• Capacity/Competency
– Legal, clinical, ethical and social construct
– Ability of an individual to make autonomous choices
– Task specific
– May vary over time
– Not diagnosis dependent
– Culturally mediated

• Judged to be making unwise decisions
• At risk of harm
• Vulnerable to undue influence/exploitation
• Impaired ability to communicate
• Disorder of brain or mind which it is suspected will impair decision making abilities (not just dementia: depression psychosis mania intellectual disability)

• Appelbaum and Grisso
– 1)ability to express choice
– 2)ability to understand relevant information
– 3)ability to appreciate the significance of information for one’s own situation
– 4)ability to reason with relevant information so as to engage in a logical process of weighing options
– Appelbaum TS, Grisso P. N Engl J Med 1988: 319; 1635-38

• know the context of the decision at hand
• know the choices available
• appreciate the consequences of specific choices
• is consistent in their decisions
• can communicate their decisions

• A person is assumed competent until proven otherwise
• The autonomy of a competent person must be respected
• Presumption of competence in respecting autonomy.

• Thresholds for competency should vary based on the nature of the decision and the likelihood and magnitude of the consequences
• Consequences of missing incapacity in a patient making a risky decision may be particularly severe
Patient’s decision Risk / benefit ratio of treatment
Favourable Unfavourable
Consent
Refusal
Low test of competence
High test of competence
High test of competence
Low test of competence

(Shulman 2007)

• Helps people who have lost the capacity to make or understand decisions about their own personal affairs or property, or who can no longer tell other people what they’ve decided.
• Enduring Powers of Attorney
• Property Managers
• Welfare Guardians
• Personal Orders

• (a) To make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person's incapacity:
• (b) To enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible.

• Duties and responsibilities of welfare guardians / property managers /attorneys
– To act in the subject persons best interests
– Allow subject person to exercise capacity to the greatest extent capable
– To act in good faith and with due care
– Liability
– Reporting requirements
– Integrate into the community as much as possible
– Consult with the person

• Section 10 (1) personal orders of specific types
(including)
– enter,attend or leave an institution (other than a psychiatric hospital
– be provided with living arrangements specified
– be provided with medical advice or treatment
– educational, rehabilitative or therapeutic or other services

• that a person shall not leave the country
• administer property – less than $5000

• (2) A Court shall not make an order under subsection (1) of this section unless it is satisfied—
• (a) That the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and
• (b) That the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person.
• Only one person can be appointed

• Legal instrument appointing person to make decisions on the donor’s behalf
• Must be made on prescribed form
• Formal witnessing procedure including requirement to assess donor’s capacity to appoint attorney.
• Must be signed by the attorney
• May specifiy when activated ( property)
• Specifies type of person to evaluate mental capacity

• For welfare can be only one person but may specify who can take over
• For property can be more that one person
• Requirements to act in the person’s best interests
• Requirements to encourage donor to develop and exercise capacity

• For welfare requires health practitioner report of incapacity for acting on “significant matters”
• Reasonable grounds for believing incapable on
“other matters”
• For property, can become active before a person loses capacity or when they are only partially incapable

• A legal document which appoints someone to make decisions for them
• 2 kinds of EPOA/ separate documents
• How many attorneys?
• What kinds of decisions are covered?
• When it is activated ( when is it likely to be activated); when it can be revoked?
• Who is the proposed attorney and reasons for choosing that person vs others?

• Banks and Goodfellow Criteria:
– Nature of a will
– Nature and extent of assets
– Natural beneficiaries
– Impact of distribution of assets
– Confirmation that the testator is free from delusions influencing distribution of assets
– Ability to express wishes clearly and consistently in an orderly plan of disposition

• Be clear of your mandate to assess
– reasonable grounds for believing that an assessment is required / sought, application being made
– More stringent and ideal is letter of instruction from solicitor or court
– Why has the issue of competence arisen at this time?
• Who is instructing you to prepare the report?
– The subject person’s solicitor
– The applicant

• Be clear what aspect(s) of competency you are assessing
– What is the decision that the person needs to make?
– Eg appointing an EPA, medical treatment , living circumstances, finances, testamentary capacity
• Gather necessary background information from available sources including family /experts
– Includes details of medical procedure/ property/evidence of impaired self care or decision making/ inconsistency
– This will also require consideration of confidentiality

• Consent
– including intention to submit report to the court, and potential consequences
– Inform of intent to gather additional information
• Usual clinical history and examination PLUS specific assessment re competency
• To make autonomous decisions the person needs:
– Sufficient information to make the decision
– The ability to make the decision free of coercion
– Mental capacity to make the decision

• Ask what the person knows about the situation /decision/ consequences without giving any information
• Provide information required in uninterrupted form and ask respondent to paraphrase
• Element disclosure and asking the person to paraphrase

• If failure of spontaneous understanding is this due to
– a lack of information
– inability to retain and use information
• Has implications for ongoing unsupported decision making capacity
• Is this a one-off decision, or one that needs to be made repeatedly, without decision support.

• Does the person see the relevance of the information for themselves
• Does their understanding of risks and benefits of each option concur with the assessment of others / experts
• If the information is felt not to apply to their situation is the reasoning logical
– Need to understand the reasoning behind an idiosyncratic view
• Can the person give a logical explanation for the expressed choice

• Dispositional Autonomy
– In the absence of the ability to demonstrate logical reasoning behind the decision is this consistent with the persons choices through life?
Check with relatives / caregivers
• Consistency of decision making is important
– What is the person likely to decide /do without you walking them through the decision?

– Best time of day and setting
– Supports / absence of influence
– Provision of information required to make the decision
– Including choices, risks, benefits, likely consequences
– Provision in form(s) for optimal comprehension
– Communication aids
– Simple chunks of information in logical sequence
– Checking comprehension and reasoning at each step

• Consider when:
– Vulnerability: Anxiety, personality factors, cognitive
(memory or executive function)
– Evidence of a pathological or dependent relationship with caregiver: Coercion, threat to abandon/neglect, lies leading to negative feelings
– Opportunity to influence testamentary act
– Choices result advantage to one person over self or involved others
– Attempts to control access by others / assessor
– True wishes of testator not reflected in will

• http://www.legislation.govt.nz/regulation/pu blic/2008/0310/latest/DLM1597901.html
• http://www.justice.govt.nz/courts/familycourt/documents/pdf-pamphlets/Courts-
044.pdf