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COGNITIVE COMPETENCE AND
DECISION-MAKING CAPACITY
JULIE B LASKEWICZ B ORON†
This essay is based upon a panel discussion at the 2020 Creighton Law Review Symposium and Tepoel Lecture entitled The 21st Cen- tury Trust: Evolution, Innovation, Adaptation. As the population of the United States shifts, resulting in a larger proportion of individuals living to age 65 and older, ensuring that these individuals are sup- ported in terms of maintaining their decision-making independence when appropriate, is essential. There are normative age-related changes in both cognitive and physical functioning with age, but the impact on an individual’s decision-making is often nonexistent, mini- mal, or temporary. This essay includes information on normative age- related changes in cognition and the relation to capacity and compe- tency. In addition, appropriate considerations for decisional capacity and evaluation of capacity are discussed, along with suggestions to support aging clients.
I. NORMATIVE COGNITIVE CHANGES AND THE IMPACT ON
CAPACITY AND COMPETENCY
As people age, there are normal changes in many different cogni- tive abilities 1 ; some, such as processing speed, attention, and working memory tend to marginally decrease^2 , while other abilities more re- lated to experiences, such as verbal ability, tend to slightly increase or stay the same 3 These differential changes do not tend to negatively impact a person’s ability to function in everyday life and/or make deci- sions—if the cognitive changes experienced are within the realm of what is considered “normal.” In that regard, neither decision-making capacity nor competency should be negatively impacted. However, the distinction between capacity and competence should be clarified.
† Doctoral Program Chair and Associate Gerontology Professor at the University of Nebraska Omaha.
- K. W ARNER SCHAIE, DEVELOPMENTAL INFLUENCES ON ADULT INTELLIGENCE : THE SEATTLE L ONGITUDINAL S TUDY (2d ed. 2012).
- Paul B. Baltes, The Aging Mind: Potential and Limits, 33 GERONTOLOGIST 580 (1993); T.A. Salthouse & E. Ferrer-Caja, What Needs to Be Explained to Account for Age- related Effects on Multiple Cognitive Variables? , 18 PSYCHOL. & AGING 91 (2003).
- Paul B. Baltes, Theoretical Propositions of Life-span Developmental Psychology: On the Dynamics Between Growth and Decline, 23 DEVELOPMENTAL PSYCHOL. 611 (1987); John L. Horn & Scott M. Hofer, Major Abilities and Development in the Adult Period, in INTELLECTUAL D EVELOPMENT 44 (Robert J. Sternberg & Cynthia A. Berg eds., 1992).
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Capacity is a term used in the psychological literature to refer to a person’s capabilities to make his/her own decisions; it is more about the autonomy of the individual. A functional assessment by a clini- cian that has some training in psychology or neuropsychology can be conducted to ensure that the person is capable of making his/her own decisions. This can obviously vary as a function of domain, such as health or financial-related decisions. These two domains are dis- cussed and studied most often due to the relevance for aging individuals.
Competency, on the other hand, is a global assessment; it is not focused solely on decision-making for financial matters or decision- making for health or other domains. It is a global assessment that is a legal determination made by a judge in a court about whether some- one has the mental capacity to decide in accordance with his/her own personal goals, concerns, and values. People are considered legally competent unless demonstrated otherwise by the court. Thus, compe- tency is an absolute yes or no, whereas capacity can vary. This varia- bility can occur over time, and/or as a function of domain, thus, capacity is a more flexible construct compared to competency. How- ever, it is important to note that a person would not be deemed incom- petent if he/she had capacity.
The other issue that makes competency particularly challenging is that it can also be an ethical issue – this is a global determination about whether someone is competent to make decisions for him/her- self. The decision has to be made with caution because, ultimately, it can vary depending upon the context, as is known from research on capacity. However, a competency decision cannot consider different contexts based upon domain or time. It is yes, the person has the abil- ity, or no, the person does not. Because a person’s ability may be fluid, or change over time depending upon the source of the problem, a per- son’s inability may be temporary. This is one of the reasons why mak- ing a permanent legal determination of lack of capacity is difficult. Thus, many legal professionals are left to determine a person’s ability on singular occasions because more often than not, a person will not have lost his/her legal ability to make decisions.
