Evaluating Capacities

As the population continues to age, our healthcare and legal systems face new challenges and demands. For example, can an older adult living with a moderate progression of Alzheimer’s disease continue to make medical decisions in light of missed appointments and medications? What about another older individual with a long history of schizophrenia who could benefit from more assistance with finances, but does not allow it due to their paranoid thoughts? Our first consideration is always “what supports can be put into place?” However, at what point would we turn to another individual to help them make decisions or serve as a surrogate decision maker? Questions like these arise across the clinical practice settings of psychologists working with older adults and may involve an evaluation of decisional capacity, defined as “a clinical assessment and opinion as to whether a person has the requisite ability to perform a task or to make a decision that is being questioned by another” (Moye, 2020, p. 4).

The act of determining whether an older individual can manage their personal assets and affairs has long been a feature of society, with at least one early account dating back several hundred years BCE (National Disability Council, 2008). The concept of capacity is socially derived and as such has many stakeholders – clinicians, researchers, legal and judicial professionals, protective agencies, advocacy groups, society, and ultimately those individuals most likely to be subjected to questions about their capacity. These stakeholders influence our view of and clinical approach to capacity (as is seen in in the variability in terminology and role of psychologists;  Rothke, Demakis, & Amsbaugh, 2019). Because our understanding of what it means to demonstrate capacity has changed over time, so too have our legal and clinical approaches (American Bar Association Commission on Law and Aging and American Psychological Association, 2021). Therefore, relying only on your clinical perspective omits critical information in the assessment of capacity.

Even with our developing social, legal, and clinical conceptualizations, psychologists may still encounter several misconceptions about later life and decision making. Misapprehensions may prompt a request for an evaluation, or worse, be used to justify overly intrusive interventions and curtail an individual’s autonomy. Some common misbeliefs include: 1) a diagnosis of dementia alone equates to a lack of decision making ability, 2) lacking one type of capacity means lacking all others, and 3) that a determination of lack of capacity is permanent (see Ganzini et al., 2004). In each of these situations, a well-crafted evaluation can identify strengths, areas to support, or temporary or reversible causes of lack of capacity.

In clinical practice, we recognize that individuals have many kinds of capacities, rather than using a historical broader and dichotomous perspective of having or not having capacity (American Bar Association and American Psychological Association Assessment of Capacity in Older Adults Project Working Group [ABA/APA], 2008). As such, evaluations have become situation- and task-specific, and capacities that psychologists may assess include an individual’s ability to:

• make a medical decision
• manage financial affairs
• live at a level of their choosing
• drive
• consent to a sexual relationship
• appoint a surrogate decision maker

It is important to distinguish between oft used terms of competency and capacity (although capacity has become more favorable across legal and clinical contexts). Competency refers to a judicial (i.e., court) determination of one’s legal status and ability to manage personal affairs and/or assets. If considered in need of assistance, courts may appoint a guardian or conservator to fulfill these responsibilities (terms vary, check your local jurisdiction). The term capacity, in contrast, reflects an ability to complete a task or make a decision (Moye & Wood, 2020).

Clinical Assessment of Capacity

The evaluation of clinical capacities necessitates a consideration of clinical and functional data within the contextual factors of a person’s life, including their cognitive and functional abilities, mental and physical health conditions, values, the level of risk associated with a decision, and supportive and compensatory resources available in the individual’s surrounding environment (ABA/APA, 2008).  In that way, capacity evaluations entail an examination of person-environment fit, and the consideration of contextual data can provide an avenue for advocating for an individual’s retained abilities and/or supports to be added to maximize clinical capacities (Moye, 2020).

The legal and clinical standards of capacity most commonly encompass the functional abilities of expression (the ability to consistently state a choice), understanding (the ability to comprehend information related to the decision), appreciation (the ability to recognize how information associated with a choice applies to the self), and reasoning (the ability to consider information in a logically, rationally consistent manner) (Moye & Braun, 2010). Additional abilities may be assessed depending on the capacity in question (see ABA/APA, 2008). Instruments for evaluating clinical capacities are available in the literature, yet establishment of reliability and validity across culturally diverse populations and practice settings remains a pursuit of test developers and investigators. As a result, the approach utilized frequently by psychologists performing evaluations of clinical capacities is a clinical interview focused on the functional abilities in the context of the specific decision at hand. Psychologists may supplement this with standardized measures of capacity, cognition, personality, and/or psychological/psychiatric conditions. It is essential that information from collateral sources also is incorporated, including caregivers, family members, friends, social agencies, and interdisciplinary team members. Consultation with staff from other disciplines can provide invaluable data about a person’s specific functional capacities, such as medication management, and their understanding of their medical conditions and psychosocial needs. Determinations resulting from clinical capacity evaluations include a person having full capacity, diminished capacity, or lack of capacity with respect to a specific clinical decision at the time of the assessment. However, note that these clinical determinations do not change a person’s legal status, as only a judicial finding can do so. Psychologists can anticipate the need to be agile in adjusting to unexpected circumstances arising in the course of clinical capacity evaluations. In the section below, we highlight relevant contextual factors (cultural, ethical, and legal) to integrate when formulating impressions of capacity status.

