In my capacity evaluation work, my clients (who are mostly lawyers) occasionally suggest that if I have already assessed that a decision maker has testamentary capacity, then I need not evaluate whether the decision-maker has capacity to appoint a power of attorney (POA) for property.  The reasoning is that because the threshold for testamentary capacity is higher than any other legal decision-making activity, if the decision-maker has testamentary capacity, then they must also have capacity to appoint a POA for property.

I disagree with this line of thinking.  In my view, a single hierarchy delineating different levels of capacity based on different types of decisions does not exist.  Different types of legal decisions call for different criteria to be applied,[i] as capacity determination is task, time and situation specific. My argument against a single hierarchy for all types of decision is premised on my view that there is already a hierarchy within each type of decision.

In my view, the concept of a decision-making hierarchy is better explained by the threshold needed for decision-making capacity, with reference to the evaluator’s level of satisfaction as to whether or not the decision-maker adequately meets the legal criteria for that specific decision. The degree of diligence required to arrive at that level of satisfaction may vary depending on things like: corroborative information that is (or is not) available, the potential outcomes of the decision, the risks involved, and any social conflicts and/or impact on family or supportive friends related to the decision being made.

Capacity is used clinically and legally to resolve situations in which two important social goals come into conflict: the promotion of autonomy vs. the protection of the vulnerable from harm. Risk-sensitive assessment of decision-making capacity refers to the argument that when the stakes of a decision are high, the threshold for decisional abilities should be higher. When the vulnerable person makes a choice that appears to be harmful, a stricter adherence to the criteria of the legal test for that decision-making task may be brought to bear. The rigor of the requirement of understanding and appreciating increases with the complexity of relevant information that is required to be understood and appreciated.[ii] By employing a risk-sensitive sliding scale, it is argued that evaluators gain flexibility to balance concerns about the vulnerable person’s autonomy vs. welfare.[iii]

A good example of risk-sensitive assessment of the threshold determination for decision-making capacity is described by Ken Shulman et al[iv] in their depiction of testamentary capacity evaluation, where the authors suggest that “a high level of conflict or complexity requires a higher level of cognitive and emotional stability compared to a testator in an uncomplicated milieu. That is, in a simple uncomplicated situation, the standard would be simply evidencing a choice, a higher standard would involve showing appreciation of consequences; and in a highly complex conflicted environment, a testator may have to reach an even higher legal standard, namely, the provision of rational reasons expressed clearly and consistently.”

The general argument by other authors against risk-sensitive determination of the threshold for decision-making capacity is that it may bias the evaluation towards a finding of incapacity[v] driven particularly by evaluators’ subjective values rather than objective measures, and vulnerable persons’ decisions will be judged based on whether their values differ from the subjective values of the evaluator. [vi] On the other hand, adopting a standard, low threshold for determining capacity to err on the side of self-determination can introduce bias imposed upon by the evaluator resulting in potential false positive opinions of capacity.

The challenge is knowing where to set the threshold for decision-making capacity.[vii] Where is the line drawn for the decision-maker’s level of understanding and appreciating? How is it determined case by case? Views on the threshold for decision-making capacity indeed may vary depending on the evaluator’s ethical stance. The moral and ethical views of capacity evaluators have the potential to influence their opinions about decision-making capacity. A neutral stance by the evaluator, rather than one of advocacy for best benefits, is paramount to a fair capacity determination.

References

[i] Whaley, K. A., Shulman, K. I., & Crawford, K. L. (2016). The Myth of a Hierarchy of Decisional Capacity: A Medico-Legal Perspective. Advoc. Q., 45, 395.

[ii] Competency to Consent to Research a Psychiatric Overview Paul S. Appelbaum, MD, Loren H. Roth, MD, MPH. Arch Gen Psychiatry 1982;39:951-958.

[iii] Stuart J. Youngner, “Competency to Refuse Life-Sustaining Treatment.” In End of Life Decisions: A Psychosocial Perspective, ed. Maurice D. Steinberg and Stuart J. Youngner (Washington, D.C.: American Psychiatric Press, 1998).

[iv] Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacity and vulnerability to undue influence American Journal of Psychiatry 2007; 164(5): p725

[v] Berens, N. C., & Kim, S. Y. (2022). Should assessments of decision-making capacity be risk-sensitive? A systematic review. Frontiers in Psychology, 13, 897144.

[vi] Sullivan MD, Ganzini L, Youngner SJ. Should psychiatrists serve as gatekeepers for physician-assisted suicide? Hastings Cent Rep. 1998;28(4)24–31.

[vii] Price A. Mental capacity as a safeguard in assisted dying: clarity is needed. Br Med J. 2015:351