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When Are You No Longer in Control? Determining Mental Capacity

“He can’t make his own decisions.” “She doesn’t understand what she is doing anymore.” “Don’t ask him, ask me what is going on.” These are examples of common phrases medical professionals hear from well meaning family and friends regarding a person’s ability to make their own decisions. Many people add in that they have “power of attorney” which does allow a person to be directly involved in important life decisions but does not mean that the person lacks the mental capacity to make them without their POA. This is a common misunderstanding and in fact, if you take a parent to an attorney stating you are trying to obtain POA because they lack mental ability you are in the wrong place and it is too late for them to sign it now. There are very strict laws in place to protect the vulnerable nature of this situation and thank goodness we have them. According to the National Council on Aging estimates of elder financial abuse and fraud are likely under-reported but annually found to be between 2.9 and 36.5 billion dollars. Sadly financial exploitation is still self reported at rates higher than sexual, emotional, physical abuse or neglect.

The Mental Capacity Act from 2005 has 5 key principles that must be followed to determine a person’s mental capacity:
● Capacity should always be assumed
● Ability to make a decision should be optimised to allow enough time, interpreters, pictures if necessary
● People are entitled to make unwise decisions, it is the decision making process that is assessed
● Determination should be in the best interest of the person
● Decisions should be the least restrictive options for their basic rights and freedom

There are multiple forms of assessments used in the determination process and the court will use 3 professionals in the area of expertise, ie. geriatrics, psychiatry, and a social worker. This cannot include the family physician. The assessments analyze whether the person had the ability to understand the situation involved in the decision, are they able to retain the information long enough to make a decision, do they understand the consequences of making or not making a decision, and finally are they able to communicate their decision. Medical diagnosis like dementia or traumatic brain injury cannot be the sole reason a determination is made.

Power of attorneys are made to have someone to speak for you if you are unable to speak for yourself OR if a judge has determined you lack mental capacity. Know your rights as a senior and protect yourself from exploitation, just because you appoint someone your POA does not mean that you are no longer capable of making your own decisions!

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