American Journal of Law & Medicine

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

CONTENTS

I. INTRODUCTION
II. MEDICAL MODEL: CAPACITY DETERMINATIONS
    A. The Role of Cognitive Skills and Neurodegenerative
       Conditions
    B. Underlying Elements: Presumption of Capacity
       and Context-Specific Considerations
    C. Criteria for Capacity Evaluation
    D. Evaluation Process and Instruments
III. INCOMPETENCE AND GUARDIANSHIP: A GLOBAL SYSTEM
    A. The Global Approach to Competency Determinations
    B. Vague Statutory Definitions and Limited Guidance
    C. inadequate Information from Clinical Experts
IV. RECOMMENDATIONS
    A. Gradient Competency Determinations
    B. Mechanisms for People Who Do Not Meet the
       Threshold for Incompetence
       1. Limited Guardianship
       2. Supported Decision-Making
       3. Judicial Oversight of Less Restrictive Measures
V. CONCLUSION

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.

I. INTRODUCTION

Ms. Jones, a seventy-five-year-old widow, lives independently in a home located in a retirement community. Her neighbors watch over her by stopping in from time to time, often bringing groceries and cooking meals. A neurologist diagnosed Ms. Jones with amnestic mild cognitive impairment three years ago, shortly after her husband passed away. Her physicians believe her impairment is of the Alzheimer's type and she will likely progress to dementia. She has two daughters and a son. Her daughters live out-of-state and visit regularly around the holidays and for special events. Her son lives thirty-five minutes away and comes to see her once a week. Recently, Ms. Jones began demonstrating apathy towards previously enjoyed hobbies and regularly complains of forgetting parts of books she has read or movies she has seen. During a recent visit, her son inquired about bank notices on the kitchen table. Ms. Jones calmly explained that her account was overdrawn and that it was a "silly mistake." Her son is concerned that she may no longer have the capacity to manage her own finances. Yet, only Ms. Jones has access to her bank accounts, opened when her husband was alive. This prevents her son from reviewing bank records without her approval, which she refuses to provide. He struggles to determine whether to pursue legal actions. Because she has been able to get by thus far, he is reluctant to take away her freedom through a guardianship before it is necessary.

An aging society in the United States will place an increased burden on families, probate courts, and others to manage societal and personal challenges. 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. (1) As society ages, the number of elderly with cognitive deficits will also increase. (2) While cognitive decline is commonly associated with normal aging, an additional subset of the population experiences an increased burden of cognitive and functional deficits resulting from neurodegenerative conditions. Age-associated neurodegenerative diseases include Alzheimer's disease, Parkinson's disease, and multiple classes of dementia.3 While similar cognitive decline may be associated with "normal aging," those that suffer from neurodegenerative conditions will experience significant impairments that heighten the types and frequency of challenges experienced by the individual and family. Attributes of neurodegenerative conditions, like Alzheimer's, challenge caregivers and family members to address concerns relevant to the patient's day-today living needs. Ms. Jones may be experiencing a decline in her executive functions and memory. These declines may cause her to forget that she made a specific purchase or cause challenges with balancing a budget. These progressive deficits will challenge her son, as well as her daughters, to address how to effectively help her manage finances and other daily tasks without prematurely restricting her autonomy. Individuals with cognitive deficits are at an increased risk of lacking capacity in one or more contexts (e.g., medical consent, financial management, and living independently). Family members who are unable to assist loved ones with these tasks through informal interventions often look to clinicians and the legal system for guidance.

The guardianship and probate system provides legal protections for those incapable of managing their own person or affairs. A legal determination of incompetency is a prerequisite to a judicial order appointing a guardianship or other protective mechanism. (4) The significance of incompetency determinations challenges probate courts to balance an individual's autonomy with necessary protective measures. Autonomy, an individual's right to control her decisions and actions, requires that others respect her decisions or actions. (5) For example, a healthcare provider must respect an individual's request to refuse treatment. (6) A legal determination of incompetence removes an individual's legal authority to manage her own affairs and has broad implications for her daily interactions and activities. (7) The right extends to those decisions that are objectively risky or dangerous. (8) Nevertheless, when an individual lacks capacity or a court declares her incompetent, her decision-making authority may be restricted. (9)

