The assessment of capacity is a growing practice area for psychologists as healthcare and legal settings are increasingly seeking nuanced functional assessment of this complex construct (Moye, Marson, & Edelstein, 2013). A good starting point in the definition of capacity is “a threshold requirement for an individual to retain the power to make decisions for themselves”(Appelbaum & Gutheil, 1991) . Capacity is a concept with both clinical and legal applications. The terms legal capacity or clinical capacity recognize that an individual may have varying strengths and weaknesses and that incapacity in one area does not unequivocally render an individual incapable of executing a task or making a decision across all domains. The term competency (or incompetency) was formerly employed in legal and often clinical settings to reflect a global finding that the person lacks the ability to make all decisions. Its usage is no longer favored in legal or clinical settings. Instead, function-driven terminologies including “capacity” and “capacities” are now preferred given changes to state laws. Legal standards must be consulted in determining definitional criteria for each of several types of capacity and for use of the terms “incapacity” or “diminished capacity,” which will vary by state.

The issue of capacity tends to arise in a clinical setting when an individual is making a decision that is putting health or finances at risk (in which case financial capacity, medical consent capacity, and/or independent living capacity would be assessed), although several other types of capacities also exist (including driving, testamentary, and sexual consent capacity). Examples of such situations include the decision to refuse treatment for overtly “irrational” reasons, non-adherence with essential health management (e.g., rarely bathing, mistaking medications), misspending or loss of money, reckless driving, endangering self and others, and failure to perform the most essential home-care tasks (e.g., maintaining necessary heat or water). In these cases, the treatment team or family is challenged with balancing the need to promote autonomy versus protect the person from harm. In the setting of a neuropsychiatric illness (e.g., moderate dementia, acute psychosis, acute or persisting delirium), the team or family may question whether the condition is so impairing to the individual’s functioning that it is appropriate to consider involving a surrogate decision maker.

Legal Context

Surrogate decision makers may take many forms. For medical decision making, in most cases, a clinical finding of incapacity will permit the agent (the named decision maker) under a durable power attorney for healthcare (also called healthcare proxy or advance directive) to be activated by the attending physician, so that a previously appointed surrogate decision maker can become responsible for medical decisions on behalf of the individual (e.g., to consent to medical treatment or prodedures; Moye, Sabatino, & Brendel, 2013). In executing an advance directive, the person appoints another to make decisions, and in some states “instructional” components are allowed which are written instructions of medical care preferences. With regard to financial capacity, a durable power of attorney for finances was ideally, but not often, also previously executed, such that the appointed agent could assume financial decision making. In cases where such documents have not been executed, many situations can be clinically managed through engaging family in shared decision making. Durable power of attorney for healthcare and finances are often considered to be less restrictive alternatives to guardianship as they minimize the intervention of the state. However, at times, there is no family or such conflict between the patient and others, that a guardian (has decision-making rights for the “person”) or conservator (has decision making rights regarding the “estate”) appointment might be sought.

A clinical finding of incapacity does not alter an individual’s legal status, whereas a legal finding of incapacity does. However, a legal finding often in large part depends on the clinical evidence provided to the court, which may be based upon the psychologists’ evaluation of decision making capacity. Often following a legal determination of incapacity for independent living, guardianship may be required if the court gives another person or entity the authority to make surrogate decisions for an individual (e.g., often including where to live or travel, how to manage finances and business arrangements, how to manage lawsuits).

In all cases, clinical assessment should be consistent with legal definitions for the specific capacity in question (as found in statutes or case law), as capacity is ultimately a legal construct (Sabatino & Basinger, 2000) and the assessment may be reviewed in a court of law (ABA-APA Assessment of Capacity in Older Adults Working Group, 2005). The level of scrutiny dedicated to such evaluations should be high given the legal ramifications of a decision of incapacity on an individual. If a finding of incapacity is substantiated, the individual loses the authority and in many cases the right to self-determination. A clinical capacity evaluation is ultimately a professional clinical judgment based on objective data. In addition, a capacity evaluation may involve a disagreement between the examiner and the patient, such that the extent of functional deficit prohibits a level of autonomy that would be desirable to an individual.

The guardianship reform movement (Moye & Naik, 2011) occurring in the late 1990’s and 2000’s reflected evolving conceptualizations of capacity. Guardianship hearings were often brief, relying on incomplete or illegible (Bulcroft, Kielkopf, & Tripp, 1991; Dudley & Goins, 2003; Moye et al., 2007) information, and resulting in plenary appointments (judicial orders transferring all rights and powers to guardians) (Lisi, Burns, & Lussenden, 1994). More than 272 bills have been voted into law across all 50 states, changing the procedures dramatically for guardianship appointment including: substituting the term capacity for competency ; encouraging the presence of the alleged incapacitated person at the hearing; requiring functional evaluation by clinicians that is based upon multiple sources of information; and limiting the authority of the guardian to specific areas (ABA-APA Assessment of Capacity in Older Adults Working Group, 2006). The additional considerations entailing assessment of specific types of capacity (e.g., financial, medical consent, sexual consent, testamentary, driving, and independently living capacity) also affords a more focused assessment that targets specific elements of capacity; this latter goal limits the degree of unnecessary restrictedness placed on the individual and also recognizes the diversity of these functional domains and the likelihood of individual variability in performances across these domains. These changes have increased the demand for more comprehensive assessment identifying discrete areas of strengths and weaknesses across each capacity domain.

