Legal Capacity Assessments in the Elderly

Here is a presentation I am giving to geriatric psychiatry residents at UH Medical School this Friday. The presentation focuses on the basic procedures and concepts in conducting legal capacity assessments in the elderly.

Legal Capacity Assessments in the Elderly

Marvin W. Acklin, PhD, ABPP

Department of Psychiatry


Honolulu, Hawaii

February 25, 2010

 It is not uncommon for health care providers to encounter situations where the legal capacities of their patients or members of their patients’ families are questioned.

 In these cases the patient’s decision-making capacity must be ascertained.

 These are “civil” capacities.

 Rooted in informed consent doctrine.

 Situations include guardianship, conservatorship, and assessment of several capacities: testamentary, donative, contractual, and consent for medical procedures.

 Others include capacity to execute a durable power of attorney, execute a deed, capacity to execute an advanced healthcare directive, consent to sexual relations, capacity to mediate, or drive.

 Assessments of capacity for independent living, management of financial affairs, and legal decision-making are common problems.

 These situations require practical and effectives methods for determining and communicating results of capacity assessments. It requires a basic understanding of concepts and local legal statutes.

 There are a range of situations where capacity assessments are relevant, for example, in cases of traumatic brain injury or mental deficiency. Example: settlement in injury: airplane propeller

 Our topic today addresses diminished capacity assessments in the elderly.

 I often see a letter that says: I am Dr. So and So and I have been Mr. So and So’s physician for x years and it is my opinion that he/she has decision-making capacity.

 These assessments are typically complex since they often involve conflict, competing interests, and a balance of autonomy and individual rights in relation to safety and welfare considerations.

 The issue of undue influence is pertinent. Example: nonfamily member care giver

 Oftentimes these issues arise in the context of a legal dispute, involving lawyers, an arena that is intimidating to health care professionals.

 Elements of Incapacity tests: disabling condition as threshold, functional impairment, cognitive functioning, least restrictive alternative.

 Current versus retrospective capacity assessments. Example: the deceased nursing home patient who willed her house to her church

 Conceptual Framework for Capacity Assessments

  • Relevant legal standards
  • Functional elements
  • Diagnosis
  • Cognitive Assessment
  • Psychiatric factors
  • Values
  • Risk Considerations
  • Mitigating Factors/Capacity Enhancement
  • Clinical Judgment of Capacity/Forensic Opinion

 Procedural Framework of Capacity Assessment

  • Need for a Protocol
  • Managing the referral (who are the parties?)
  • Methods (interviews, observations, record review)
  • Tools
  • Reporting, limitations, and standard of proof

 The Setting of the Evaluation

  • Home visit/natural environment
  • Hospital/care facility
  • Office visit
  • Referral


  • Interview
  • Assessment of ADLS/Functional Capacities
  • Mini-Mental State Exam
  • Short Portable Mental State Exam
  • ABAS
  • Neuropsych measures: strengths and limitations
  • Collateral Information/Measures

 Domains of Assessment

  • Medical and psychiatric conditions
  • Sensory-motor impairments
  • Attention
  • Short-term memory
  • Receptive and Expressive Language Skills
  • Executive functioning: Judgment and reasoning
  • Capacity Opinion

 Components of Everyday Functioning Relevant for Adult Guardianship

Domain Description

 1. Care of self

  • Maintain adequate hygiene, bathing, dressing, toileting, and dental activities
  • Prepare meals and eat for adequate nutrition
  • Identify abuse or neglect and protect self from harm

 2. Financial Protect and spend small amounts of cash

  • Manage and use checks
  • Give gifts and donations
  • Make or modify will
  • Buy or sell real property
  • Deposit, withdraw, dispose, and invest
  • monetary assets
  • Establish and use credit
  • Pay, settle, prosecute, or contest any claim
  • Enter into a contract, commitment, or lease arrangement
  • Continue or participate in the operation of a business
  • Employ persons to advise or assist self
  • Resist exploitation, coercion, undue influence

 3. Medical Give or withhold medical consent

  • Admit self to health facility
  • Choose and direct caregivers
  • Make or change an advance directive
  • Manage medications
  • Contact help if ill or in medical emergency

 4. Home and community life

  • Choose or establish abode
  • Maintain reasonably safe and clean shelter
  • Be left alone without danger
  • Drive or use public transportation
  • Make and communicate choices about roommates
  • Initiate and follow a schedule of daily and
  • leisure activities
  • Travel
  • Establish and maintain personal relationships with friends, relatives, coworkers
  • Determine degree of participation in religious activities
  • Use telephone
  • Use mail
  • Avoid environmental dangers and obtain
  • emergency help

 5. Civil or legal

  • Retain legal counsel
  • Vote
  • Make decisions about legal documents

 Getting snookered: who brings the patient, awareness of legal proceedings

 Ideal referral conditions: appointment by court vs. typical referral conditions

 “overkill vs. underkill”

 The “stand up in court” criterion: avoiding the casual assessment

 Undue Influence–

 Influence or coercion by someone who intentionally uses his or her role and power to deceive and exploit the trust, dependency, and fear of another, gaining decision-making control of another. An individual who is stronger or more powerful gets a weaker individual to do something that the weaker person would not have done otherwise. The stronger person uses various techniques or manipulations over time to gain power and compliance.


      • Susceptibility
      • Confidential Relationship
      • Active Procurement
      • Monetary Loss


      • Isolation
      • Dependency
      • Exploitation
      • Acquiescence
      • Loss

 The office assessment vs. the forensic assessment

  • Interview (general)
  • Interview (specific)
  • Instruments (Mini-Mental State & Short Portable Mental State Exam)



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