In short, we need to understand how capacity issues present in older adults across the spectrum of neuropsychiatric and developmental syndromes. Another key area requiring attention is testamentary capacity and the related issues of undue influence and exploitation of older adults with diminished capacity. People in the United States are living longer than they ever have, and as baby boomers age, the elderly population has grown older and more populous than ever before. This somewhat fuzzy line between the family, the clinical role, and judicial role in managing diminished capacities in older adults can create considerable confusion but is important to recognize (Ganzini, Volicer, Nelson, & Derse, 2003). Two clinical areas that have received the most research attention are treatment consent capacity and financial capacity. American Bar Association Commission on Law and Aging and American Psychological Association., in press Judicial determination of capacity of older adults in guardianship proceedings. We review research efforts in two domains: medical decision-making capacity and financial capacity. Perhaps they will allow you to monitor their financial accounts. Decisions about capacity are ultimately legal judgments enforced by the power of the state. Welfare guardians and power of attorney may exist for some patients with diminished capacity to consent, but the documentation of appointment to those roles should be read by the dentist to verify the extent of the appointment. For example, a critical area concerns the assessment of capacity to live independently, which is the basis for judgments of guardianship in probate court. 2. While recent case law shown how courts are willing to deal with dementia and other mental illnesses that might affect older people, there are still glaring gaps and no definitive answer of how to define mental capacity to consent. If protecting the elderly who might be vulnerable was truly the concern of the unconstitutional probate tribunals, every effort would be made by those hearing examiners or administrative clerks, both who attempt to claim the title of “judge” (as in a court of law”), to preserve and protect the legal standing and legal capacity of the targeted victim. Help us improve your experience by providing feedback on this page. He will also be ordered by the court to be confined to a mental hospital. Attention to capacity issues is also increasing as a result of large-scale financial and cultural changes. Agreement between physicians is near chance for patients with dementia (Marson, McInturff, et al., 1997), with physicians basing their capacity judgments on different cognitive skills of patients (Earnst, et al., 2000) but it improves with training on legal standards (Marson, Earnst, Jamil, Bartolucci, & Harrell, 2000). GWINNETT COUNTY, Ga. (CBS46) Police are searching for a missing elderly man diagnosed with diminished mental capacity and other medical conditions. The most obvious recipients are close family members and friends, though charities and other organizatio… In fact, how can a lawyer determine whether she still has the decision-making abilities to make such changes? These signs may arise subtly and over time. These narrow capacities, although technically legal capacities, are rarely subject to judicial review. For full access to this pdf, sign in to an existing account, or purchase an annual subscription. Agreement between instrument-based assessments of capacity and physician-based assessments is poor in some studies (Bean, Nishisato, Rector, & Glancy, 1996; Fitten et al., 1990) and good in others (Carney et al., 2001; Etchells et al., 1999). The introduction of standardized instruments has been central to the emergence of empirical capacity research. An elderly person with diminished mental capacity is at greater risk of exploitation. Promoting to lawyers, judges and psychologists the choice of capacity measurement instruments as well as the use of different assessment approaches to address specific capacity issues. Capacity assessment of older adults will become increasingly important over the coming century. What should we do when an older adult, particularly one who is frail, vulnerable, dementing, or eccentric, begins to make decisions that put the elder or others in danger, or that are inconsistent with the person's long-held values? Should the lawyer allow her to alter such legal documents? Planning Strategies to Protect Your Elderly Loved Ones from Incapacity In the first part of this series, I discussed the early warning signs of diminished financial capacity in the elderly. This capacity comprises a domain so vast it can include almost all areas of functioning, and it may manifest itself in poorly understood behaviors such as “self-neglect” and with extreme unsanitary living conditions (Moye, 2003). Other capacities, such as treatment consent, testamentary capacity (wills), research consent, sexual consent, and voting, are generally narrower in scope, focusing on one or a small number of specific decisions requiring an underlying set of cognitive abilities. Two other areas that are almost without study are sexual consent capacity and voting capacity. 