Public awareness of legal decision-making capacity and planning instruments in dementia: implications for health care practitioners.

The protection of a person facing difficulties with legal decision-making can be challenging; however, estate planning documents (EPDs) can offer safeguards. Little is known about the community awareness of EPDs and their perceived importance, including for people with dementia. Two-hundred and thirty adults read a mild dementia vignette, proposed a diagnosis for the vignette character (VC), and rated the VC's legal decision-making capacity (DMC). The effect on ratings about DMC under different conditions was explored (e.g., variation of VC characteristics and the decision). Awareness, and the personal importance, of EPDs were assessed. DMC was affected by the variations in the VC's age, diagnosis, and the decision, as high- or low-stakes, but not VC sex. Awareness of EPDs was low; however, planning importance was increased for dementia. Although the public understand that dementia affects DMC, they require further information about EPDs to validly enact them, thereby reducing potential vulnerability.

Developing and piloting the Consumer Experience of Capacity Assessment Tool (CECAT).

Autonomy in personal decision-making (DM) is a fundamental human right. Yet, DM can be impaired for many reasons, including poor health. If impairments are suspected, they may be formally investigated via a capacity assessment. The 'consumer' experience of such assessments is largely unexplored. The Consumer Experience of Capacity Assessment Tool (CECAT) was developed to address this gap. Fifteen individuals pilot tested the CECAT. The CECAT was found to be quick to complete, and easily understood. The results showed a wide range of perceptions about capacity assessment and suggestions for improvement (e.g., better communication to consumers about what to expect). With further development, the CECAT could be adopted as a standardised method for understanding the consumer experience of capacity assessment. This perspective could then be integrated into future capacity assessment guidelines so that appropriate human rights-based approaches are incorporated into capacity assessments.

Mapping dementia and cognitive decline in testamentary capacity.

Cognitive assessment is central to the evaluation of testamentary capacity. Such assessment is currently performed in a subjective, unreliable and non-standardized manner. Dementia, a cognitive illness, poses one of the largest threats to testamentary capacity in modern society. A better understanding of the ways in which dementia related cognitive impairment can affect a testator's ability to meet the relevant legal criteria to make a will is needed. A review of the literature over the past ten years focusing on what cognitive abilities are required to satisfy the legal criteria for testamentary capacity has highlighted an alarming scarcity of work in this area. There is little discussion spanning beyond general acknowledgement of the importance of memory and executive function. The specifics of how cognitive impairment impacts the four limbs of Banks v Goodfellow are rarely addressed. Several additional areas of cognitive function of importance to assessing testamentary capacity are the subject of this article.

Capacity assessment and estate planning - the therapeutic importance of the individual.

Demand for legal capacity assessments is increasing, especially assessments of financial capacity for estate planning purposes such as wills and enduring powers of attorney. This article proposes that such assessments will be improved by taking greater account of the client experience, including individual and relational factors and processes, and considering the practice framework. A literature review was undertaken with a two-fold aim: firstly, to understand the fundamentally important perspective (inclusive of these experiences) of the evaluee; and, secondly, to identify potential improvements in the capacity assessment process with a view to informing best practice. No studies were identified that directly addressed the individual perspective in capacity assessments. Case studies and commentaries that indirectly discuss the individual perspective were therefore analysed to identify any potential issues and recommendations. This analysis showed that individual factors, such as the evaluee's functional and disease status, and relational factors, such as trust, should be considered by examiners. This review demonstrates that there is a significant gap in the literature examining the individual's perspective and experiences in capacity assessments, as well as, any impact this may have on the assessment process and outcomes. Further research into this vital perspective is needed so that the experiences of those undergoing assessments can help inform best practice and ensure that optimal processes are adopted when assessing the capacity necessary to make legally recognised decisions. This article examines the importance of the participant perspective and experiences in capacity assessments through the novel lens of therapeutic jurisprudence. It includes practice suggestions and provides the direction for this future research.

Too ill to will? Deathbed wills: assessing testamentary capacity near the end of life.

Assessing testamentary capacity in the terminal phase of an illness or at a person's deathbed is fraught with challenges for both doctors and lawyers. Numerous issues need to be considered when assessing capacity for a will. These issues are exacerbated when such an assessment needs to be undertaken at the bedside of a dying patient. The nature and severity of the illness, effects on cognition of the terminal illness, effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers, and a range of other issues confound and complicate the assessment of capacity. What is the doctor's role in properly assessing capacity in this context and how does this role intersect with the legal issues? Doctors will play an increasing role in assessing testamentary capacity in this setting. The ageing of society, more effective treatment of acute illness and, often, the prolongation of dying are only some of the factors leading to this increasing need. However, despite its importance and increasing prevalence, the literature addressing this challenging practical area is scarce and offers limited guidance. This paper examines these challenges and discusses some practical approaches.

Assessing testamentary and decision-making capacity: Approaches and models.

The need for better and more accurate assessments of testamentary and decision-making capacity grows as Australian society ages and incidences of mentally disabling conditions increase. Capacity is a legal determination, but one on which medical opinion is increasingly being sought. The difficulties inherent within capacity assessments are exacerbated by the ad hoc approaches adopted by legal and medical professionals based on individual knowledge and skill, as well as the numerous assessment paradigms that exist. This can negatively affect the quality of assessments, and results in confusion as to the best way to assess capacity. This article begins by assessing the nature of capacity. The most common general assessment models used in Australia are then discussed, as are the practical challenges associated with capacity assessment. The article concludes by suggesting a way forward to satisfactorily assess legal capacity given the significant ramifications of getting it wrong.

A therapeutic approach to assessing legal capacity in Australia.

Australia lacks a satisfactory, national paradigm for assessing legal capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon legal capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. This article will discuss legal capacity assessment in Australia and how to strengthen the relationship between legal and medical professionals involved in capacity assessments. The development of a national paradigm would promote consistency and transparency of process, helping to improve the professional relationship and maximising the principles of autonomy, participation and dignity.

Evaluation of legal capacity by doctors and lawyers: the need for collaborative assessment.

Balancing the interests of individual autonomy and protection is an escalating challenge confronting an ageing Australian society. One way this is manifested is in the current ad hoc and unsatisfactory way that capacity is assessed in the context of wills, enduring powers of attorney and advance health directives. The absence of nationally accepted assessment guidelines results in terminological and methodological miscommunication and misunderstanding between legal and medical professionals. Expectations between legal and medical professionals can be clarified to provide satisfactory capacity assessments based on the development of a sound assessment paradigm.

Competency and capacity: the legal and medical interface.

The loss of legal competency, in the context of wills, enduring powers of attorney and advance directives, presents a challenge to individual autonomy. Both legal and medical practitioners have roles to play in determining when, and if, to infringe upon a person's sovereignty in order to provide for their protection. However, there is some evidence that inter-professional discussions are characterised by tension. Medical expertise is necessary to assess physical and mental capacity, but the legal concern is with competency, two distinct terms. It is argued here that cooperation between the legal and medical professions is essential in this area of practice. This article attempts to promote discussion of this objective by proposing therapeutic jurisprudence as a theoretical framework in which to reassess competency determinations, by reviewing the institutional structure and by suggesting that the adoption of a common and consistent terminology is essential.