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Perhaps you’ve noticed an older relative who is taken in by every tele-marketer that calls them. Or they are afraid to answer the door because they feel someone is out to get them. You’re worried about their mental health and whether or not they can still look after themselves. Incompetence and losing the ability to make good decisions are signs that a loved one may need an evaluation to determine what is causing the problem. When it comes to decision making, the legal term used is “capacity”.

What does capacity mean when it comes to decision making?

  • A person must be able to show you that they have the necessary mental abilities to make a decision.
  • They must understand the situation they are in, what the decision is that they have to make and the consequences of their choices. They should also be able to tell you why they made this decision and show that it is based on reasonable thinking.

The 6 most important capacities for adults are:

  • The capacity to live independently.
  • Financial capacity.
  • The capacity to give medical consent.
  • Testamentary capacity.
  • Sexual consent capacity.
  • The capacity to drive.

Capacity can change, depending upon a person’s present circumstances. An example would be after an operation when a patient is woozy. Those with dementia also have fluctuations in capacity. Neuropsychological testing is not necessary to prove capacity. A physician can determine the state of an Alzheimer’s patient’s capacity by speaking with them. They can also receive evidence from family and close friends.

Though deciding capacity is a legal decision, physicians are allowed to determine capacity for medical reasons and in the case of assigning someone to take over health care decisions. The word capacity is usually used in a medical sense while incompetence is a legal term used before the courts. The terms clinical capacity and legal capacity are more often used now.

Depending on your state or province there are various avenues you can take if a loved one is showing signs of incapacity, such as driving dangerously. In most cases a doctor is able to withhold their driving privileges. If there are various problems with capacity, testing can be done to show how much a person’s cognitive abilities have declined.

For the full article on incompetence and losing capacity, click here.