Contextual Factors

Sociocultural Considerations

Clinical assessment of capacity occurs in a broader context that includes the sociocultural experiences and identity of both the patient and provider. The U.S. population is rapidly changing – Older adults (age 65 and older) are expected to outnumber children by the year 2034 (U.S. Census Bureau, 2018), immigration will serve as the primary source of population increase by year 2030, and white Americans are expected to be the numerical ethnic minority by year 2045 (Vespa, Medina, & Armstrong, 2020). Further, growing movements for disability rights and optimizing patient autonomy in decision making suggest the need to transform our clinical practices to match our rapidly evolving patient population.

Of the many cultural factors that influence assessment of capacity, the extant literature only begins to scratch the surface, with special attention paid to the influence of specific demographic factors (i.e., age, race/ethnicity, country of origin, religion/spirituality, disability, education level/health literacy) primarily on medical decision-making (Alden et al., 2015; Hawley & Morris, 2017). Although scholars highlight meaningful cultural differences in approaches to medical decision making, there is a dearth of literature examining the cultural implications of capacity assessment, particularly as it related to both the examinee and the examiner. Westernized cultural values, beliefs, and expectations are inherently woven into the perceptions of examiners and many of the available instruments we use to support capacity assessment. As practitioners, we must exercise appropriate caution in making potentially life-altering recommendations based on measures that may be inherently biased to favor majority culture values.

The assessment of capacity among the culturally diverse warrants a unique set of considerations including (but not limited to) ascertaining values informed by cultural beliefs and life experiences (Karel, Gurrera, Hicken, & Moye, 2010); bridging potential communication barriers between provider, patient, and family system; and accounting for other pertinent contextual factors (e.g., sociopolitical history, socioeconomic status, educational background, and access to resources). In healthcare settings, clinicians are encouraged to adopt an emic approach to understanding a patient’s conceptualization of their own illness, their understanding of treatment options, and their approach to decision making (e.g., collectivistic vs. individualistic; present vs. future-oriented; quality vs. length of life; Karel et al., 2010).

One way to effectively incorporate cultural factors into capacity assessment is to utilize measures that are sensitive to cultural differences. For example, in the Assessment of Capacity to Consent to Treatment (ACCT) Interview, Moye and colleagues (2007) provide a useful framework for incorporating psychosocial considerations through direct assessment of values across four factors: extent of concern for maintaining self-sufficiency, extent of concern about pain and quality of life; extent of concern about preserving life; and extent of concern about impact of decisions on the family.

As the U.S. population evolves, we must strive to meet the challenge of eradicating implicit bias in assessment of capacity and all areas of clinical practice. Additional studies examining the cultural sensitivity of existing capacity measures is a fundamental step toward progress. Perhaps a more innovative approach is to develop and adopt the use of new measures that reflect the increasingly diverse experiences of our patient populations. Such endeavors require a thoughtful approach to item construction and good faith efforts to develop inclusive population norms. Culturally-congruent capacity assessment may serve as a catalyst for a necessary paradigm shift toward inclusive, effective decision making and reduced disparities in health outcomes.

Ethical and Legal Considerations

Ethical principles provide an essential foundation for the conduct of capacity evaluations, with beneficence, nonmaleficence, justice, and respect for an individual’s rights and dignity forming the bedrock for the conceptual approach (APA Ethical Principles for Psychologists and Code of Conduct, 2017). Evaluation of capacities occurs within a legal context as well, requiring familiarity with state specific statutes guiding Durable Powers of Attorney (DPOA) for Healthcare and Finances, conservatorship, payeeship, guardianship, and protective placement, among others. Whereas capacity is a clinical determination about a person’s ability to make a specific decision, such as name a surrogate or consent to a treatment, competency is a legal status rendered by a judge that typically comprises a broader adjudication of an individual’s capability to manage their affairs. While distinct terms and concepts, legal guardianship proceedings often arise from a clinical capacity evaluation and determination, such as in instances of a lack of available, willing, or capable DPOA agents or the necessity of a court order for protective placement in a supportive living environment. This may result in the examining psychologist being required to testify in court, a skillset that is typically beyond the scope of graduate training. Consultation with experienced colleagues and resources such as the Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists (ABA/APA, 2008) will position psychologists to navigate the nuances inherent to such an extension of their clinical practice into a legal arena.

Summary

Requests for an evaluation of an older adult’s capacities are common in geriatric care settings, yet few clinicians report any formal training or preparation on how to perform them (Charles et al., 2017; Seyfried et al., 2013). This warrants concern, given these evaluations involve a complex interaction of clinical and contextual factors. To meet the needs of the aging population, psychologists must develop and possess a unique set of competencies in order to ethically perform these evaluations in an empirically supported manner (Bush & Wood, 2021). We offer this introduction as a starting point and we encourage continued efforts toward competency through further exploration. Means for doing so include reflecting on current Pikes Peak competencies (see Knight et al., 2009), reading the literature on the specific types of capacities, reviewing local statutes, attending continuing educational programs, and consulting with peers proficient in capacity evaluations.

Written by Kyle S. Page, PhD, ABPP, Heather Smith, PhD, ABPP, and Mary Odafe, PhD

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