Capacity Is Decided Task by Task
Families talk about a parent having lost capacity as though it were a single event with a date. The law does not work that way. Capacity is assessed for a particular decision at a particular time, and somebody can lack it for one thing and hold it for another.
The rule in short
Capacity is not a global status. It is assessed in relation to a specific decision, at the time the decision is made, and the standard varies with the complexity and consequences of what is being decided. Somebody may be unable to manage a portfolio and perfectly able to decide where to live or whom to appoint. A diagnosis of dementia does not by itself establish incapacity, and fluctuating conditions require the question to be asked again.
A daughter says her mother no longer has capacity, meaning that she cannot follow a bank statement. Her mother, meanwhile, knows exactly where she wants to live and who she wants making decisions for her. Both things are true at once.
What the question actually asks
About a specific decision. Whether this person can make this decision, rather than whether they are generally capable of managing their affairs.
At a specific time. Since conditions fluctuate and a person may have capacity in the morning and lack it by evening.
With a standard that varies. Higher for complex decisions with serious consequences, lower for straightforward ones with limited effect.
Focusing on ability, not outcome. An unwise decision is not evidence of incapacity, since people with capacity are entitled to make poor choices.
And presuming capacity. Which is the starting point, so the burden falls on whoever asserts that somebody cannot decide.
The elements usually examined
Understanding the information. Whether the person can take in what the decision involves, explained in terms suited to them rather than in technical language.
Retaining it long enough. To make the decision, which does not require permanent recall and is a common misunderstanding.
Weighing it. Using the information to consider the options and their consequences, which is where cognitive decline shows most clearly.
Communicating a decision. By any means, since somebody unable to speak may still be able to indicate a choice reliably.
And doing so free of undue influence. Which is a separate question but frequently arises alongside, as set out in what undue influence means.
| Decision | Typical standard | Often retained late |
|---|---|---|
| Buying everyday items | Low | Yes |
| Deciding where to live | Moderate | Often |
| Appointing an agent | Moderate | Often |
| Making a will | Its own standard | Sometimes |
| Managing investments | High | Rarely |
Where the distinction matters most
Making or changing a will. Which has its own standard and can be retained after the ability to manage money has gone.
Appointing an agent. Which requires understanding what is being given and to whom, and is often possible later than families assume.
Decisions about where to live. Frequently retained, and frequently taken away from people who were entitled to make them.
Medical decisions. Assessed for each decision, so a person may consent to one treatment and be unable to weigh another.
And day-to-day choices. Which almost everybody retains, and which matter to dignity in a way that families sometimes overlook.
People with full capacity make decisions their families consider foolish every day, and the right to do so does not diminish with age. A parent who chooses to remain in a house their children think unsuitable, or to give money to somebody the family disapproves of, may be exercising capacity rather than lacking it. The question is whether they can understand and weigh the decision, not whether they reached the conclusion their family would have preferred.
Supporting a decision rather than replacing it
Choose the time. Morning for most people with cognitive decline, and not immediately after a hospital admission or a poor night.
Choose the setting. Quiet, familiar and unhurried, and ideally without the relatives whose interests are affected, for the reasons in when a relationship shifts the burden.
Simplify the information. Without distorting it, presenting one decision at a time rather than a folder of connected questions.
Allow time. Since processing is slower, and a person given twenty minutes may decide well where one given two cannot.
And ask, rather than assume. Because the commonest error in families is deciding on somebody's behalf while they were still able to decide.
Who decides, and on what basis
Clinicians for treatment decisions. Assessing capacity for the particular decision in front of them at the time it arises.
Lawyers for documents they prepare. Who are required to satisfy themselves that a client can make the decision being recorded.
Institutions for their own transactions. Frequently and informally, which is where a great many disputes begin, as covered in who decides that capacity is gone.
Courts where it is contested. On evidence, and only where the question has to be resolved formally rather than practically.
And nobody by simple declaration. Since a family's view that a parent has lost capacity is not itself a determination of anything.
The single most useful correction in this area is to stop treating capacity as a switch. It is a question asked repeatedly, about different things, with different answers, and a person's abilities do not disappear uniformly.
That has an immediate practical consequence: a parent who cannot manage a portfolio may still be perfectly able to appoint somebody to manage it for them. Families who conclude too early that it is too late frequently forgo a document that was still available.
The same applies to wills, to healthcare appointments and to decisions about where somebody lives. Each is assessed on its own, and several are commonly retained well into a cognitive decline.
How a decision is put to somebody matters as much as their underlying condition. The right time of day, a familiar setting, one question at a time and enough silence to think will produce a capable decision from somebody who would have failed a rushed assessment in a busy office.
The presumption of capacity is not a technicality. It reflects a judgment that people should keep making their own decisions until it is actually established that they cannot, and it puts the burden on whoever wants to take that away.
Unwise decisions deserve particular care, because they are the situation in which families most often reach for incapacity as an explanation. Disagreeing with a choice is not a reason to conclude that somebody could not make it.
Where there is genuine doubt, an assessment directed at the specific decision is worth far more than a general opinion about a person's condition. The two answer different questions and only one of them is useful.
And in almost every case the practical answer is to act sooner. Documents made while capacity is intact avoid every one of these difficulties, and the window for making them is longer than families tend to assume but does eventually close.
For families, the honest version of this is that both errors are common and only one of them is discussed. Acting too late, and losing the chance to put documents in place, is the failure everybody warns about. Acting too early, and taking decisions away from a parent who could still make them, is at least as frequent and considerably less talked about.
The corrective for both is the same: ask the specific question about the specific decision, at a good moment, and take the answer seriously. A parent who can say clearly where they want to live and who they trust has answered two important questions, whatever else they can no longer manage.
Points to carry away
- Capacity is assessed for a specific decision at a specific time.
- The standard varies with the complexity of the decision.
- A diagnosis does not by itself establish incapacity.
- Somebody may lack capacity for one decision and hold it for another.
- Fluctuating conditions require the question to be asked again.
Questions readers ask
Does a dementia diagnosis mean somebody has lost capacity?
No. A diagnosis describes a condition; capacity describes an ability in relation to a particular decision. Many people with a diagnosis of dementia retain capacity for a considerable period to make decisions about where they live, who should act for them and what medical treatment they want, while losing the ability to manage complex financial affairs earlier. Treating a diagnosis as an answer removes decisions from somebody who is still entitled to make them, which is both wrong and, in practice, distressing to them.
Why does the standard vary by decision?
Because the ability required to understand a decision depends on what the decision involves. Deciding to buy a newspaper requires very little; deciding to sell a house, restructure investments or change a will requires understanding the nature of the transaction, its consequences and the alternatives. The law responds to that by asking whether this person can understand, retain, weigh and communicate a decision about this matter, rather than by applying a single threshold to everything a person might do.
What about somebody whose condition fluctuates?
Then the question is whether they have capacity at the time the decision is being made, which means timing matters. Somebody who is confused in the evening and clear in the morning may be perfectly able to make a decision if it is put to them at the right time, in the right setting, with the right support. Rushing a decision to a bad moment, or concluding from one poor afternoon that capacity is gone, both produce the wrong answer.
Sources
- Legal Information Institute — Capacitylaw.cornell.edu
- Legal Information Institute — Competencelaw.cornell.edu
- Legal Information Institute — Testamentary Capacitylaw.cornell.edu
- Legal Information Institute — Guardianshiplaw.cornell.edu
- Legal Information Institute — Informed Consentlaw.cornell.edu
- Legal Information Institute — Undue Influencelaw.cornell.edu
Silverline Legal Notes is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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