• Patricia Y. Comer

With Medical Decisions, ‘Capacity’ Is the Key

For those who are concerned about signing a Health Care Proxy (Living Will), I have attached the following article to displace any misunderstandings about the word "capacity".

-Pat Comer

*The following is an article written

by Jacquelyn Mingle from the Fleming & Curti PLC Newsletter, Tucson, Arizona

“As long as you are able to make medical decisions, you get to make your own.”

We often tell clients that when we are discussing creating a medical health care power of attorney. In the document, a “principal” names an “agent” to make decisions for the principal if/when he or she no longer can. The “HCPOA” helps avoid guardianship proceedings, too. Each health care power of attorney is what we call “springing” – it springs into effect only upon the incapacity of the principal.

That seems simple. The reality, however, can be pretty complicated.

What is ‘Capacity’ to Make Medical Decisions?

“Legal capacity” is the ability to understand a certain action. “Capacity” at any given time depends on the nature of the act in question. Different acts require different thresholds of capacity. Capacity to sign a contract is different than signing a Will or giving gifts or getting married. Capacity is always situational and determined on a “sliding scale.”

In a medical context, capacity means the ability of a patient to understand information about a proposed treatment and then make a choice consistent with his or her values. When we envision an assessment of medical capacity, we may picture an exam that considers our understanding of treatments and our ability to express a choice. In practice, such an assessment is rarely performed. Even if an exam is given, a determination can be difficult. More so if a person has symptoms of dementia or suffers from mental illness.

Common Misunderstandings

Even medical professionals don’t fully understand the nuances of capacity. One study found these 10 common myths among clinicians:

1. Decision-making capacity and competency are the same;

2. Lack of decision-making capacity can be presumed when patients go against medical advice;

3. There is no need to assess decision-making capacity unless patients go against medical advice;

4. Decision-making capacity is an “all or nothing” phenomenon;

5. Cognitive impairment equals lack of decision-making capacity;

6. Lack of decision-making capacity is a permanent condition;

7. Patients who have not been given relevant and consistent information about their treatment lack decision-making capacity;

8. All patients with certain psychiatric disorders lack decision-making capacity;

9. Patients who are involuntarily committed lack decision-making capacity; and

10. Only mental health experts can assess decision-making capacity.

Where Statutes and Documents Can Help

Health-care power of attorney documents rarely help. Few of these documents provide guidance to the agent or medical provider regarding when the power “springs” into effect. The standard Arizona form simply states: “This power of attorney is effective on my inability to make or communicate health care decisions.”

In some states, statutes provide default provisions that govern if the document is silent. Wisconsin, for instance, provides that a health care power “takes effect upon a finding of incapacity by 2 physicians . . . , or one physician and one licensed advanced practice clinician, who personally examine the principal and sign a statement specifying that the principal has incapacity. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to make a finding of incapacity. . . . ”

Arizona does not provide such guidance, so you may want to add some. Attorneys can customize any document to suit a client’s wishes.

Carefully Consider Your Situation

Providing a standard and a mechanism can be complicated, too. It’s important to strike a balance between ease of use (especially in an emergency) and safeguarding your rights. A standard that is restrictive might cause delays in care, and one that is too lax might strip you of the ability to make medical decisions before you are truly incapable.

Consider the medical professional and who you’ve selected as agent. (Take care in selecting the agent, too.) If you say “two physicians familiar with my care,” that means a nurse practitioner, physician’s assistant, or psychologist would not qualify. Plus your agent has to obtain statements from two. Would he or she have the motivation and ability? In modern medical care, “physicians” are becoming more rare, and are often difficult to reach. Consider expanding the class of people who can make the call. But don’t expand too far. If you opt for a very generic term such as “medical provider,” almost any person on the medical team could qualify. If you have a specific condition, consider making the decider very specific: Neurologist? Geriatric psychiatrist?

Also consider the assessment. Do you want a formal examination? In writing? Attached to the document? Confirmed periodically?

You should already be reviewing documents regularly. You may want to take a little extra time to consider the “incapacity” question. While you are at it, review the similar provisions in financial powers of attorney and trust, if you have one. They also should be consistent with your values and your circumstances.

Author: Jacquelyne Mingle

August 2, 2020

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