The capacity versus competency distinction is important when- ever a person is either temporarily or possibly permanently incapaci- tated. It is important to keep the person’s best interests in mind in terms of his/her goals, values, and what he/she is striving toward, as well as provide protection from potential abuse. Although, beyond the scope of the present consideration, abuse may occur from others that are interested in what the person may have in terms of his/her es- tates. From a psychological perspective, this capacity versus compe-
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The normal age-related declines that we experience in different types of cognitive abilities is not sufficient to impair our ability to make decisions important to our everyday life and functioning and to live independently. Although there are changes, there are some abili- ties that plateau or even increase, such as crystalized abilities focused on language, comprehension, and experiences. Although decline oc- curs in some types of abilities, other abilities are retained or even in- crease, which can serve a compensatory function. There is a tendency to consider any aging person that exhibits trouble with cognitive func- tioning, whether it is memory, concentration, calculations, etc., must be exhibiting early signs of dementia. Maybe, but maybe not. It is very possible that even if his/her impairment is mild that there will not be a transition to full-blown dementia, and, in that regard, he/she may still be competent to make his/her own decisions. Finally, if somebody has a very quick change—a significant change in cognitive functioning within a week or a few weeks’ worth of time, it is most likely not dementia, but may be delirium. Most people recover memory challenges they experienced as a result of delirium. Another consideration is cognitive or memory impairment due to de- pression, or another mental health issue. In this regard, mental health is usually treatable, suggesting that the impaired cognitive functioning may be temporary.
II. CONSIDERATION AND EVALUATION OF DECISIONAL
CAPACITY
In the majority of the decision-making literature, regardless of the domain, the Four Component Model of Decisional Capacity is uti- lized.^7 This model includes four different components/areas that are assessed in studies on decision-making capacity. The first is under- standing, which is comprehension of the topic that is under discussion. Appreciation, the second component, involves having full knowledge about the risks, benefits, and significance of the situation. Regardless as to whether the topic is health-related or financial, being able to thoroughly understand the risks and the benefits to each of the vari- ous alternatives is essential to demonstrate appreciation. The third component is reasoning, being able to apply the decision to the current context. From the psychological perspective, there is a focus on whether the person can make rational decisions. Finally, being able to express a choice or indicate a preference in some way is the final
- See THOMAS G RISSO & P AUL S. A PPELBAUM, ASSESSING COMPETENCE TO CONSENT TO TREATMENT : A GUIDE FOR PHYSICIANS AND OTHER HEALTH PROFESSIONALS 31 (1998); see also Alan Meisel et al., Toward a Model of the Legal Doctrine of Informed Consent , 134 AM. J. PSYCHIATRY 285 (1977).
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component. Even if a person lacks the ability to verbally communicate due to a temporary or permanent problem, if the person is able to somehow indicate a preference by pointing, nodding, blinking, etc., this can be helpful. When evaluating these components, it is impor- tant to consider whether someone was once able to do something that he/she is no longer capable of – the question is whether there has been a noticeable change in ability – and again, whether that change in ability is a permanent or temporary change. The fields of psychology and law may concentrate on different components due to the differen- tial focus on what demonstrates capacity versus competency. To sat- isfy competency, the legal system may attend to understanding the topic and expressing a choice. Mental health professionals assessing capacity tend to concentrate on whether the person can appreciate the significance of the situation and engage in rational decision-making. This contrast is subtle but corresponds with the differences between capacity and competency. Many practicing in law are confronted with making their own de- terminations about someone’s decision-making abilities while in the midst of a session. Thus, what can be done to determine if somebody is indeed competent or has decision-making capacity? It is important to be able to look for, observe, and interpret signs of diminished capac- ity. If signs of diminished capacity are detected, this does not trans- late into determining that the person should not be allowed to make decisions; however, this can serve as an initial indicator to reconsider whether this is an appropriate time to make decisions. It might be possible to temporarily postpone decision-making or slow down to al- low the person the opportunity to make a decision under different cir- cumstances whereby capacity may be improved. There are cognitive, emotional, and behavioral signs of dimin- ished capacity. Short-term memory loss, communication difficulties, comprehension problems, lack of mental flexibility, calculation errors, and/or overall disorientation may be cognitive indicators of dimin- ished capacity. Emotional signs include various forms of distress and/ or inappropriate or quickly changing emotions. Grief, recent changes in health status or diagnoses, amongst other changes, in one’s per- sonal life can cause stress that can temporarily diminish one’s capac- ity. Finally, behavioral signs can include poor hygiene or grooming, presence of delusions or hallucinations, and/or new needs for assis- tance with activities or instrumental activities of daily living. With any of these signs, the emphasis is on noticeable differences from pre- vious encounters with the same individual. Looking for these signs in clients and being able to observe and interpret is important, particu- larly in regard to whether the sign(s) may be something short-term that might resolve. In addition, keeping a note of signs observed and
