Legal Capacity: the Importance of Starting the Process Early

One issue that frequently arises in the clinic is whether it is appropriate for the patient to sign a legal document. The issue is that of “capacity”; that is, does the patient have the capacity to make important decisions and judgments regarding who should have legal control of himself or herself. The answer depends, in turn, upon the answer to several other questions:

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  What type of deliberation needs to be undertaken to fully understand the implications and ramifications of the document, if signed?

  
  
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  How impaired is the patient?

  
  
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  Is everyone on the same page? Or are there other family members who will likely be con­testing the patient’s capacity to make these decisions?

Note that, because different documents pertain to different issues that may involve a different level of complexity or require a different level of understanding, patients may have capacity for one document but not for another. However, the capacity required for the documents discussed here is similar for each document.

As the clinician, you can help determine whether the patient has the capacity to sign certain documents by (1) talking with the patient, (2) working with the family, and (3) using your knowledge of the patient’s cognitive status to assess whether the patient is able to understand the issue raised in the document to be signed. For example, Mr. John Jones (the patient) and his wife (primary caregiver) come to the clinic today, and Mrs. Jones asks, “Is it all right for John to sign paperwork for legal and healthcare power of attorney?” We know that Mr. Jones has mild Alzheimer’s disease dementia with a MMSE score of 23 (and a CDR of 1.0; see Chapter 4 ), and that he probably has the cognitive ability necessary to have the legal capacity to sign these documents. We ask Mr. Jones, “Do you understand what it means for you to sign these documents, the legal and healthcare power of attorney?” If he answers, “Yes, it means that Mary can make legal and medical decisions for me if I am not able to,” then this answer, coupled with his cognitive status, leads us to the conclusion that he has the capacity to sign the documents. If, on the other hand, he gives the more common answer, “I don’t know … what do these documents mean?” we would then need to explain each one to him:

In this scenario the patient understands what each document means and his answers, coupled with our knowledge of his cognitive status, lead us to conclude that he has the legal capacity necessary to sign them. The question of whether a patient has the capacity to allow a family member to take control of his or her affairs is typically contentious only when there is more than one family member vying for control. When multiple family members are involved, it is best to get them all in the room together with the patient. It typically becomes readily apparent who has the patient’s best interests at heart, or who will be the most responsible with financial affairs. If a family consensus can be reached, then things go smoothly. If not, it will be up to the courts to decide.

It goes without saying that the less impaired the patient is, the greater capacity the patient will have, and the easier these types of issues and decisions become. We therefore encourage the family to start the legal planning early—before the patient becomes too impaired to make these decisions, before the patient loses capacity. Note that it is important that all family discussions regarding capacity and other legal issues be well documented in the medical record.

Legal Documents

There are a number of legal documents of which the patient and family should be aware. An attorney is necessary to prepare and execute these documents. Finding the right attorney is important. If the patient has a family attorney, he or she may be able to assist the family in these matters, or refer them to an appropriate attorney. If not, one good place to start in the United States is to call either the local Alzheimer’s Association office ( www.alz.org/apps/findus.asp ; 800-272-3900) or the local Agency on Aging office (or contact the Eldercare locator www.eldercare.gov ; 800-677-1116). In England, Wales, and Northern Ireland the Alzheimer’s Society can help provide this information ( www.alzheimers.org.uk , 0300 222 1122).

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  Guardianship (conservatorship in some US states) is the court-appointed individual to make decisions on the patient’s behalf regarding the patient’s assets and/or healthcare. Guardianship is only given by the court when it finds that the patient is legally incompetent. Note that a diagnosis of Alzheimer’s disease alone does not make a patient legally incompetent.

  
  
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  A living will is a document that indicates the medical choices the patient would wish to make if he or she is unable to make them, such as whether cardiopulmonary resuscitation (CPR) should be performed should there be a catastrophic event and his or her heart were to stop beating.

  
  
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  Power of attorney is the document that allows the patient to name an individual to make legal and financial decisions when he or she is unable to. A “durable” power of attorney means that the power of attorney is valid after the patient can no longer make his or her own decisions. Usually the power of attorney is “durable.”

  
  
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  Power of attorney for healthcare is the document that allows the patient to name an individual to make medical and other healthcare decisions when he or she is unable to. These decisions would include choosing between different:

  
  
  
  
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    Physicians and other healthcare providers

    
    
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    Types of treatment (e.g., surgery versus medical versus palliative)

    
    
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    Long-term care facilities.

  
  

Note that there is overlap between the living will and the power of attorney for healthcare, such that it might be possible that the living will specifies the preference for one treatment (e.g., DNR—Do Not Resuscitate), whereas the individual with the power of attorney for healthcare specifies another (e.g., CPR when appropriate). In these circumstances there is an assumption that the power of attorney for healthcare is following what the wishes of the patient would be if he or she were able to articulate them in the particular circumstance that has arisen. Given this assumption, it would be highly unlikely that physicians or attorneys would “overrule” the power of attorney for healthcare, despite an apparent contradiction with the patient’s living will.