Assessing Assessments of Decision-Making Capacity: A Few Legal Queries and Commentary on “Assessment of Decision-Making Capacity in Older Adults”

THE legal and ethical principle of autonomy is central to the enterprise of making decisions about major life activities, including medical care and the management of one’s financial affairs, in modern American culture. To be truly autonomous, a choice must be made voluntarily, based on sufficient relevant information, and by a capable decision maker. Thus, the ability to accurately assess their decision-making capacity is essential to protecting the rights of capable older people regarding personal and financial integrity while safeguarding those individuals without sufficient self-protective capacity against undue risks of harm stemming from their vulnerabilities. Our ability to separate older persons with severe impediments to autonomous decision making from those who presently are able to make their own choices has always been important in medical and financial affairs, but it grows increasingly so as the movement toward consumer-driven or consumer-directed health care and homeand community-based long-term care pick up momentum. Hence, the productive efforts by Jennifer Moye and Daniel Marson and their respective colleagues to develop better methods for assessing the medical and financial decisionmaking capacity of older adults should be applauded. In their review article in this issue (Moye & Marson, 2006), they articulately summarize the significant progress made recently regarding the validity and reliability of emerging decisionmaking capacity assessment techniques. Certainly, replacing the virtually unguided subjectivity that historically has characterized the process of capacity assessment with, as much as possible, more consistent and objective measures represents progress. Such progress notwithstanding, this legal skeptic will outline four cautions and queries, mainly in the form of suggestions for further research by Moye, Marson, and other investigators in this sphere. First, it would be useful for researchers to compile data on just how prevalent the problem is in which older adults lack sufficient capacity to make their own medical or financial decisions. Moye and Marson observe that the capacities being assessed in the studies they review, ‘‘although technically legal capacities, are rarely subject to judicial review.’’ In many instances, it probably is desirable from a policy perspective that capacity assessments both take place and are acted on outside of the formal legal system (Kapp, 2002). However, sometimes legal involvement, mainly though the guardianship process, is necessary to adequately protect the interests of the involved parties; therefore, it would be useful to have a better grasp of the prevalence of decisional incapacity so as to gauge how much of a strain really would be placed on the judicial structure were we to encourage medical and financial professionals, as well as older individuals and their families, to initiate more judicial oversight over the determination of decisional incapacity and the aftermath of that determination. Put differently, even if we wanted the courts to be more involved in reviewing the presence or absence of legally pertinent decision-making capacities in older people, would the number of potential legal cases make a more official approach unrealistic? Conversely, is the actual number of significantly incapacitated elders who have failed to execute advance directives so small that greater utilization of the courts is highly feasible? Second, Moye and Marson correctly note that the term capacity generally is employed ‘‘to refer to a dichotomous (yes or no) judgment’’ about an individual’s ability to make a particular kind of choice. The dichotomous approach, embodied in the legal doctrine of informed consent, makes good sense if we assume that, for every decision, there is one and only one decision maker—namely, either the affected, capable individual or a surrogate who has officially or unofficially taken over decision-making authority from the incapable individual about whom decisions need to be made. This is a dubious proposition, though. We should subject to empirical investigation the question of whether most medical and financial decisions involving older persons are made in this fashion, or whether instead a large percentage of these decisions actually are made in an informal, shared way that combines the input of family and friends with that of the individual for whom the decision is being made. Current legal structures do not deal well (particularly in the medical arena) with the model of decision making as a shared enterprise rather than one dependent on a single, lone decision maker; if the shared decision-making model often reflects reality, however, then capacity assessment researchers will need to develop tools to determine when an older person is Journal of Gerontology: PSYCHOLOGICAL SCIENCES Copyright 2007 by The Gerontological Society of America 2007, Vol. 62B, No. 1, P12–P13