fundamentals
Capacity to Make Health Care Decisions
Legal incapacity (or incompetency)
Legal capacity and all the rights that go with it remain in effect until death, unless a court of law has determined a person is legally incapacitated. To establish legal incapacity, a court must determine that a person can no longer manage some or all personal affairs and that court intervention is necessary to protect the person. Doctors cannot determine legal incapacity. The legal proceeding is usually called a guardianship or conservatorship proceeding. Legal requirements for declaring incapacity vary by state. However, the following are typically required: A disabling condition (for example, Intellectual Disability , a mental disorder, A lack of mental (cognitive) ability to receive and evaluate information or to make or communicate decisions An inability to meet essential requirements of physical health, safety, or self-care without protective intervention by someone A finding that guardianship or conservatorship is the only feasible way to protect a person Health care professionals, even if they think the person is incapable of making a decision, cannot override the person’s expressed wishes unless a court declares the person legally incapacitated. However, a doctor can seek a court's ruling regarding a person's legal incapacity, and a doctor may be asked to testify or provide documentation to the court. Today, state laws favor the term “incapacity” rather than “incompetency” and define the term as task-specific—that is, every task requires different capabilities to accomplish. For example, a person may be declared legally incapacitated regarding financial affairs, yet still retain legal capacity to make medical decisions or decisions about where to live. A finding of legal incapacity by a court of law takes away all or part of a person’s right to make decisions. Legal incapacity normally results in the appointment of a guardian or conservator to make either some or all decisions for the person. Increasingly, the least restrictive (most self-reliant) alternative requirement for legal capacity includes consideration of technological assistance or supported decision-making. Technology may help people retain some degree of autonomy (for example, by wearing personal emergency response systems, medical monitors that signal a need for action, or automated medication reminders). Also, at least 20 states recognize formal supported decision-making (SDM) agreements, an alternative to legal guardianship or conservatorship, that allow people with disabilities to keep their rights and their decision-making capacity with support from trusted advisors, such as friends, family, or professionals. SDM agreements should define the elements of a supportive relationship and clearly recognize that the person being supported remains the decision-maker. (SeeCenter for Public Representation: Supported Decision-MakingandNational Resource Center for Supported Decision-Making.) 