Capacity Determinations –
Zealous Advocacy vs. Best
Interests Standards
Anthony Chicotel
California Advocates for Nursing Home
Reform
650 Harrison St., Second Floor
San Francisco, CA 94107
Tel: (415) 974-5171
tony@canhr.org
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Important Biographical
Information
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Real life example
1. Conservatee with no real capacity to make
rational decisions;
2. Seeks to fight against a conservatorship
3. No real chance of success.
Should his attorney follow the guidance of his
client at all costs or attempt to insert his own
judgment about what should happen?
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Let’s Define Some Terms
Substituted Judgment
 Best Interests
 Zealous Advocacy

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The Easy Cases
Client 1: Mentally sharp, full capacity to
make decisions

We defer on all decisions (so long as they do
not affect others’ rights) – i.e., we’ll allow you
to make bad decisions.
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The Easy Cases
Client 2: Irreversibly comatose, no known
prior preferences

We make all decisions and since substituted
judgment is not available, we must use a
best interests standard
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The Not So Easy Cases
Client 3: Moderate dementia, no written
directives, gets angry when mental ability is
questioned.
What decisions do we allow, what decisions
do we make?
 The answer: it depends!

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Capacity
Dictionary def. talks about ability to hold
 Latin “capere”: to seize, take, or take in
 Elder practice focus is on understanding
risks, benefits, and alternatives to a
decision

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Capacity - Who’s Asking?
Capacity is not Binary nor Permanent,
there are gradations and fluidity
 Capacity as Incalculable Permutations

• Pick a tv show? Buy a shirt?
• Sell the house? Get married?
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Capacity Determination
Elements
Diagnosis
 Functional abilities: regulate mood and
affect, executive tasks, memory, etc.
 Communication ability
 Reasoning
 Avoid undue influence?
 Anecdotes

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Even the Experts Don’t Agree


Marson, Daniel C., Journal of the American
Geriatric Society (April 1997): 5 docs with extensive
experience in assessing dementia were asked to
determine capacity for 29 A.D. patients. The docs
had 56% agreement. The results were deemed
“alarming,” proving physician competency
assessment is “subjective,” “inconsistent,” and
“idiosyncratic.” The use of a specific definition of
capacity improved physician agreement (76%).
A doctor’s declaration of incapacity is evidence of
incapacity but not legally conclusive.
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Capacity ≠ Competency
Competency connotes judicial
determination.
 A determination of incompetency divests
the principal from making decisions,
vesting decision-making to a third person.
 Effect on Rights is the Key.

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The Tension for Practitioners
Client #3, questionable capacity, making
bad decisions, what do you do?
Zealous Advocacy – get them what they
want, autonomy first, trust the system will
give right result.
Best Interests – get them what they need,
safety first, the system might fail and bad
things result.
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Taking Sides

Zealous Advocate





who are we to judge (and impose) right and wrong?
Autonomy – this is America dammit
If we oppose clients, we won’t have clients
If we’re good advocates, we can convince and don’t
have to force
Best Interests



Don’t we do what we do to help people?
Interventions can be precise, least intrusive
Being a good human being should trump being a
good professional
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Safety v. Autonomy
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Professional Ethics Guidance
Attorneys:
duty of confidentiality, loyalty, zealous
advocacy
 But, Model Rule 1.14

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Model Rule 1.14
(b) When the lawyer reasonably believes
that the client has diminished capacity, is at
risk of substantial physical, financial or
other harm . . . the lawyer may take
protective action . . . and, in appropriate
cases, seeking the appointment of a
guardian ad litem or conservator.
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Professional Ethics Guidance
Social Workers (NASW):


promote the well-being of clients
In general, clients’ interests are primary but
social workers’ responsibility to society legal
obligations (mandated reporting) may on
limited occasions supersede the loyalty
owed clients. Clients should be so advised.
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Professional Ethics Guidance
Nurses (ANA)
Right to Self-Determination
 Confidentiality: “not absolute . . . In order to
protect the patient, other innocent parties,
and mandatory disclosure for public health.”

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Case Study #1
John, 84, sent to nursing home postfall/hip fracture
 Lived alone, home shows signs of neglect
– future falls waiting to happen
 Rehab has him walking again, but barely
 John is about to get in a cab to go home.

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Case Study #2
Linda lives at home with no-good son.
 Linda is hospitalized after collapsing –
dehydration, malnutrition, UTI
 She insists on going home, will not
consider home care or reporting son
 Son is not cooperative

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Bottom Line

Be the advocate you would want.

Don’t be afraid to ask.

Sometimes there is no “right” answer – do
what you feel is best.
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Checklist
No way of knowing preferences? Best
interests
 Clear capacity? Zealous advocacy

No one else is threatened
 Defensible use of resources

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Checklist

Questionable capacity? Give client
preferences presumptive weight and only
do otherwise if there is compelling reason.
Professional or legal responsibility
 Serious harm potential
 Waste of resources

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Final Thoughts
Autonomy vs. Safety is perhaps the
greatest ethical challenge for us
 Most cases have relatively easy answers
 Tough cases require lots of thought.

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