What is the difference between decisional capacity and decisional competence?
Financial exploitation is a real problem that impacts persons living with dementia and their families. Families struggle with balancing independence with providing safety.
Decisional capacity is the ability to make a decision and can be evaluated by a clinician, such as a nurse practitioner, physician, social worker, or psychologist. Decisional capacity is situational. That is, a person may have the ability to make a decision about wanting someone listed as a healthcare proxy. However, that person may lack the decisional capacity to decide how to safely invest retirement funds. This blog is all about dementia, so I’m discussing decisional capacity within the context of dementia. Someone may lack decisional capacity due to being intoxicated, impaired by medication, deathly ill, or being overwhelmed by a traumatic event.
Decisional competence is a legal term. Competence is ultimately decided by a judge, who weighs opinions rendered by court-appointed or court-recognized experts.
How is decisional capacity determined?
Partly by a thorough examination. If memory issues are present, the first thing needed is to identify what parts of the mind are working, and which parts are having trouble. Dementia is more than memory loss. In someone with behavioral variant frontotemporal dementia, the main problems usually involve judgment and control. The person with bvFTD can recall a list of words and count backward from 100 by 7. Yet, the person with bvFTD may struggle with mimicking the examiner’s hand gestures or drawing a cube. That person may easily fly into road rage and try to run the “offending” driver off the road or hand a complete stranger a check for $50,000. The part of the brain that controls judgment and self-restraint is slipping away. So a person with mild bvFTD may have less decisional capacity for a financial problem than a person with mild vascular dementia.
Once the examiner has a general idea as to which parts of the brain (and what cognitive abilities) are strong and which ones are struggling, the examiner can ask some questions. Let’s say the person living with dementia wants to help out an adult child who is struggling financially. The recipient of the gift will assert that “mom knows what she is doing.” The other siblings may express concern: “Is mom being taken advantage of?” One way to gain some clarity is to see if mom understands the problem, appreciates the impact of the problem, understands the pros and cons of the issue, and is able to articulate her decision and why she made it in a way that shows she systematically thought through the issue. If I were asked to weigh in, I’d ask these questions:
1. What is the problem?
In other words, what is going on with your adult children? What is the problem? If I receive a detailed response, “Fred lost his job and he is unable to pay his bills. I’m going to give him $10k until he is able to find a new job. I don’t expect him to pay it back. I paid for the other two daughters’ weddings, I never helped him the way I had helped the girls,” that provides more information than, “Oh, they are always arguing about something. The girls get angry when I help Fred.”
2. What are some other options?
I would ask if the person living with dementia has some alternative ideas or solutions. What alternatives were offered by the other children?
3. What are the pros and cons of the proposed action? What are potential consequences (intended and unintended) of the proposed action?
Although the adult children may already know the answers to the following questions, it is helpful to hear the responses from the person living with dementia in order to determine their understanding of the decision. And possible outcomes of the decision on his or her life:
- Does $10K represent the person’s entire life savings? Will giving that much money away cause hardship to the individual or future caregivers? For someone with seven figures in investments, $10K is a much smaller percentage than $100K in the retirement portfolio.
- Is this an isolated incident, or is Fred expecting ongoing financial support while he searches for a job?
- Is Fred making promises in exchange for the funds? Promises such as, “I’ll always be here to care for you, Mom. I won’t let them put you in a nursing home.” It may be that the other siblings’ concerns about financial exploitation and coercion are founded.
It is interesting to hear what the person living with dementia reports as the pros and cons. She may sorrowfully admit that yes, this is an ongoing problem but she feels guilty if her son is homeless. Or, she may assert that Fred isn’t asking her for help, she decided to broach the topic and he accepted.
4. What is the final decision and why?
The challenge here is asking the question so that the person living with dementia does not feel attacked or doubted. Those emotions can cause the person with dementia to stop any discussion with the family. One approach is, “I’m curious what you finally decided to do for Fred.” After the person living with dementia gives the decision, a follow-up could be, “OK. How did you get to that decision?”
For financial matters, it is a good idea to put everything in writing, even if the person living with dementia exhibits decisional capacity for that specific issue. Naming a trusted person as power of attorney is also important. Decisional capacity does not mean everyone agrees with the person’s final decision; I can have the ability to make a decision, but may still make a poor one because I allowed emotions to affect my decision or failed to heed good advice.