2- Ibid. The past 10 years has witnessed the emergence of capacity assessment in aging as a field of study, with a growing body of empirical studies, a promising first generation of capacity assessment instruments, and a small but growing cadre of scientific researchers. Two of these require a broad set of cognitive and procedural skills—independent living and general financial management. ), and to memory, comprehension, attention, and executive functions in PD (Dymek et al.). Such questions await study. In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired.. (, Moye, J., Gurrera, R. J., Karel, M. J., Edelstein, B., O'Connell, C. (, Moye, J., Karel, M. J., Azar, A. R., Gurrera, R. J. The sexual consent issue arises with two older adults living in an institution who are intimate and at least one of whom has questionable capacity to consent to a sexual relationship (Lichtenberg & Strzepek, 1990). COVID-19 resources for psychologists, health-care workers and the public. In this way, it differs in many respects from medical decision-making capacity, which is primarily a verbally mediated capacity (Dymek et al., 1999). Thus, capacity assessment training should become a part of the clinical training of physicians, psychologists, and other health care professionals working with the elderly population (Karlawish & Schmitt, 2000; Marson, Sawrie, et al., 2000). Also, she added, the tools address myths and errors about capacity, improve quality and identify key steps in the assessment process. APA and the American Bar Association have teamed up to educate legal and mental health professionals on determining diminished mental capacity in older clients. In this article we consider civil capacity assessment of older adults as a growing field of clinical practice and empirical research. Washington, DC: American Bar Association. A conceptual model of consent capacity based on U.S. case law outlines four core abilities. The population of that age will double by the year 2050. A fourth area of empirical study involves identifying cognitive and other behavioral markers of diminished capacity. Although a clinician's opinion is currently the accepted clinical standard for capacity determination—there is no “gold” standard—clinical judgments of capacity can often be inaccurate, unreliable, and even invalid. The studies reviewed here represent researchers' initial efforts at empirically understanding financial capacity in dementia populations. Understanding is associated with conceptualization and confrontation naming in AD (Marson et al., 1996) and executive functions, memory, and comprehension in adults with Parkinson's dementia (PD; Dymek, Atchison, Harrell, & Marson, 2001). As a result, probate courts are seeing a marked rise in contested guardianships and wills, and there is a high prevalence of elder abuse and exploitation by strangers, friends, and family members (National Center on Elder Abuse, 2005). Recent collaborations between the American Bar Association and the American Psychological Association represent an attempt to integrate these diverse disciplines into practical applications (American Bar Association Commission on Law and Aging and American Psychological Association, 2005, 2006). It is concerning that so few studies report the racial and ethnic makeup of the individuals in their samples, and to date there is no exploration of how and whether racial and cultural factors and other important values intersect with the assessment of consent capacity, despite the fact that medical decision making, in itself, varies by these factors (Caralis, Davis, Wright, & Marcial, 1993; Eleazer et al., 1996; Karel, 2000). Over the past 10 years, the topic of treatment consent capacity in elderly persons has been receiving increasing research attention (Kim et al., 2002), yet the overall number of studies is still small. Accordingly, studies are needed of the relationship between legal and clinical models of capacity, and of the relationship between clinical assessments and juridical actions (e.g., what kind of capacity assessments lead to optimal judicial orders). In a factor analytic study, neuropsychological factors robustly predicted understanding, but they had modest to low prediction for reasoning, appreciation, and expressing a choice. There are at least eight major capacity domains of relevance to older adults with neuropsychiatric illness, as presented in Table 1. These are some of the essential, and perplexing, questions of clinical capacity assessment. For more information on assessing capacity, see our assessing capacity webpage. A diminished mental capacity plea is different from the similar “not guilty by reason of insanity” plea. Emphasizing the effects of education, social class, gender, race and ethnicity on interpretation of test results. The field of capacity assessment is dominated by a fundamental tension between two core ethical principles: autonomy (self-determination) and protection (beneficence; Berg, Appelbaum, Lidz, & Parker, 2001). Loss of capacity over time is attributable to declining reasoning, and it was predicted by earlier problems with naming, verbal memory, and mental flexibility (Moye, Karel, Gurrera, & Azar, 2006). The collaboration will benefit clients with diminished capacity by balancing important values of autonomy and dignity of older adults with the least intrusive response to protect them from harm or exploitation, said forensic psychologist and attorney Robert T. Kinscherff, PhD, JD, of the Massachusetts Trial Court in Boston and chair of the APA Ad Hoc Committee on Legal Issues. Rates of impairment varied, depending on the instrument used. Here, we’ll discuss planning strategies that can protect your loved ones from incapacity of all kinds. A third area for study is clinician decision making. A number of studies have examined consent capacity in patients with psychiatric illness (Grisso & Appelbaum, 1995; Saks et al., 2002; Wong, Cheung, & Chen, 2005; Wong et al., 2000), but these studies have not focused on older populations. Treatment consent capacity is a fundamental aspect of personal autonomy and refers to a patient's cognitive and emotional capacity to select among treatment alternatives or to refuse treatment (Berg et al., 2001; Grisso, 1986; Tepper & Elwork, 1984). Agreement is highest for understanding and lowest for appreciation. A verbal retrieval factor strongly predicted understanding, whereas both verbal retrieval and problem-solving factors were predictive of reasoning and appreciation (Gurrera, Moye, Karel, Azar, & Armesto, 2006). 