Article on Estate Planning Tools That Protect People With Declining Capacity
Ms. Jones, aseventy-five-year-old widow, lives independently in a home located in a retirementcommunity. Her neighbors watch over her by stopping in from time to time, oftenbringing groceries and cooking meals. A neurologist diagnosed Ms. Jones withamnestic mild cognitive impairment three years ago, shortly after her husbandpassed away. Her physicians believe her impairment is of the Alzheimer’s typeand she will likely progress to dementia. She has two daughters and a son. Herdaughters live out-of-state and visit regularly around the holidays and forspecial events. Her son lives thirty-five minutes away and comes to see heronce a week. Recently, Ms. Jones began demonstrating apathy towards previouslyenjoyed hobbies and regularly complains of forgetting parts of books she hasread or movies she has seen. During a recent visit, her son inquired about banknotices on the kitchen table. Ms. Jones calmly explained that her account wasoverdrawn and that it was a “silly mistake.” Her son is concerned that she mayno longer have the capacity to manage her own finances. Yet, only Ms. Jones hasaccess to her bank accounts, opened when her husband was alive. This preventsher son from reviewing bank records without her approval, which she refuses toprovide. He struggles to determine whether to pursue legal actions. Because shehas been able to get by thus far, he is reluctant to take away her freedomthrough a guardianship before it is necessary.
An aging society in the United States will place an increased burden onfamilies, probate courts, and others to manage societal and personalchallenges. Current estimates approximate that the population over sixty-fiveyears of age will increase from 40 million in 2010 to 72.1 million by 2030. As society ages, the number of elderly with cognitivedeficits will also increase. While cognitive decline is commonly associated with normalaging, an additional subset of the population experiences an increased burdenof cognitive and functional deficits resulting from neurodegenerativeconditions. Age-associated neurodegenerative diseases include Alzheimer’s disease, Parkinson’sdisease, and multiple classes of dementia. While similar cognitive decline may be associated with ““normalaging,” those that suffer from neurodegenerative conditions will experiencesignificant impairments that heighten the types and frequency of challengesexperienced by the individual and family. Attributes of neurodegenerativeconditions, like Alzheimer’s, challenge caregivers and family members toaddress concerns relevant to the patient’s day-to-day living needs. Ms. Jonesmay be experiencing a decline in her executive functions and memory. Thesedeclines may cause her to forget that she made a specific purchase or causechallenges with balancing a budget. These progressive deficits will challengeher son, as well as her daughters, to address how to effectively help hermanage finances and other daily tasks without prematurely restricting herautonomy. Individuals with cognitive deficits are at an increased risk oflacking capacity in one or more contexts (e.g., medical consent, financialmanagement, and living independently). Family members who are unable to assistloved ones with these tasks through informal interventions often look toclinicians and the legal system for guidance.
The guardianship and probate system provides legal protections for thoseincapable of managing their own person or affairs. A legal determination ofincompetency is a prerequisite to a judicial order appointing a guardianship orother protective mechanism. The significance of incompetency determinations challengesprobate courts to balance an individual’s autonomy with necessary protectivemeasures. Autonomy, an individual’s right to control her decisions and actions,requires that others respect her decisions or actions. For example, a healthcare provider must respect anindividual’s request to refuse treatment. A legal determination of incompetence removes anindividual’s legal authority to manage her own affairs and has broadimplications for her daily interactions and activities. The right extends to those decisions that are objectivelyrisky or dangerous. Nevertheless, when an individual lacks capacity or a courtdeclares her incompetent, her decision-making authority may be restricted.
The dynamic relationship between competency and capacity are at thecornerstone of a state’s parens patriae right to limit autonomy. Thoughoften used interchangeably, capacity and competency reside in two differentcontexts. A judicial body, usually a probate court, determines whether a personis legally incompetent. In contrast, clinicians–physicians, psychiatrists, orother experts–determine whether an individual has decision-making capacity. Yet, determinations of incapacity and incompetence resultin similar restrictions of an individual’s autonomous decision-making authority. Standards for capacity and competency determinations areinterrelated. Judicial decisions and statutory language inform clinicalcapacity criteria and assessments. Similarly, judicial and legal standards are derived fromclinical capacity criteria and clinically based research. Despite the interrelated attributes of competency andcapacity, these concepts adhere to different structures. Capacity is acontinuum and is context-specific. Conversely, most state laws define competence withoutproviding for an intermediate determination that allows for gradation. Instead, competency is determined largely through a globalstructure. Under this structure, an individual is declared eithercompetent or incompetent. The complicated dynamic between competence and capacityleaves judges to determine where along the capacity continuum an individualbecomes incompetent.
The current legal-medical model for competency determinations fails toaccurately reflect the complexities of declining capacity in an agingpopulation. A global structure for competency determinations leaves a criticalgap between competent and incompetent. This not only raises concerns about howto classify those that fall between the two, but also highlights the lack oflegal protections for those within the gap. Ultimately, it limits protectionsavailable to individuals who do not yet meet the threshold for incompetency.This leaves family members and caregivers with more questions than answers:When do I intervene? Who will serve as a guardian if my siblings live out ofstate? Where will my mother live? Who will manage her finances? Who will makemedical decisions? Ultimately, family members, like Ms. Jones’s son, are leftwith the burden of protecting their loved one from potential risks related tocognitive and functional impairments.
A revised model is needed to provide protections to individuals who donot yet meet the threshold for incompetence but require additional protectionsfor their personal or financial welfare. The cyclical relationship between lawand medicine demands convergent approaches to evaluating an individual’sabilities to engage in financial, medical, and other critical decision-makingprocesses. A revised legal model will include additional legal mechanisms thatprovide protective measures tailored towards individuals’ deficits. ThisArticle provides an unprecedented examination of the legal model fordetermining competence through a comparison of the medical model for evaluatingcapacity. While a number of legal scholars have examined the appointment andoversight of guardians, few have critically examined the process by whichindividuals are declared incompetent. This Article presents a comprehensiveoverview of competency and clinical capacity determination procedures, legalmechanisms available to protect individuals with declining capacity, and policyrecommendations for improving legal protections in light of inefficienciesrelated to legal competency determinations.
Part II provides anoverview of the medical model for determining capacity, providing a basis forassessing the effectiveness of the legal model for competency determinations. Part III criticallyexamines the current legal approach for competency determinations andprotective mechanism orders. Through an overview of the current structure,flaws in the current approach are illustrated. Specifically, the currentjudicial process of declaring incompetency fails to provide a balance betweenautonomy and needed protections. Finally, Part IV discusses two recommendationsto address faults in the current system: (1) judicial determinations ofincompetence should adopt a gradient structure that reflects the realities ofcapacity; and (2) legal protections should be implemented and improved thatapply to those who fall in the gap between incompetent and competent, such aslimited guardianships. These recommendations seek to create a more effectivesystem that provides needed protections, prevents overly restrictive measures,and provides families and caregivers mechanisms to intervene when necessary.