Dr. John Sloan has been a family physician with a specialty in working with the elderly for many years. A few years ago, he made a bold decision to change the way he practiced. He closed his office, and established a unique approach to working with his older clients—he goes to them. Dr. Sloan also does medical mental capabiltiy evaluations. This is what he says about them:
Who needs medical mental capability evaluation?
Just about everybody occasionally needs to make important commitments based on an understanding of what is going on. Someone who doesn’t understand what they are doing when they pay their bills (or not), make a will, sell their house, or get married can make serious mistakes or get taken advantage of. When there is a question about this kind of capability, mental capability evaluation is useful. So what is “capable”?
Legally, I’m told the basis for entering into most legal agreements is understanding what the agreement is, and what it does: its “nature and effect”. Most jurisdictions also have legislation covering “guardianship”; that is, circumstances under which people who are unable to make decisions or manage matters for themselves have those decisions and matters looked after for them.
Medically, determining capability for any task is usually not too difficult. One simply asks someone to describe the activity or agreement being contemplated: What is a will? Then one makes sure the person appreciates how the activity or agreement works, and its particular significances: Who might reasonably expect to inherit your money? How much money is there, anyway? And so on.
If the issue is managing one’s money, there is more detail involved in questioning about the particulars. There are questions about sources of income and amounts. One asks about what expenses someone has, what bills they are paying, what it costs to run their home.
When mental capability evaluation gets more difficult, it is usually because of one of three circumstances: 1) close calls, 2) problems with insight and judgment, and 3) intermittent incapability. For example:
A close call may involve for example an elderly lady who has always relied completely on her now-deceased husband to manage the finances. She has some memory impairment, but maintains a reasonably good grasp of the idea that a Trust Company can manage things for her, the trust officer’s name (and why she trusts him), and generally how much money there is, and how much she needs to live. Is she capable?
Many people when they develop dementia or related brain problems lose the ability to understand broad concepts, and to recognize reliable “gut feelings” that often govern our important difficult decisions. In some cases, short-term memory is preserved, and a person can give a pretty accurate account of their net worth, income, expenses, and so forth. But in the last three months they have failed to pay their bills, given away a couple of unusually large amounts of money, and bought an expensive item they can never use. Capable or not?
Sometimes capability is situational and a broader picture must be considered. There are people who are capable sober but incapable drunk. How much are they drinking and can it be controlled? Some people are capable on medication and incapable off (or vice versa). Do they take their medication reliably enough to be able to make decisions. Some people are capable as long as their blood sugar is normal. Do they follow their diabetic regime well enough to be capable when making decisions about their health or finances?
The best advice when you get involved in mental capability issues, is get good advice! Good advice will protect you whether you are the person being assessed, a family member who wants to act on someone’s behalf, or someone whose motives and interests are questioned by others. If you are making decisions for yourself, or for someone else, down the road somewhere, there may be questions about your capability for having made a decision, get the advice which will help you in the future.
Good advice usually starts with a lawyer with experience in the field. Lawyers organize the “legal” end: what legislation is involved, and what the “legal test” is. After the lawyer has outlined the legal end, a physician, qualified and experienced at doing the capability evaluation, is brought into the picture. Most of my medical mental capability evaluation work has to do with the Patients Property Act in British Columbia. This involves decisions about establishing a committeeship of person or finances, when someone legally takes over the responsibility for someone else’s finances or personal care because that other person is not capable or competent to make the decisions. I am also involved in assessing for testamentary capacity (can someone make a will or not?), and capability to instruct the lawyer for various kinds of contracts.
Dr. Sloan can be reached through his pager at 604-680-7838, or by email: tosloan@shaw.ca