1. In the remainder of this article we summarize and analyze research in the two important clinical capacity domains that have received the most research attention to date: treatment consent capacity and financial capacity. It generally relates to some form of coercion of a vulnerable adult to do something that will benefit the coercer. The effects of multiple interacting medical conditions on decision-making abilities vary across individuals, affecting some aspects of decision making and not others, calling for sophisticated and functionally oriented capacity assessment. Within the law, there is a growing movement away from full (plenary) guardianship orders to limited orders that provide surrogate controls only in needed areas. Understanding is often strongly associated with verbal retrieval, which perhaps raises the question of whether prevailing methods of assessing understanding rely too heavily on verbal recall and miss the opportunity to provide cues and supports to maximize comprehension and minimize memory demands (Dunn & Jeste, 2001). The collaboration will benefit clients with diminished capacity by balancing important values of autonomy and dignity of older adults with the least intrusive response to protect them from harm or exploitation, said forensic psychologist and attorney Robert T. Kinscherff, PhD, JD, of the Massachusetts Trial Court in Boston and chair of the APA Ad Hoc Committee on Legal Issues. E-mail: Search for other works by this author on: Journal of the American Geriatric Society, Journal of the American Geriatrics Society, Alzheimer Disease and Associated Disorders, Copyright 2007 by The Gerontological Society of America, Cross-national differences in the association between retirement and memory decline, Aging Narratives over 210 years (1810-2019), The Differential Impact of Retirement on Informal Caregiving, Volunteering, and Grandparenting: Results of a Three-Year Panel Study, Feeling Gratitude is Associated with Better Well-being across the Life Span: A Daily Diary Study during the COVID-19 Outbreak, Changes in self-estimated step-over ability among older adults: A 3-year follow-up study, The Journals of Gerontology, Series B (1995-present), About The Journals of Gerontology, Series B, About The Gerontological Society of America, American Bar Association Commission on Law and Aging and American Psychological Association, 2005, Marson, Chatterjee, Ingram, & Harrell, 1996, Moye, Gurrera, Karel, Edelstein, & O'Connell, 2006, Marson, McInturff, Hawkins, Bartolucci, & Harrell, 1997, National Conference of Commissioners on Uniform State Laws, 1993, Pruchno, Smyer, Rose, Hartman-Stein, & Laribee-Henderson, 1995, Carney, Neugroschl, Morrison, Marin, & Siu, 2001, Kim, Caine, Currier, Leibovici, & Ryan, 2001, Schmand, Gouwenberg, Smit, & Jonker, 1999, Wong, Clare, Holland, Watson, & Gunn, 2000, Marson, Annis, McInturff, Bartolucci, & Harrell, 1999, Marson, Earnst, Jamil, Bartolucci, & Harrell, 2000, Dymek, Atchison, Harrell, & Marson, 2001), Gurrera, Moye, Karel, Azar, & Armesto, 2006, Van Wielingen, Tuokko, Carmer, Mateer, & Hultsch, 2004, http://www.law.upenn.edu/bll/ulc/fnact99/1990s/uhcda93.pdf, Journal of Gerontology: Psychological Sciences, Receive exclusive offers and updates from Oxford Academic, Research Assistant Professor of Epidemiology, Board Certified or Board Eligible AP/CP Full-Time or Part-Time Pathologist, Broad; involves cognitive and procedural skills, Yes; when another party petitions for guardianship, or if elder abuse discovered, Yes; when another party petitions for conservatorship, or if elder exploitation discovered, Rarely; only in contested situations with conflict between family or health care professionals, Rarely; only in contested situations (often postmortem), Very rarely; only if brought for litigation, Extremely rarely; in most states voting rights remain even under plenary guardianship, Rarely; only if arises in context of guardianship, although registries of motor vehicles may suspend license without judicial review, Copyright © 2020 The Gerontological Society of America. Diminished capacity occurs as a result of damage to the brain. Assessing mental capacity in older adults. Someone who pleads a “by reason of insanity” defense, if successful, will receive a “not guilty” verdict. Standardized capacity assessment instruments aim to improve upon the notorious low reliability of more general clinical examinations (Markson, Kern, Annas, & Glantz, 1994; Marson, McInturff, Hawkins, Bartolucci, & Harrell, 1997; Rutman & Silberfeld, 1992) by focusing clinical assessment on the most relevant functional skills. For in-depth reviews of research in these areas, readers may refer to other sources (Grisso, 2003; Kim et al., 2002; Marson, 2001; Moye, Gurrera, et al., 2006; Moye, Karel, & Armesto, 2007). "We want to get lawyers to learn how to approach capacity on a preliminary level and how to work better with mental health professionals in making those determinations that are relevant to the [legal] transaction that needs to take place," said Charles Sabatino, JD, assistant director of ABA's Commission on Law and Aging. In this article we discuss the emergence of capacity assessment as a distinct field of study. Is