iStock_000020367800MediumBy Jack Roth

Determining an older adult’s capacity presents a complicated challenge that can result in life changes for patients and their families, including the professional management of some everyday tasks, placement outside of the home, and even legal guardianship. For caregivers, it is important to remember that you don’t have to be an attorney or physician to determine capacity in order to protect the rights of your clients.

“A geriatric care manager might say, ‘I’m not an attorney or judge,’ which makes them back away from making these kinds of assessments because they think they’re not legally qualified,” explains Robbin Adams, MSW, Director of Care Services at One Senior Place, “but the fact remains that professional caregivers have an ethical responsibility to intervene in order to protect their clients.”

According to the National Institute of Aging’s (NIA) Encyclopedia of Aging and Public Health, in the health care and legal settings, the term “capacity” is often used with respect to mental competence and the ability to make informed decisions regarding one’s health care, personal matters, financial affairs or legal matters. The legal standard used by most courts to determine incapacity is whether a person lacks sufficient understanding or capacity to make responsible decisions concerning him or her. Clear and convincing evidence is required to support a finding of incapacity, which is legally referred to as “incompetence,” because such a finding strips the individual of his or her ability to make any binding legal decisions in the area in which he or she is declared incompetent, such as matter related to that person’s finances or person.

“Capacity for many is something that is determined by outside forces such as the courts, but how does the court system find out about the situation?” asks Adams. “As care managers and social workers, there’s no accountability when we interface with seniors who may show signs and symptoms of cognitive decline yet we do nothing to help. Should we accept a check from a person who is unsure of the date or even the year for which they are writing it? Should we accept a signed contract for services from a person who needs us to complete the service because they’re no longer able to do so without asking why?”

No individual should be judged to be incapacitated merely due to a disability, advanced age, or being diagnosed with a progressive condition such as Alzheimer’s disease. It’s also important to remember that some areas of decision making require a higher level of comprehension and reasoning than others. Seniors whose cognitive or reasoning abilities are diminished may have the understanding, insight and willingness to take legal measures such as executing durable general powers of attorney for finances and health care powers of attorney to appoint persons of their choice to handle their affairs should they become unable to do so.

So what is your responsibility as a professional caregiver when it comes to determining capacity in clients? “The fact that someone hasn’t been deemed legally or clinically incapacitated or incompetent may protect you legally, but it doesn’t protect you ethically from the fact that your client may not know what they’re doing and may not be making good decisions,” stresses Adams. “A good caregiver needs to make this distinction.”

The goal for the caregiver, says Adams, is to be able to evaluate capacity from an ethical standpoint and identify the circumstances that would make a legal guardianship appropriate. “You’re basically making the right people aware of your client’s diminished capacity so that the legal and clinical evaluation processes can begin,” she says. “In other words, you may not be an attorney or a physician, but you are capable of bringing the appropriate awareness to the situation. And even if your client isn’t deemed legally incompetent or clinically incapacitated, you’re doing your best to protect their rights.”