Evidence-Based Reviews

Evaluating older adults’ capacity and need for guardianship

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Although forensic psychiatrists typically are consulted in complex legal matters, geriatric, consultation-liaison, and general psychiatrists are on the front lines of assessing capacity to give informed consent and need for guardianship. Psychiatrists often find such consultations daunting because residency training usually includes little to no formal training in performing psycho-legal assessments. Evaluating issues such as decision-making capacity, guardianship, and capacity to give informed consent requires a delicate balance between autonomy and beneficence. This article reviews 4 common legal issues in geriatric consultation—capacity evaluations, informed consent, guardianship, and elder abuse—and suggests a systematic approach to psycho-legal consultations in older adults.

Confidentiality and dual agency

Every psychiatrist should be familiar with basic principles of medical ethics as well as key aspects of local mental health law. Relevant ethical principles include autonomy, beneficence, confidentiality, and dual agency. A review of all these ethical issues is beyond the scope of this article, so here I highlight confidentiality and dual agency.

Confidentiality—the clinician’s obligation not to disclose private medical information—is a legal as well as an ethical requirement. A psychiatrist who performs a psycho-legal evaluation must disclose to the patient the purpose of the evaluation, that a report will be prepared, and to whom it will be submitted. Exceptions to confidentiality include medical emergencies, mandatory reporting of abuse and infectious diseases, and the duty to protect (warning police and the intended victim when a patient makes a threat).

Dual agency or dual role refers to serving as both a treating physician and a forensic evaluator. Although it is ideal to avoid serving in a dual role, sometimes it is impractical or impossible to avoid doing so, such as in guardianship or civil commitment evaluations, or in state forensic hospitals. In such cases, the psychiatrist must be aware of potential conflicts between clinical and forensic evaluations. A treating psychiatrist primarily serves his or her patient’s best interest, whereas a forensic psychiatrist primarily seeks truth.1 A treating psychiatrist is at risk of consciously or unconsciously biasing his or her psycho-legal evaluation in favor of or against the patient/litigant, depending upon the psychiatrist’s countertransference. Further, performing a psycho-legal evaluation can cause problems in ongoing treatment. A psychiatrist who testifies that his or her fiercely independent patient needs a guardian or nursing home placement will experience significant challenges in continuing to work with that patient.

4 common issues for older adults

Decision-making capacity. Although “capacity” and “competence” often are used interchangeably, “capacity” broadly refers to the ability to perform a specific task, whereas “competence” refers to the legally defined standard for performing a specific task such as making a will. “Competence” is legally determined, whereas “capacity” may be determined clinically.

Capacity usually is task-specific rather than a general construct. The existence of physical or mental illness per se does not mean that a patient lacks capacity. Rather, capacity is determined by whether an individual has specific abilities, regardless of diagnosis. Specific capacities include the ability to give informed consent, manage finances, make a will, or enter into contracts (Table 1).2-4 Appelbaum and Gutheil describe 4 components for assessing specific capacity:

  • communication of a choice
  • factual understanding of the issues
  • appreciation of the situation and its consequences
  • rational manipulation of information.5,6

Table 1

Criteria of 3 specific capacities

Capacity to give informed consentUnderstand nature of illness and treatment
Understand risks and benefits of treatment
Understand treatment alternatives
Understand risk of refusing treatment
Testamentary capacityUnderstand that he/she is making a will
Know the nature and extent of their property
Understand the “natural objects” of their bounty and their claims upon them
Contractual capacityUnderstand the transaction
Act in a reasonable manner
Source: References 2-4

Ability to communicate a choice refers to a patient’s ability to express his or her wishes in a reasonably stable manner. Factual understanding of the issues refers to an individual’s ability to understand the relevant facts before making a decision. Appreciation of the situation and its consequences refers to a person’s ability to rationally understand the effect of decisions. Appreciation is a higher level of understanding than mere factual understanding—eg, a delusional patient who believes himself immortal may intellectually understand that a surgical procedure carries a 50% mortality risk, but may be unable to appreciate the information as it relates to him because he believes he is immortal. Rational manipulation of information refers to a patient’s reasoning process and how the patient integrates data into his or her decision-making process.5


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