Edward disoriented and forgetful, or making common mistakes? Of more concern is that those studies focusing on reliability between capacity assessment methods tend to find limited agreement between evaluations by multiple clinicians, multiple measures, or between a clinician and a measure, especially for the standards of appreciation and reasoning. Huthwaite, J., Martin, R., Griffith, H. R., Anderson, B., Harrell, L., Marson, D., in press Declining medical decision-making capacity in mild Alzheimer's disease: A two-year longitudinal study. Patients with moderate AD demonstrated loss of both simple and complex financial abilities, as well as severe impairment across all financial activities. A bad depression could also affect capacity for some time. The fourth is reasoning, which is the ability to rationally evaluate and compare treatment alternatives (Appelbaum & Grisso, 1988; Drane, 1985; Roth et al., 1977; Tepper & Elwork, 1984). Notes: The table includes studies of treatment consent capacity that focus on older populations and excludes studies of advance directive capacity and research consent capacity. In our review of 16 studies (some with multiple publications), patient sample sizes ranged from 20 to 100 individuals (M = 41.44, SD = 22.54), as presented in Table 2. In the United States, consent capacity is the cornerstone of the medical-legal doctrine of informed consent, which requires that a valid consent to treatment be informed, voluntary, and competent (Kapp, 1992; Marson, Ingram, et al., 1995). These studies also find that patients with dementia are impaired on consent abilities, and that as the dementia progresses, so too do the consent impairments. Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists is the third work product of the ABA/APA Assessment of Capacity in Older Adults Project Working Group, established in 2003 under the auspices of the interdisciplinary Task Force on Facilitating APA/ABA Relations. These studies await replication, but they provide a departure point for expanded explorations of other capacity constructs. In the same study groups, appreciation is related to verbal fluency, visual attention, and conceptualization in AD (Marson et al. (, Stanley, B., Stanley, M., Guido, J., Garvin, L. (, Taub, H. A., Baker, M. T., Kline, G. E., Sturr, J. F. (, Tymchuk, A. J., Ouslander, J. G., Fitten, J. The law requires that a person making or revising a will or trust must have “testamentary capacity.” That means that the maker must generally be able to: 1. dThe study also included a middle-aged comparison sample of adults with mental illness and learning disability. Declining abilities from a prior higher baseline of financial activity: to manage money and financial assets to meet needs, self-interest, values Causes of DFC: Cognitive decline is major cause Mental illness, behavioral and emotional problems Medical illness, sensory losses, physical frailty Dittmann, M. (2004, October). Among these instruments are those produced by the MacArthur Group to assess capacity to consent to treatment (Grisso & Appelbaum, 1998b) and research (Appelbaum & Grisso, 2001), by Marson and colleagues to assess capacity to consent to treatment (Marson, Ingram, Cody, & Harrell, 1995) and financial decision making (Marson et al., 2000), as well as instruments to assess the capacity to live independently (guardianship; Anderer, 1997; Loeb, 1996). Financial capacity is a complex, multifaceted construct. He was referred for assessment of his capacity to make this decision, as despite his severe language problems his son noted that other decision-making skills had been maintained. Agreement between different capacity measures is good for understanding, fair for reasoning and expressing a choice, and poor for appreciation (Moye, Karel, Azar, & Gurrera, 2004b). We use the term capacity to refer to a dichotomous (yes or no) judgment by a clinician or other professional as to whether an individual can perform a specific task (such as driving or living independently) or make a specific decision (such as consenting to health care or changing a will). Capacity assessments are ultimately human judgments occurring in a social context. Our population is aging at an extraordinary pace, and the prevalence of cognitive aging, dementia, and medical and neurological comorbidities increases dramatically with age. For example, a caregiver to an adult with dementia may simply assume responsibility for bill paying and investments, or strategically disallow driving. Scope and Practice of Judicial Review of Various Civil Capacities in Older Clinical Populations. These studies should also explore how clinicians from different disciplinary backgrounds may vary in their capacity assessment approach and outcomes. We then review existing research in the two important clinical domains of medical decision-making capacity and financial capacity, and we outline an agenda for future research. (, Griffith, H., Belue, K., Sicola, A., Krzywanski, S., Zamrini, E., Harrell, L., Marson D.C. (, Gurrera, R. J., Moye, J., Karel, M. J., Azar, A. R., Armesto, J. C. (. NI = not indicated; CCTI = Capacity to Consent to Treatment Instrument; HCAI = Hopemont Capacity Assessment Interview; MacCAT-T = MacArthur Competency Assessment Tool for Treatment; CAT = Capacity Assessment Tool; UTD = Understanding Treatment Disclosures; ACE = Aid to Capacity Evaluation; TRAT = Thinking Rationally About Treatment. The second is procedural knowledge, which is the ability to carry out motor based, overlearned practical financial skills and routines such as making change and writing checks. 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