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Determination of Decision-Making Capacity in Older Adults: How Can a Neuropsychologist Help?

Neuropsychologists play a critical role, together with the medical and legal professions, in helping us to understand whether an individual is able to make reasoned medical decisions.  Neuropsychologists also make recommendations that have bearing on disposition planning (can an individual safely live independently, or does s/he require assistance, assisted living, or 24-hour supervision?).  While any licensed physician has an ability to assess a patient’s decisional capacity, there can be cases where objective testing and a thorough integration of different data points may be helpful.  IT is also important to ask other people who knew the patient, “What were they like before and is this a change from what they were like?”  Neuropsychologists provide just this.

The basic assumption in our society is that all adults are capable of making decisions until proven otherwise.  In some instances, however, questions about making reasoned decisions are raised.  As neuropsychologists, requests for our evaluations of decision-making capacity most frequently concern refusal of consent for hospital treatments, removal of life sustaining treatments, and whether someone should live independently or with limited support.  Interestingly, in my practice this has arisen more frequently when a patient disagrees with recommended medical treatment than when a patient assents.  As a system there can be a bias toward assessing capacity when the patient acts contrary to our opinions.  However, patients have a right to make a choice contrary to our right decision if it is reasoned and informed.  Nonetheless, if a patient agrees to proceed but appears demented or to have difficulty appreciating or forming a reasoned decision, an evaluation should still be considered.

There is a difference between competency and capacity, which should be considered in view of these cases.  Competency is a legal standard that is determined by a judge, and defined by state statute.  Capacity is a person’s ability to perform certain tasks or make specific decisions; but, sometimes the judge will say “This person is incapacitated” after judicial determination.

There are different types of capacities.  These include contractual capacity (to enter into a contract), testamentary capacity (the ability to make a will, capacity to dispose of assets in an estate plan).  For testamentary capacity, a person needs to have a general knowledge of the provisions of a will, the nature and extent of their assets, their natural object of bounty (those who may inherit money or closest family members).  Another type of capacity is whether the individual has the capacity to enter into intimate relationships. In these cases, it is important to rule out undue influence.  Neuropsychologists, though, can discuss how susceptible a person might be to undue influence.

Capacity is not “all or nothing.”  A person may have diminished capacity in one area (finances) but not another (medical decision making).  Decision-making capacity may fluctuate, and cannot be presumed.  For example, a person may have a lucid moment.  Dementia does not equal incapacity.  Mental illness does not equal incapacity.  Old age does not equal incapacity.

An examination of capacity takes into account the legal standard, and the patient’s functioning.  The patient’s values and preferences are also considered, as well as whether what the patient is wanting now is consistent with what they wanted historically.  Is the patient able to:

  • Communicate a choice?
  • Understand and comprehend the choices available, and the consequences of each choice?
  • Acknowledge the illness or situation?
  • Respond as to how they reached their decision

The capacity evaluation represents a balancing act between promotion of autonomy of older adults, and promotion of safety.  The annual meeting of the American Psychological Association (2015) highlighted several important points about this sub-field in neuropsychology:

  1. Assessment of capacity is a collaborative endeavor, involving legal and medical professionals
  2. Capacity assessments are becoming more “in demand”
  3. Prediction of day to day functioning can be complicated, and multiple measures/methods should be used

Assessment of decision-making capacity within the civil court system is a fascinating area of practice and neuropsychologists provide important data that is critical in understanding potential for return to work/school, financial well-being, and the patient’s wishes vs. best interest of the patient.

About the Author:

Dr. Messler is a board certified clinical neuropsychologist and licensed psychologist who has provided thousands of evaluations where the question of traumatic brain injury was raised. She has also served as expert consultant and witness. She believes it is critical to provide an objective, scientifically defensible opinion, and to help the jury and court understand the implications of the neuropsychological aspects of cases before them. As a prior active duty neuropsychologist, she has extensive experience in the area of military forensic neuropsychology.