
Legal capacity is not static. For a person with dementia, it can fluctuate day to day, or even hour to hour. Factors like medication, stress, and time of day can affect their cognitive clarity. A professional assessment will often take this into account and may require multiple interviews over a period of time to get an accurate picture of the person's decision-making abilities.
The Critical Role of Early Legal Planning
Proactive legal planning is the most important step a person with dementia and their family can take. By creating documents while the individual still has capacity, they can retain control over their future decisions and avoid the costly and emotionally taxing process of court intervention.
Here are essential documents for early planning:
- Durable Power of Attorney (DPOA): This document allows a person (the principal) to appoint an agent to make financial and/or healthcare decisions on their behalf. A "durable" POA remains in effect even if the principal becomes incapacitated, making it crucial for a dementia diagnosis.
- Advance Healthcare Directive (or Living Will): This legal document outlines a person's wishes regarding end-of-life medical treatment, such as life support or palliative care. It takes the burden of these difficult decisions off family members.
- Revocable Living Trust: A trust is a legal arrangement where assets are held by a trustee for the benefit of beneficiaries. It can be used to manage assets if a person becomes incapacitated and can help avoid the probate process.
Comparison of Legal Planning Options
| Feature | Durable Power of Attorney (DPOA) | Advance Healthcare Directive | Guardianship/Conservatorship |
|---|---|---|---|
| Decision-Maker | An agent appointed by the individual | A proxy or the document itself | A guardian/conservator appointed by a court |
| Control | Individual chooses agent while competent | Individual states wishes while competent | Court chooses and oversees decision-maker |
| Scope | Broad authority over finances or healthcare | Specific medical decisions at end-of-life | Broad authority over finances and/or personal care |
| Initiation | Individual initiates with attorney | Individual initiates with attorney | Court process, often initiated by family |
| Timing | Ideally done as early as possible | Ideally done as early as possible | Only when capacity is already lost |
The Last Resort: Guardianship and Conservatorship
If no legal planning has been completed and the person with dementia loses capacity, a family member or other concerned party may need to petition the court for guardianship or conservatorship. This process is considered a last resort for several reasons:
- It is more expensive and time-consuming than proactive planning.
- The individual with dementia loses control, as the court decides who will manage their affairs.
- It can cause emotional distress and family conflict.
A court appoints a guardian to oversee personal decisions, such as living arrangements and medical care, and a conservator to manage financial affairs.
The Family and Caregiver's Role
Families and caregivers play a vital role in supporting a person with dementia, but they do not have legal authority to make decisions unless formally appointed through a DPOA or a court-ordered guardianship. It's crucial for families to start conversations and create legal documents early to ensure the person's wishes are respected.
For more detailed guidance on navigating these issues, authoritative resources like the Alzheimer's Association are invaluable. Their guide on planning ahead for legal and financial matters can provide structured assistance: Planning Ahead for Legal Matters | Alzheimer's Association.
Conclusion
A dementia diagnosis does not automatically remove a person's legal capacity. This right is only removed by a court finding of incompetence, based on medical evidence of lost capacity. Because capacity is a task-specific and fluctuating state, early and proactive legal planning is essential. Establishing durable powers of attorney and advance directives while the individual can still participate in the process ensures their wishes are honored and avoids the costly, complex, and invasive process of court-mandated guardianship later on. For any family facing this challenge, seeking professional legal and medical guidance is a crucial first step.
