Legal Issues Arising in the Process of Determining Decisional Capacity in Older Persons

There is an increasing incidence of dementia, depression and other affective disorders, delirium, and other mental health problems such as psychoses among older individuals in the United States. Because the severity of mental illness, in terms of cognitive and behavioral impairment and therefore the illness' impact on functional ability, varies for different patients at different times along a continuum, there is not an automatic correlation between an older person's clinical diagnosis and a dichotomous determination that the individual does or does not possess sufficient present capacity to personally make various sorts of fundamental life decisions. Decisional capacity assessment in the aged carries important implications both for the official adjudication of legal competence and for patient/client management in the vast majority of cases involving "bumbling through." There exists many salient, but generally overlooked, legal and ethical concerns immersed in the health care or human services provider's attempt to evaluate the decisional capacity of a particular older patient/client. This article surveys the most important of those concerns, which arise before we ever get to the point of applying assessment data to the relevant legal and ethical standards of decisional capacity.