The Challenges Presented by the Assessment of Legal Capacity

Abstract

Incidents of mentally disabling conditions are increasing exponentially and populations worldwide are ageing. More and more people are considering available options to plan for the future, a future in which they may no longer be able to make their own, legally recognised decisions. One tactic to accomplish this is through estate planning, particularly wills and enduring documents. The effect, however, of both the ageing population and the rising numbers of conditions impacting capacity is that the number of assessments conducted in the testamentary and substitute decision-making context are likewise swelling. Although the determination of capacity is ultimately a legal decision, the complexity of mentally disabling conditions necessitates collaboration with health professionals to accurately assess capacity. The challenge arises when there is a lack of communication resulting in misunderstandings around the nature of the cognitive assessment to be conducted within the specific legal framework. This impacts not only the individual whose capacity is being assessed, but also the legal and health professionals involved in the assessments, especially as professional liability concerns grow. Inherently linked to the question of satisfactory assessments is the fundamental issue of cost. This chapter discusses the challenges confronting consistent and accurate capacity assessments, including an exploration of the medico-legal interface, but also the essential role of families and society. Understanding the difficulties facing those involved with assessing capacity will assist in progressing the discussion around developing a best practice methodology in an attempt to attain the elusive balance between autonomy and protection of the vulnerable.