Clinical Assessment

An approach to clinical assessment is described in the handbook, Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists (ABA-APA Assessment of Capacity in Older Adults Working Group, 2008). Building upon seminal work by Thomas Grisso (Grisso, 2003; Grisso & Appelbaum, 1998), the handbook proposes nine elements in capacity assessment: (1) legal; (2) functional; (3) diagnostic; (4) cognitive; (5) psychiatric/emotional; (6) values; (7) risks; (8) means to enhance capacity; and (9) clinical judgment. The evaluation begins with clarifying which capacity, e.g., medical consent (Marson, Chatterjee, Ingram, & Harrell, 1996), sexual consent (Lichtenberg & Strzepek, 1990), research consent (Dunn, 2006; Palmer et al., 2005), financial (Marson et al., 2000; Marson, Triebel, & Knight, 2012), or driving (Ball et al., 2006; Odenheimer, 1994) consent, is under investigation. With the legal context informing the scope of functional assessment, the diagnostic, cognitive, and psychiatric components are assessed in relation to their impact on function. For example, one assesses how memory impairment affects the functional tasks in financial management. Thus, direct assessment of function is of paramount concern, and requires performance based tasks of functional ability and other relevant informal assessments (e.g., behavioral observations and clinical interview entailing a focus on everyday functional skills, knowledge, and judgment/decision making strategies). These elements must be considered in the context of the person’s values (Fried & Bradley, 2003; Karel, 2000), the risks facing the individual and the imminence of such risks (Ruchinskas, 2005), and the extent to which disabilities (and resulting incapacity) may be mitigated by interventions. The latter notes that an individual’s capacity can be remediated and is not necessarily a static phenomenon; examples may include cases of acute psychiatric decompensation or reversible dementia.

The ultimate conclusion of a capacity assessment is a clinical judgment – which must typically be concise and definitive. Yet, this judgment is based upon a highly rich and often conflicting set of data consisting of medical record review, patient and collateral interview, direct patient observation, evaluation of psychiatric symptoms, laboratory based testing of cognition and everyday functioning, and consultation with other providers. Despite the presence of this highly detailed and comprehensive array of data, the integrative clinical decision making model preferred for such evaluations can also foster great diagnostic uncertainly as the relative weighting of various factors on the ultimate capacity decision can be unclear.

Scientific considerations influencing practice

The past 20 years have seen a steady growth in capacity research (Moye & Marson, 2007), yet much remains. The clinician should be aware that the ecological validity of many widely utilized cognitive measures remains modest (Spooner & Pachana, 2006). In cases where prediction between neurocognitive domains (particularly executive functioning) and direct laboratory based assessments of capacity has been documented (Mandarelli et al., 2012; Schillerstrom et al., 2013), the validity of such functional measures to predict real world decision making, health, and safety remains under question. The methods by which we might establish a gold standard for everyday, real world functional competence remain an additionally important, albeit currently confounded consideration in approaching assessment (Edelstein, 2000). Furthermore, investigation of the ecological validity of specific laboratory measures tends to vary by population (e.g., Huntington’s disease: (Devos, Nieuwboer, Tant, De Weerdt, & Vandenberghe, 2012); mild cognitive impairment vs. Alzheimer’s disease: (Marson et al., 2009); brain injury: (Triebel et al., 2012); and psychiatric illness: (Mandarelli et al., 2012)), thus preventing a unified analysis of the generalizability of these results. In general, cognitive tests developed with a strong emphasis on ecological validity (known as the verisimilitude approach) are better equipped to more accurately tap everyday functional abilities that may better reflect decision making capacity skills (Spooner & Pachana, 2006). Increasing reliance on real world functional measures as the most direct assessment of function capacity (e.g., in the case of on the road driving tests; Devos et al, 2012) will facilitate focus on identifying the ecological validity of laboratory based measures, and increased confidence in our conclusions regarding decision making capacity may be reached.

At this point, psychologists new to the practice of such assessment may experience discomfort or lack of clarity regarding the importance or weighting of various factors when making such decisions (Ganzini, Volicer, Nelson, & Derse, 2003). And while well-versed in psychodiagnostic assessments, psychologists new to capacity assessments often find themselves in a novel clinical arena where such integrative and heavily weighted conclusions are not so easily established. Nevertheless, with their extensive training in assessment, psychologists have a great deal to contribute to the assessment of this critically important psycholegal construct.

Written by Jessica Foley PhD and Jennifer Moye PhD, VA Boston Healthcare System and Harvard Medical School

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American Bar Association Commission on Law and Aging & American Psychological Association. (2008). Assessment of older adults with diminished capacity: A handbook for psychologists. Washington, DC: American Bar Association and APA. http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

American Psychological Association Task Force to Update the Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline. (2010). Guidelines for the evaluation of dementia and age-related cognitive change. Washington, DC: American Psychological Association. http://www.apa.org/pi/aging/resources/dementia-guidelines.pdf