A Time to Step In: Legal Mechanisms for Protecting Those with Declining Capacity

Abstract

Current estimates approximate that the population over sixty-five years of age will increase from 40 million in 2010 to 72.1 million by 2030. As society ages, the number of elderly with cognitive deficits that impair decision-making abilities will also increase. This will place additional burdens on families and probate courts seeking to balance individual autonomy with necessary protections. A legal determination of incompetency is a prerequisite to a judicial order appointing a guardianship or other protective mechanism. The current legal-medical model for competency determinations fails to reflect the complexities of declining capacity in an aging population. A global structure for competency determinations leaves a critical gap between competent and incompetent. The gap between competence and incompetence not only raises concerns about how to classify those that fall between the two, but also highlights the lack of legal protections for those within the gap. A revised model is needed to provide protections to individuals who do not yet meet the threshold for incompetence but require additional protections for their personal or financial welfare. This Article provides an unprecedented examination of the legal model for determining competence through a comparison of the medical model for evaluating capacity. While a number of legal scholars have examined the appointment and oversight of guardians, fewer articles have critically examined the process by which individuals are declared incompetent. This Article presents a comprehensive overview of competency and clinical capacity determination procedures, legal mechanisms available to protect individuals with declining capacity, and policy recommendations for improving legal protections in light of inefficiencies related to legal competency determinations.

Informed consent in dental care and research for the older adult population

“…13–15,17,21,22,24–26,28,29,31,32,34–36,38–41,43–45,48–63,66,69,70,74,76–80,82–84,86–90,92 The studies reviewed were from a variety of international settings: United States (n = 33); United Kingdom (n = 7); France (n = 5); the Netherlands (n = 5); Spain (n = 3); and Canada, Sweden, Finland, Germany, Switzerland, Turkey, Hong Kong, Scotland, Norway, Italy, South Africa, Israel, Korea, Austria, and Nigeria. Investigators in 29 studies discussed consent in patients with only medical conditions, 29 in patients with cognitive impairments only, and 19 in patients with both medical and cognitive issues or frail or vulnerable elderly (eTable 1, available online at the end of this article).…”

“…Investigators in 43 articles discussed patient autonomy; 3 were in dental settings. 70,78,81 Arias 15 and Basta 16 stated that patients’ decisions always should be respected, and Davies and colleagues 24 stated that patients should be made aware that they may withdraw from the research or treatment at any time, without any legal binding or penalty. Clayman and colleagues 22 discussed autonomy-enhancing and autonomy-detracting behaviors of patient companions.…”

“…Contrary to articles we found in the dental literature, articles involving patients with medical conditions generally addressed capacity assessment by comparing the different assessment tools available. 13,15,32,38,87 The authors in most of these articles favored the MMSE and MacCAT over others. Investigators discussed concepts related to declining capacity and advance directives more thoroughly in the medical literature 20,23,39,42,61,67 than in the dental literature.…”

Shared decision-making in dementia: A review of patient and family carer involvement

“…In the context of dementia, examinations of the decision-making process, as opposed to its outcomes, have often been limited in scope to one of two issues: determining the loss of decision-making capacity (e.g. Arias, 2013;Gurrera, Karel, Azar, & Moye, 2007;Moye, Karel, Gurrera, & Azar, 2006), or establishing the family carer's responsibilities as a surrogate decision-maker (e.g. Jox et al, 2012;Smith, Lo, & Sudore, 2013).…”

Dementia and legal determination of capacity

“…Legal incapacity is, therefore, a restriction or constraint upon civil acts. The concept of legal capacity differs from the medical concept of capacity, which defines a set of skills required such as memory, judgment and decision-making, in order to manage affairs and carry out daily tasks 9 . Mental capacity is not universal.…”