Old age robs us of many things. It is important to remember, however, that one thing it alone does not cause is the loss of legally effective decision-making ability or capacity. Some time ago I met with a client who had just celebrated her 100th birthday. While she was signing papers we had a discussion of current events, and she expressed views that were clear and concise. I’m confident that this fall, her right to vote will be thoughtfully exercised. This is not to say that people can’t become more physically frail as they age or that some diseases among aged people do impair capacity.
However, every person is affected differently; every situation is different, and — what most people don’t realize — by law, certain acts require different levels of capacity. Several years ago, the Archives of Neurology reported a study analyzing financial decision-making abilities of patients diagnosed with dementia compared to a normal group of a similar age. Part of the findings were that for people hospitalized with mild Alzheimer’s disease, the patients scored very near the control group, at least for many of the simpler financial decisions.
Moreover, it is increasingly clear that capacity is not permanently either present or absent in a person. Many environmental factors can affect a person’s abilities, including time of day, distractions, lighting conditions, quantity of information exchanged, to name a few. Thus, there may be times in circumstances when someone even with marginal capacity can make effective decisions.
Therefore, it is not accurate to conclude that because someone is old — or even old and ill — the person cannot make his or her own decisions. Moreover, caregivers and others in frequent contact with the person may be better able to assess varying capacity than a physician, psychologist or other professional who has seen the person only for a few sessions in a clinical setting (although these experts’ evaluations can be important in understanding the person’s abilities and devising strategies to maximize independent decision-making).
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It is interesting that in many states, including Florida, an incapacity proceeding seeking a guardian addresses specific abilities, such as “marry; vote; contract; manage or dispose of property; have a driver’s license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.” In Florida, the guardianship order limits the guardian’s appointment to the specific abilities in which the court believes the person is impaired.
Moreover, in Pennsylvania, there are different levels of capacity needed to make different decisions — a distinction often lost on non-lawyer professionals who are offering opinions assessing capacity. Each case is governed by facts unique to that case, but courts have found that a person may sign a contract (which requires one of the highest forms of capacity) if he/she acts with deliberation and understanding. On the other hand, a person may sign a will or a living trust if the person recognizes the natural objects of his/her affection and their general economic standing and can express his/her intention. Interestingly, a number of years ago, a court found that an adult with an IQ of approximately 69 and the mentality of an 8- or 9-year-old retained the capacity to plead guilty to a serious crime, thereby waiving the fundamental constitutional rights to a trial by jury and to confront witnesses.
This discussion is not intended to suggest that trusting older people may not be the victims of undue influence. However, no one — just because of age — should not be allowed to make his or her own decisions.
Amos Goodall is certified as an elder law attorney by the National Elder Law Foundation. He has an LL.M. in elder law (with distinction) from Stetson College of Law, and he practices in State College.