The dynamic relationship between competency and capacity are at the cornerstone of a state's parens patriae right to limit autonomy. Though often used interchangeably, capacity and competency reside in two different contexts. A judicial body, usually a probate court, determines whether a person is legally incompetent. (10) In contrast, clinicians--physicians, psychiatrists, or other experts--determine whether an individual has decision-making capacity. (11) Yet, determinations of incapacity and incompetence result in similar restrictions of an individual's autonomous decision-making authority. (12) Standards for capacity and competency determinations are interrelated. Judicial decisions and statutory language inform clinical capacity criteria and assessments. (13) Similarly, judicial and legal standards are derived from clinical capacity criteria and clinically based research. (14) Despite the interrelated attributes of competency and capacity, these concepts adhere to different structures. Capacity is a continuum and is context-specific. (15) Conversely, most state laws define competence without providing for an intermediate determination that allows for gradation. (16) Instead, competency is determined largely through a global structure. (17) Under this structure, an individual is declared either competent or incompetent. (18) The complicated dynamic between competence and capacity leaves judges to determine where along the capacity continuum an individual becomes incompetent.

The current legal-medical model for competency determinations fails to accurately reflect the complexities of declining capacity in an aging population. A global structure for competency determinations leaves a critical gap between competent and incompetent. This 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. Ultimately, it limits protections available to individuals who do not yet meet the threshold for incompetency. This leaves family members and caregivers with more questions than answers: When do I intervene? Who will serve as a guardian if my siblings live out of state? Where will my mother live? Who will manage her finances? Who will make medical decisions? Ultimately, family members, like Ms. Jones's son, are left with the burden of protecting their loved one from potential risks related to cognitive and functional impairments.

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. The cyclical relationship between law and medicine demands convergent approaches to evaluating an individual's abilities to engage in financial, medical, and other critical decision-making processes. A revised legal model will include additional legal mechanisms that provide protective measures tailored towards individuals' deficits. 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, (19) few 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.

Part II provides an overview of the medical model for determining capacity, providing a basis for assessing the effectiveness of the legal model for competency determinations. Part III critically examines the current legal approach for competency determinations and protective mechanism orders. Through an overview of the current structure, flaws in the current approach are illustrated. Specifically, the current judicial process of declaring incompetency fails to provide a balance between autonomy and needed protections. Finally, Part IV discusses two recommendations to address faults in the current system: (1)judicial determinations of incompetence should adopt a gradient structure that reflects the realities of capacity; and (2) legal protections should be implemented and improved that apply to those who fall in the gap between incompetent and competent, such as limited guardianships. These recommendations seek to create a more effective system that provides needed protections, prevents overly restrictive measures, and provides families and caregivers mechanisms to intervene when necessary.

II. MEDICAL MODEL: CAPACITY DETERMINATIONS

Capacity, determined in medical contexts, is the "collection of skills such as memory, judgment, and decision making required to manage one's affairs and perform everyday tasks." (20) An individual's level of capacity to make decisions, including medical decisions, at any given time is "a point along a continuum" described by his or her abilities. (21) Capacity assessments are pivotal to assuring that those who cannot care for themselves receive necessary protections, while respecting the autonomy of those that can. Upon a clinician's determination that an individual lacks decision-making capacity, a surrogate decision-maker will be identified to make decisions on the patient's behalf. (22)

A. THE ROLE OF COGNITIVE SKILLS AND NEURODEGENERATIVE CONDITIONS

Nearly 50 million people are affected by one of approximately 600 neurodegenerative conditions (including Alzheimer's disease, Parkinson's disease, and Amyotrophic Lateral Sclerosis) every year. (23) Symptoms associated with neurodegenerative conditions, while heterogeneous, generally include a progressive decline in functional and cognitive abilities. (24) Cognitive and functional deficits interfere with daily activities, infringe on skills necessary for independent living, and challenge familial and social relationships. (25) Cognitive deficits affect an individual's abilities to process information relevant to the decision-making process. (26) Clinicians (e.g., neurologists, neurophysiologists, or geriatricians) can evaluate cognitive abilities through standardized tests, including the Mini-Mental State Exam (MMSE) and the Montreal Cognitive Assessment (MoCA), or more thorough neuropsychological exams. (27) These tools produce valuable information for capacity evaluations, including helping to identify cognitive deficits relevant to a specific context and the degree of the deficits. (28) Functional deficits are deficits that interfere with everyday living tasks. (29) Functional abilities are further classified according to instrumental activities of daily living (IADLs) and activities of daily living (ADLs). …

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