What is Decision-Making Capacity?
Decision making capacity refers to an individual’s ability to process the information surrounding important personal decisions.
The Adult Guardianship and Trusteeship Act defines capacity as:
The ability to understand the information that is relevant to a decision and to appreciate the reasonably foreseeable consequences of a decision, and a failure to make a decision.
The ability to weigh the costs, benefits, and consequences of a decision is a component of the brain’s executive functioning: the cognitive processes that guide a person’s emotions, reasoning, and judgement. Disruptions in such abilities can arise in a variety of situations, some of which include:
- When an individual suffers a severe brain injury;
- When an individual is born with, or develops, a deficit in intellectual capabilities; or
- When due to the aging process, dementia, or Alzheimer’s Disease, a person suffers a deterioration of mental functioning.
Why Does Decision-Making Capacity Matter?
When a person does not have decision making capacity, legal measures may be implemented to protect that person’s interests. Determining the appropriate steps depends on the circumstances of the individual, and the extent to which their decision-making capacity is affected.
When there is concern over a person’s capacity, proactive steps can be taken to protect that person’s interests. For a person who lacks the capacity to handle their finances, a trustee may be appointed. For a person who lacks the capacity to make decisions involving personal health matters, where they live, or who they associate with, a guardian may be appointed. For an individual with reduced capacity that is nearing the end of their life, appointing a power of attorney may be necessary.
Additionally, if a person makes an important decision when they do not have the necessary decision-making capacity to do so, that decision may be challenged on the basis that the person did not understand the nature of their actions. This is an issue which often comes up in the context of a person selling property or making changes to their will. If the individual did not have capacity at the time of their decision, it can be ruled invalid or reversed.
How is Decision-Making Capacity Determined?
In order to formally evaluate an individual’s capacity level, and as a prerequisite to implementing any of the legal steps mentioned above, that individual must undergo a capacity assessment. Capacity assessments are typically performed by physicians or psychologists, though other healthcare and social workers such as nurses and occupational therapists can be trained to perform them as well. Once completed, the capacity assessment will identify whether the individual has capacity, as well as what aspects of their decision making may require assistance, and if their decision-making capacity is likely to change or remain stable. As capacity levels are fluid, capacity assessments may be required on a periodic basis.
If you are concerned about the decision-making capacity of someone close to you, please reach out to a lawyer at Weir Bowen LLP to discuss what steps may be taken to protect that person’s interests.
by Mark Miller