The law recognizes that adults, (people over age 18) have the right to manage their own affairs and conduct business, including the right to make health care decisions. Emancipated minors are people below the age of adulthood (usually 18) who are also considered legally capable.
Capacity is the ability to make decisions for oneself. Capacity is when a person can go through the process of making their own decisions by understanding the information and choices presented, weighing up the information to determine what the decision will mean for them and then communicating that decision. If a person is unable to follow this process and make his own decisions, that person is said to lack capacity.
A person may lack capacity due to a disability such as intellectual disability, dementia, brain injury or mental illness. A person may lack capacity temporarily. An example of this is during a coma following an accident. The person may be able to make some decisions but not others.
Legal capacity and all the rights that go with it remain in effect until death, unless a court of law determines that a person can no longer manage personal affairs in his own best interest and court intervention is necessary to protect the person. Health care practitioners, even if they think the person is incapable of making a decision, cannot override the person's expressed wishes unless a court declares the person legally incapacitated.
State laws favor the term “incapacity” rather than “incompetency” and define the term as task-specific. By this, every task requires different capabilities to accomplish. For example, a person may be declared legally incapacitated regarding financial affairs, yet still retain legal capacity to make medical decisions or decisions about where to live. A finding of legal incapacity by a court of law takes away all or part of a person's right to make decisions. Legal incapacity normally results in the appointment of a guardian or conservator to make necessary decisions for the person.
Clinical incapacity to make health care decisions is the medical judgment of a qualified doctor or other health care practitioner who determines a person to be unable to do the following:
- Understand his or her medical condition, or the significant benefits and risks of proposed treatment and its alternatives
- Make or communicate appropriate medical decisions
People are assumed to have capacity to make their own decisions unless it can be demonstrated that they lack capacity. Disability alone does not indicate a lack of capacity. A person with a disability may be able to make his or her own decisions without assistance.
In some cases a person with a disability require assistance in clarifying issues and choices to enable autonomous decision-making. We may not always agree with other people’s decisions. What must be determined is whether the person is simply making ‘bad’ decisions or whether he or she lacks capacity to make decisions.
A person in a coma cannot make any decisions, whereas a person with a severe language problem may be able to make decisions but may be unable to communicate them. People with mild dementia may think clearly enough to understand discussions with their doctors and make some medical decisions.
Also, clinical incapacity is not necessarily permanent. People who are intoxicated, delirious, comatose, severely depressed, agitated, or otherwise impaired are likely to lack the capacity to make health care decisions but may later regain that capacity. A patient's ability to carry out a decision is also important for doctors to assess.
People with dementia may require an evaluation of their level of cognition, memory, and judgment before their doctors can proceed with medical care. Likewise, a clinical evaluation of the person's ability to conduct major legal and business transactions may be needed before a lawyer or accountant can proceed with transactions.
For medical decisions, if doctors find that a person lacks capacity, they turn to someone appointed by the person or to a close relative or friend to act as substitute decision-maker. This process of making health care decisions for people who cannot make decisions for themselves is rarely litigated in court. However, if the patient or other appropriate party objects to a particular medical decision or to the determination of clinical incapacity, the courts may become involved. A doctor cannot go against the person's wishes unless a court declares the person legally incapacitated.
