Assessing Capacity for MentalCompetence to Act in Legal Matters
Mental capacity in legal context refers to the ability of an individual to understand, retain, and weigh information relevant to a specific decision and to communicate their wishes regarding that information. It is a sliding scale, meaning a person could be legally competent to make some decisions, but not others. People with dementia may be mentally competent to make some decisions, but not others. For example, a person diagnosed with Alzheimer’s Disease may have the mental capacity to sign a power of attorney , but may not have the mental capacity to sign a will or trust. Determining mental capacity is mostly a subjective judgment rather than an objective, black-and-white test.
When determining mental capacity, professionals may consider a number of different factors, including: A working knowledge of these factors as well as the applicable law is essential for an evaluative attorney seeking to determine a person’s capacity to execute a legal document.
Legal Issues for Individuals with Dementia
Although dementia is not in itself legally disqualifying, it can limit (or potentially limit) a person’s capacity to make and communicate decisions. Because of this, people with dementia can face significant legal challenges even in meeting with solicitors, banks, and third parties.
A number of legal challenges can arise for people with dementia and their families, including:
The legal challenge that family members, carers, service providers, and solicitors face is identifying the implications of the incapacity, finding an appropriate means of making decisions on behalf of the person with dementia while ensuring that the person’s rights and autonomy are protected.
This is particularly important for advanced directives, which are decisions that have been made prior to the onset of dementia. Legal validity of advanced directives varies by jurisdiction; more commonly, an advance directive will not be legally binding after the onset of dementia.
Validating the Signing of Legal Documents by Persons with Dementia
To determine the validity of a legal document signed by an individual with dementia, courts and legal professionals first consider the capacity of the individual at the time of signing. Capacity is often presumed, and therefore it is the burden of the party attempting to prove that a document or deed is invalid in light of the signer’s mental condition. Legal documents signed by individuals suffering from some form of dementia usually survive challenge if the capacity to execute the document can be shown by the following:
- (1) The individual understood the nature and effect of the transaction in question;
- (2) The individual was able to know from whom he or she was receiving the subject matter of the transaction and who would be affected by the transaction; and
- (3) The individual had a general idea of the kind of property and amounts involved in the transaction.
A person signing a will or trust does not have to have the capacity or intelligence of a genius. As long as he or she is able to know what property he or she is giving away, with the knowledge or understanding of who is to receive it, that person possesses the minimum level of capacity to sign a will or trust.
Once the validity of a document is challenged, it may be necessary for the court to order an expert evaluation through the appropriate governmental agency. This is especially true where there is an allegation of undue influence by the person who benefited under the document. The appropriate agency will then conduct an in depth exploration of the client’s condition, and prepare a report.
Families and Caregivers in Legal Decisions
In cases where dementia is involved, a court may allow a family member or other caregiver to assist or intervene in the legal decision-making process. The court order will specify the family member or caregiver and the extent to which he or she can assist or intervene with the person with dementia in the legal process. Family members and caregivers may also become part of the legal process if the person with dementia lacks the capacity to refuse entry into a care home and the family member or caregiver seeks to intervene for that purpose. It is important to note that the Defined Adult Statute does not speak to informing the family member or caregiver if the vulnerable adult refuses to share information; however , financial institutions may choose to inform the family member or caregiver of the concerns that the financial institution has about the Defined Adult and the available options. In these circumstances, clearly the Defined Adult cannot provide consent to the release of this information that he wishes to keep confidential.
Legal Protections and Safeguards
In response to the challenges related to legal documents and dementia, there are several legal safeguards and protective measures available. Broadly speaking, these are recommended for all adults, but they take on particular importance in the context of dementia.
A conservatorship (sometimes called an adult guardianship) is a process wherein a judge determines that a person, due to incapacity, is unable to make certain decisions. Once that determination has been made, the judge has discretion to appoint someone to make those decisions on behalf of the person with dementia. Often this person is a family member, but other individuals may also be installed as conservator.
When someone is fitted with an incapacity conservative, the person’s rights are quite limited. A conservator has full power over the ward’s property. The conservator may be required to post a bond. The conservator must file an initial inventory and annual accounts with the court to report to the judge. If the conservator sells property or enters into a contract for the ward, court permission may be required. Depending on the state, he conservator must have approval from the court to change the residence of the ward, or place them in a nursing home. He conservator must also consult with the court before lending the ward any money. The conservator has the ability, however, to use gift and withdrawal powers as set out in the state statutes, which result in an amount of self-determination by the ward.
For our purposes, the most important care decision that a conservator can make is whether to consent to the withholding or withdrawal of life-sustaining treatment. Most states accept a presumption that a progress is never to be kept alive indefinitely through artificial means, even if that prolongs the process of death.
To be effective and binding on third parties, a durable Power of Attorney, sometimes called a DPOA, must be signed by the Principal when the Principal is competent. If the Principal becomes incapacitated, then the Power of Attorney is effective as it would have been during capacity. The decisions that a DPOA can make are virtually unlimited. In some states, the DPOA can make health care decisions, such as euthanasia or removal of life support, when that is clearly specified in the document. In many states, however, it is very difficult for a DPOA to gain authority to remove or withhold life-sustaining treatment. Because of this, if the Principal wishes for a DPOA to have that authority, such consistency in the DPOA is essential.
A health care directive or health care proxy functions like a DPOA specifically for health care concerns. Unlike a DPOA, a health care directive requires execution before the incapacity of the Principal to be effective for end-of-life health care concerns. Health care directives direct a specific type of treatment for a Principal who is no longer competent to express their wishes. These directives may specifically grant a family member or friend the authority to withhold or withdraw life sustaining treatment, including a feeding tube, in appropriate circumstances. Once again, each state’s laws vary, but many courts construe a health care directive to require a prognosis of death for the Principal to authorize withholding or withdrawing life-sustaining treatment.
As noted above, the execution of a DPOA or health care directive can grant more freedom on the Principal’s behalf than a conservator can. Therefore, we recommend the use of these tools for all adults, though particularly those with dementia.
Consulting Attorneys
When dealing with legal documents involving persons with dementia, it is best to consult the appropriate legal professional. Most legal professionals who regularly deal with wills, estate and guardianship matters know about the potential problems that arise when dealing with persons who are challenging will contests and court actions on the basis of mental incapacity.
In particular, in Ontario, if a guardian or attorney wishes to make a decision on behalf of an adult whose mental capacity is in question, it may be necessary to apply to the court for a declaration that the person is incapable with respect to the matter (See the Substitute Decisions Act, O. Reg. 1/05 s. 39.5.1). If a person intends to apply to court to challenge the decisions made by the representatives of a person suffering from dementia, the guardian or attorney should obtain the information about the capacity of the person making the decisions so that an appropriate response can be put together .
Unless the person has very specific instructions, a guardian or attorney may not choose to make decisions with respect to a potentially contentious issue (such as involving real property) without first consulting an estate or guardianship litigation lawyer. In addition, without knowing whether there are legal or practical concerns in advancing a particular course of action, it may be difficult to proceed without an informed, dynamic strategy. Estate or guardianship litigation lawyers are familiar with the presumptions of capacity, the common law test for testamentary capacity, and the common law test for capacity to make a POA for property. Even if the litigation can be avoided, an estate or guardianship litigation lawyer may be required to conduct a file review to determine whether there is sufficient evidence documenting the capacity of the individuals who signed the disputed agreements.