Recognising older peoples capacity

Capacity of the client

The rights of older people must be respected. All adults are considered competent to make informed decisions unless proven otherwise. People also have the right to make poor decisions, even in situations of abuse.

Capacity is a legal construct, not a medical diagnosis, and it is difficult for a practitioner to determine if a person has capacity. The tests for capacity vary according to the type of decision being addressed, and also vary throughout Australia’s States and Territories.

As a professional practitioner you may, however, make an initial assessment of a client by looking for warning signs, using basic questioning and observation. If doubt exists, you may recommend a clinical consultation or formal capacity evaluation by a qualified person, such as a psychiatrist, geriatrician or neuropsychologist.

Capacity

A person with capacity can:

• Understand information
  Do they understand key terms? Do they understand the nature and effect of any important documents? Are they able to engage in discussion with you about the information you are providing, about the advantages and disadvantages, about the options?
  
  
• Retain information
  Can they remember all the recent personal, family and financial matters that are relevant to this decision? Is their rationale for their decision consistent or stable over time?
  
  
• Believe information
  Do they seem to believe or accept the information you have given them, such as the value of assets, options, advantages and disadvantages and possible outcomes? Are they making decisions based on potentially paranoid ideas or false information?
  
  
• Evaluate, process and assess information
  Can they demonstrate that they have considered their options or thought about their decision? Do they seem to be listening and taking time to process new information you provide? Does their decision-making seem impulsive, flippant, poorly considered or easily influenced by you or others?
  
  
• Communicate information
  Can your client explain in their own words what you have told them, rather than answering "yes" or "no" to your questions? Do their explanations include important and relevant information? Do they ask questions? Have they shown that they are thinking about how your advice applies to them and their personal and financial situation?

Incapacity

If a person has a disability or medical condition that does not necessarily mean that they lack decision making capacity. A medical diagnosis of Alzheimer's disease or other dementia or other cognitive disability does not automatically mean that a person is unable to make their own decisions. Whether or not a person has the capacity to make a decision on a particular matter requires examination by a qualified specialist.

An individual does not have to prove that they have capacity to make a decision. There may be indicators of incapacity and, if so it’s appropriate to recommend an assessment by a medical expert.

Some indicators of capacity:

• You have explained to your client the issues, but they still do not know or understand.
• You have explained to your client the approaches available, but they still do not know or understand.
• They are unable to appreciate the reasonably foreseeable consequences of their choices.
• If their decisions are based on delusional constructs and cognitive impairment is present only then, it can be said they lack capacity.

Lack of capacity may be intermittent. Lack of capacity may also be due to:

• stress
• a move to an unfamiliar environment
• infections
• hearing and sight difficulties
• educational level
• language and cultural barriers.

If the lack of capacity is due to any of the above rasons, you may be able to establish capacity through finding a better time, place or way to communicate.

Indicators of lack of capacity

The following factors, if present, may indicate a lack of capacity. In these cases, you need to be alert and frame your advice accordingly:

• Poor concentration: limited ability to interact with practitioner or to repeat advice and ask key questions
  Your client appears overwhelmed or frequently changes topics during the conversation, going off on tangents or being flippant. You may also sense they are only taking in the gist of what you are saying, not the details
  
  
• Difficulty with recall or memory loss
  Your client does not remember important details about their personal or family history, their past or current financial situation, what and when any previous documents were signed.
  
  
• Ongoing difficulty with communications
  Your client is not explaining themselves or their reasoning well to you; they struggle to recall important words; they say very little or do not seem to understand many terms you are using despite your attempts to clarify and use simple language.
  
  
• Lack of mental flexibility
  Your client is not open to hearing about other options or potential risks. They may inadvertently return to the same topic of conversation several times.
  
  
• Poor insight or judgement
  Your client clearly lacks insight or judgment about the risk they are potentially placing themselves in, how vulnerable they are or what the value of their assets currently are.
  
  
• Problems with simple calculations that they did not have previously
  This might be elicited by asking about financial incomings and outgoings, how much they will have left in the bank after a certain amount had been spent or lent.
  
  
• Sense that "something about the client has changed"
  This could be a deterioration in their personal presentation, isolation, mood or social withdrawal. The client could be overly anxious or presenting with a family member or friend when normally they would present alone. Tthis could also be an indication of abuse.