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based upon time or domain. However, when, in terms of the legal per- spective, it has to be an absolute yes or no, a clinical assessment can be used in the court to help make a competency judgment. In the court, the person is either deemed competent to make decisions for him/herself on any domain or he/she is deemed incompetent to make decisions for him/herself on any domain. The American Bar Association and the American Psychological Association have been in collaboration with one another regarding this issue since 2001. Handbooks to support both lawyers and psychol- ogists regarding capacity have been produced.^10 In the algorithm for lawyers, the flowchart guides one to first consider if there are observa- tional signs of diminished capacity. If so, then mitigating factors should be taken into account. If mitigating factors are present, it is recommended to revisit signs of diminished capacity at a later time. If mitigating factors are not present, then the lawyer needs to consider the transaction to be completed and make a legal judgment regarding whether the person is intact, has mild problems, more than mild problems, or severe problems. If the person is intact, this means that there is no or very minimal evidence of diminished capacity. In this case, the lawyer proceeds as he/she always would. When mild problems (e.g., some evidence of diminished capacity but not enough to interfere with the proposed transaction) are detected, the lawyer may proceed or consider suggesting a medical referral, clinical consul- tation, or evaluation. This may depend upon the lawyer’s comfort level and/or history with the client. When the legal judgment is more than mild or severe, it is unlikely that the transaction will proceed exactly as initially intended. This suggests that there is substantial evidence of diminished capacity (i.e., more than mild). In this regard, consultation with a neuropsychologist or a clinical psychologist would be recommended in most circumstances. In some instances the trans- action may proceed with caution. In all cases of severe problems, the transaction will not continue, and the lawyer may decline/withdraw representation or at least request protective action for the client until a formal capacity assessment has occurred.
III. SUPPORTING AGING CLIENTS
In cases of diminished capacity, whether temporary or progres- sive, lawyers can support aging clients to enhance capacity; this may be particularly relevant when mitigating factors are present or only mild problems may be evident. These techniques may also be used in
- See AMERICAN B AR A SSOCIATION C OMMISSION ON L AW AND A GING & A MERICAN PSYCHOLOGICAL A SSOCIATION , A SSESSMENT OF OLDER A DULTS WITH DIMINISHED C APAC- ITY : A HANDBOOK FOR L AWYERS (2005).
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cases of more substantial diminished capacity to simply support the client, even if the transaction does not proceed. To foster trust and confidence with clients, ensuring confidentiality is essential. Demon- strating respect and encouragement, providing additional time to make decisions, and supporting continued participation in decision- making (regardless of legal determinations of competency) can also enhance client capacity. Extending the amount of time, even over multiple sessions, can be particularly helpful, especially in cases of mild concern that might temporarily resolve themselves over time. In this case, at the beginning of the next session, decisions made in the prior session could be briefly revisited to ensure no changes are de- sired before continuing. Being mindful of sensory changes, particu- larly in regard to vision and hearing, is also important to enhance client capacity. It is essential that the client can hear and understand what is being spoken and communicated. In regard to cognitive impairments, adaptations can be made. Again, approximately 15% of people with mild cognitive impairment progress to dementia, but the majority of them do not. Also, less than 10% of people aged 65+ have mild cognitive impairment, whereas this number increases to approximately 15% of those aged 75 to 85, and 30% of those aged 85 and older. Depending upon the individual, and possibly the day, mild cognitive impairment may place someone in the mild or more than mild designation. The cognitive impairment may be permanent or temporary. Thus, simplifying as much as possible, slowing the pace, and allowing sufficient time to make decisions (when appropriate) is necessary. Providing additional cues and rephrasing may also help. Finally, strengthening client engagement in decision- making is encouraged.^11 Even in instances where there is a power of attorney involved, or a guardianship, or someone has been deemed in- competent to make decisions, they can and should be included in those decision-making processes to the extent that they can. In conclusion, there are various strategies to support aging cli- ents. It is essential to keep in mind that some instances of diminished capacity are temporary, and mitigating factors can be influential. Further, the majority of aging clients will not have dementia, so utiliz- ing strategies to support those experiencing normative changes and/or mitigating factors is essential to maintaining a positive relationship with clients. Looking for, observing, and interpreting potential signs of diminished capacity are important, and should be regularly at- tended to in all adults, but particularly in aging adults when mitigat- ing factors may be present. These indicators might be temporary or
- Linda F. Smith, Representing the Elderly Client and Addressing the Question of Competence , 14 J. C ONTEMP. L. 61, 90-92 (1988).
