How many decisions do you make a day? While that number is hard to ascertain some suggest it’s as many as 35,000. Granted most of those decisions are not significant, but they represent a choice nonetheless.
We make decisions all the time: what to wear, where to stand, where to sit, what to eat, when to get up, what to drive, how to spend our time, our money and the like. Even the Former-President of the United States, Barack Obama said in an interview with Vanity Fair: “You’ll see I wear only gray or blue suits… I’m trying to pare down decisions. I don’t want to make decisions about what I’m eating or wearing because I have too many other decisions to make.” Similarly, Facebook founder Mark Zuckerberg revealed that he wears the same clothes over and over again so as to limit the time he spends making “frivolous” decisions so he can concentrate on “real work”.
When we consider this, it’s no surprise that the law attempts to apply some order to these decisions. In the eyes of the law, decision-making is usually organized into a hierarchy based on the degrees of competency needed for various decisions. Just because someone doesn’t have capacity to make one decision doesn’t necessarily mean that they are unable to make a different one.
In this post we will expand upon this concept and delve deeper into the various levels of the capacity hierarchy. As you will see it becomes clear why each of the following factors are ranked the way they are.
Here is a list of the primary levels of the hierarchy in regards to testamentary capacity, in order from most cognitive ability required to least:
- Self-determination (Personal financial and medical matters)
The courts have established matters related to managing oneself as a very high level of cognition. Many seemingly simple decisions are often more complex than it may appear, for instance, when deciding to make a purchase, one must understand:
- What is the cost?;
- Can he/she afford it?;
- Are there any terms of the purchase including any conditions which may require future action?; and
- What are the benefits and consequences of that purchase?
Without this knowledge, or if a decision regarding one of these factors is forgotten due to a diminishing capacity, then the individual could easily miscalculate any aspect of the decision-making process such as not leaving enough money to pay the bills. Medical matters can also be complex. To know and understand what medications are due in what dosages, when they should be taken and with what foods requires a higher level of understanding.
- Testamentary capacity (The ability to prepare and execute a Will)
The mental ability to write and execute a will is very similar in concept to the purchase example above; one must understand the extent of what they own, who would have a claim to their property post-mortem, to whom they are leaving their possessions, and have the ability to explain why these decisions are made. Yet, while any of these factors could easily be impacted by sudden forgetfulness, someone with milder dementia could have a grasp of these as it is simpler and doesn’t represent ongoing decision-making abilities.
- Appointing a representative
Often someone is not deemed to have capacity in all domains, but they may still understand largely what is happening to them. In cases such as those it is deemed too large of a risk for individuals to make these decisions on their own. As a compromise the court will often appoint a representative, with various degrees of control available, from a substitute decision-maker (SDM) to full guardianship/trusteeship. A fairly high level of capacity is still required for this decision as they must be able to understand their SDM and be confident that the SDM will act in their best interests.
Ask any teenager in love, marriage is tricky to restrict. At its core, marriage is very simple: a person has to believe that they love someone and wish to be with that person forever. And even though marriage becomes significantly more complicated when abuse enters the picture (financial, physical, sexual, emotional) it is still more basic than the above. That’s why people with developmental disabilities are not generally restricted in their choice to marry or not.
Separation is often deemed to be one of the simplest tasks as it requires lesser cognitive functioning to comprehend. What the individual must understand is that they would rather not be with this individual. Even someone with late-stage dementia is usually able to figure out if they like someone or not.
It is important to note that not every scenario is covered by this hierarchy in its current form. For instance, one might logically conclude that individuals who need to deal with the finances or property of others are presented with a more complex set of circumstances than handling one’s own financial matters. By extension, one would assume this would be the first factor to get restricted, however, in its current form there is little governance regarding capacity and handling the affairs of others.
To avoid potential contests and litigation, clients must execute documents while they have capacity and before any questionable capacity issues arise.
It is always best to encourage clients, especially those with family histories of dementia, or early onset conditions such as strokes, heart attacks, memory or cognitive issues, to ensure their wishes are clearly documented in the form of a Will, Personal Directive and Power of Attorney to ensure their wishes are respected if and when their capacity declines.
Please note that a sudden one of any of these events could put one into mental incapacity for any period of time without notice and immediately; without these documents in place it is questionable what will happen.
If this is an area which is important to you or a loved one and would like to hear more on the topic, please let us know. Also, please feel free to share any experiences you or a loved one may have had regarding capacity, from any stage of the hierarchy.