Capacity

Ok, this is a bit of a tricky concept to explain.
In this introductory post on capacity, I’ll try to keep the message as light as I can and relevant to dementia too.
Whilst the legislation surrounding the concept of capacity is quite clear, the assessment and interpretation of decision making capacity in real life situations can sometimes be a little unclear.

It’s a concept that is worthy of a discussion though, particularly in a situation where a loved one has dementia and/or delirium.

The legal word on presumption of capacity.

The Powers of Attorney Act 1998, Qld, states that a person is presumed to have decision making capacity unless there is evidence to the contrary.

In essence, a person has capacity to make a decision about a matter if they are able to
• understand the nature and effect of the decision
• freely and voluntarily make that decision
• communicate the decision in some way

A person may have decision making capacity for some decisions but not for others.
Capacity can fluctuate (think about a delirium here).
Poor decision making alone is not evidence of impaired capacity.

Case scenario.

A loved one (say, elderly mum) with a diagnosis of dementia is otherwise living well enough in her own home.
When the daughter visits on Sunday afternoon, she notices her mum is more confused than usual. There are dishes unwashed in the sink and she suspects her mother hasn’t had a shower for a couple of days.
Not sure what is going on she takes mum to the hospital to get her checked out.

As mum is having trouble answering the questions the nurses and doctors are asking (due to her increased confusion), the hospital staff begin to question her daughter about what is going on at home.
The daughter relays that she is concerned about mum’s ability to remain at home, given her increased confusion.
The discussion then steers towards Enduring Power of Attorney, risk, capacity and….you guessed it…nursing home placement.

Stop! Let’s take a closer look!

Mum is otherwise managing ok at home.
Her increased confusion has occurred quickly.
It’s not unlikely mum has developed a delirium (investigations in the Emergency Department reveal a urinary tract infection…there’s your source of the delirium).
Mum’s capacity at this point in time is impaired BUT as the delirium resolves, her ability to make decisions for herself should return.
No health care professional should be assessing a person’s capacity when they are experiencing a delirium!
Discussions and certainly decisions about mum’s future place of residence are not appropriate at this time.

But you are the EPOA!

That may be the case, but an Enduring Power of Attorney cannot be enacted unless a person is thoroughly assessed and deemed not to have capacity…and this takes time…it certainly won’t happen in the Emergency Department.

So…just to recap…decision making capacity is a complex area and one that requires considered assessment and recommendation.

A person who has a diagnosis of dementia is not automatically considered to have impaired decision making capacity.

The enacting of an EPOA takes away an individual’s right to make their own decision and has potentially significant implications for that person’s right to live their life the way they want to.

I write this post in terms of Queensland Acts and Legislation, as that is what I am most familiar with, but the essence of the discussion is similar across other States and Territories too.

Further reading.
Guardianship and Administration Act 2000, Qld
EPOA