Kelly Purser

Evaluation of legal capacity by doctors and lawyers: the need for collaborative assessment.

Balancing the interests of individual autonomy and protection is an escalating challenge confronting an ageing Australian society. One way this is manifested is in the current ad hoc and unsatisfactory way that capacity is assessed in the context of wills, enduring powers of attorney and advance health directives. The absence of nationally accepted assessment guidelines results in terminological and methodological miscommunication and misunderstanding between legal and medical professionals. Expectations between legal and medical professionals can be clarified to provide satisfactory capacity assessments based on the development of a sound assessment paradigm.

Too ill to will? Deathbed wills: assessing testamentary capacity near the end of life

Assessing testamentary capacity in the terminal phase of an illness or at a persons deathbed is fraught with challenges for both doctors and lawyers. Numerous issues need to be considered when assessing capacity for a will. These issues are exacerbated when such an assessment needs to be undertaken at the bedside of a dying patient. The nature and severity of the illness, effects on cognition of the terminal illness, effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers, and a range of other issues confound and complicate the assessment of capacity. What is the doctors role in properly assessing capacity in this context and how does this role intersect with the legal issues? Doctors will play an increasing role in assessing testamentary capacity in this setting. The ageing of society, more effective treatment of acute illness and, often, the prolongation of dying are only some of the factors leading to this increasing need. However, despite its importance and increasing prevalence, the literature addressing this challenging practical area is scarce and offers limited guidance. This paper examines these challenges and discusses some practical approaches.

Some Proposed Suggestions

The final chapter draws together the preceding discussion through the proposal of some novel solutions to the identified challenges as a way in which to progress the capacity assessment dialogue. This necessarily starts with the definition of capacity. In order to adequately assess capacity, health and legal professionals must first understand what it is they are assessing and to what standard. The medico-legal relationship needs improvement, supporting not only those being assessed, but also the professionals involved in the assessments, especially for those who undertake assessments on an infrequent basis. The satisfactory assessment of clinical capacity within a legal framework likewise requires education and training, both with and between the professionals involved in conducting the assessments, but also within society more broadly. This is also discussed, as are the general principles which should inform any satisfactory assessment paradigm. Suggestions are then made about the assessment process itself, including the role of health professionals. Ideally, input is needed from all relevant stakeholders in order to develop a best practice paradigm, and so hurdles and hindrances are identified. This should not prevent the progression of the dialogue in this fundamentally important area towards developing best practice standards, especially as capacity assessments, and the problems they present, are only going to increase in the near future.

Capacity Assessment: An International Problem

The challenge of ensuring rigorous capacity assessments is being seen internationally. The loss of capacity is not nation-specific. This is especially the case given the freedom of movement and communication that people enjoy within modern society. This chapter seeks to explore some of the best capacity assessment guidelines worldwide. Guides have been chosen from Australia, the United Kingdom and the United States of America. This is not a systematic review and is unable to be given the multitude of assessment guides which are then further manipulated by both health and legal practitioners to suit their own individual skill sets. This chapter instead reviews a selection of guidelines to progress the dialogue about what constitutes best practice when assessing capacity on the world stage. The guidelines from the United Kingdom and the United States of America are of particular interest given that they adopt an interdisciplinary approach, having been developed by legal and health organisations acting in consultation with one another. This discussion of these guidelines demonstrates the importance of the professions and other interested stakeholders adopting an outwardly rather than inwardly-focused view when considering what best capacity assessment practice should entail.

The Challenges Presented by the Assessment of Legal Capacity

Incidents of mentally disabling conditions are increasing exponentially and populations worldwide are ageing. More and more people are considering available options to plan for the future, a future in which they may no longer be able to make their own, legally recognised decisions. One tactic to accomplish this is through estate planning, particularly wills and enduring documents. The effect, however, of both the ageing population and the rising numbers of conditions impacting capacity is that the number of assessments conducted in the testamentary and substitute decision-making context are likewise swelling. Although the determination of capacity is ultimately a legal decision, the complexity of mentally disabling conditions necessitates collaboration with health professionals to accurately assess capacity. The challenge arises when there is a lack of communication resulting in misunderstandings around the nature of the cognitive assessment to be conducted within the specific legal framework. This impacts not only the individual whose capacity is being assessed, but also the legal and health professionals involved in the assessments, especially as professional liability concerns grow. Inherently linked to the question of satisfactory assessments is the fundamental issue of cost. This chapter discusses the challenges confronting consistent and accurate capacity assessments, including an exploration of the medico-legal interface, but also the essential role of families and society. Understanding the difficulties facing those involved with assessing capacity will assist in progressing the discussion around developing a best practice methodology in an attempt to attain the elusive balance between autonomy and protection of the vulnerable.

Substitute Decision-Making

Decision-making capacity is generally recognised once an individual attains the age of majority and is only lost upon the determination that the individual has lost the legal capacity necessary to make a specific decision. The increase in mentally disabling conditions, as well as cognitive decline associated with ageing, mean that although people are living longer they may not have the capacity required at law to make their own decisions. Nevertheless, individuals still need to accomplish the tasks associated with day to day living including purchasing food and paying expenses. The assessment of the requisite capacity to make enduring documents is the focus of this chapter. The relevant overarching principles are discussed. Although an examination of supported decision-making is outside the central scope of this work, reference to the paradigmatic shift taking place from substitute towards supported decision-making in line with the Convention on the Rights of Persons with Disabilities is made. Nevertheless, enduring documents, and substitute decision-making, still play a significant role in estate planning. Accordingly, evidencing the loss of decision-making capacity is also examined here.