Diminished Capacity and Decision Making

The terms “competency” and “capacity” are often used interchangeably. Although some commentators draw fine distinctions between the two, it is fair to say that both are intimately tied to the legal concept of informed consent. In the broadest sense, informed consent represents an individual’s ability to understand the world around him or her; more specifically, informed consent reflects an individual’s agreement to allow something to take place based upon full disclosure, with awareness and appreciation of the pertinent risks and alternatives. An individual’s ability to control his or her fate within the law is an essential component of personal liberty.

This brings up two key questions. First, how do we determine who is incapacitated or, said another way, how do we determine who is capable of giving informed consent? Second, who makes decisions for an incapacitated individual who is unable to give informed consent?

Most state law presumes that all adults are competent, a presumption that can be rebutted by clear and convincing evidence of the lack of mental capacity. The difficulty is that capacity is situational. The necessary degree of capacity required to provide informed consent depends on the relative complexity of the proposed act. For example, in many states a relatively low level of capacity is required for someone to create a valid will. Greater capacity is required to grant informed consent to medical care. Conversely, a person who might be considered too incapacitated to handle his or her own investments may still have sufficient capacity to give consent to medical care.

In determining capacity, the fact-finder must determine whether the individual has the ability to make a choice that is based either on rational reasons or on personal, though generally accepted, values. The individual’s decision should be based on appreciation of reality, and not be a consequence of phobia, panic, depression, or a reaction to medicine. For example, a patient who believes that the physician is an agent of the devil is not competent to give informed consent; while a patient who refuses to consent to an operation because he or she believes that the physician is inept does not demonstrate a lack of capacity, even if mistaken about the physician’s capabilities.

The doctrine of informed consent requires every person to be his or her own decision maker. If the individual is unable to grant consent because of lack of capacity, an alternative decision maker must be identified. The ideal scenario is that the individual has planned for this point in life and executed advanced directives naming an individual to act as a proxy. It is even better if the parameters for the decisions are outlined in the document, be it a living will, power of attorney for health care or property, or under a revocable living trust. But, in the absence of advance planning, what comes next?

If there is no agent, a guardian may make decisions on behalf of the individual. On the filing of a guardianship petition with the appropriate court, a hearing is held to determine capacity. If the individual is found to be incapacitated, the court will appoint a guardian whose decisions are imputed to the incapacitated person. In effect, the incapacitated individual continues to control decisions, albeit through the use of a guardian.

If the individual has no agent and no guardian is appointed, many states have statutes authorizing a surrogate to assume authority at least for health-care decisions in a manner similar to an agent under a power of attorney. Typically, there is a priority list of those authorized to assume the role. A common order of priority of the individuals to act as surrogate is as follows:


• the individuals’ spouse,

• a majority of the individual’s adult children,

• a parent of the individual,

• a majority of the individual’s brothers and sisters,

• a majority of the individual’s adult grandchildren,

• a close friend of the individual, and

• the individual’s court-appointed guardian of the estate.


If certain qualifying conditions are met, the surrogate is directed to make decisions in a manner that conforms as closely as possible to what he knows or believes the intent of the person in full capacity to be. If no intent is known, then a “best interests” standard is applied.

It is common for a surrogacy statute to be limited to life-sustaining decisions and not to cover the variety of decisions that would otherwise be encompassed by a power of attorney or other advanced planning. Although pre-planning is the ideal situation, it is some comfort to know that there are options when an individual is in need.


For more information about RPPT YLN, please contact:


Hugh F. Drake, YLN Chair

Brown Hay & Stephens, LLP

P.O. Box 2459

Springfield, IL 62705-2459



Kalimah Z. White, Co-Vice Chair, Membership Committee

NatCity Trust Company of Delaware

300 Bellevue Parkway

Suite 160

Wilmington, DE 19809-3719


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