CAPACITY IS NOT A MEDICAL CONCEPT – PART II
Sept. 28, 2021
Is there a Deficit?
First type of deficits identified by Probate Code Section 811:
ALERTNESS AND ATTENTION
Alertness and attention, including, but not limited to, the following:
Level of arousal or consciousness.
Orientation to time, place, person, and situation.
Ability to attend and concentrate.
Second type of deficits identified by Probate Code Section 811:
Information processing, including, but not limited to, the following:
Short- and long-term memory, including immediate recall.
Ability to understand or communicate with others, either verbally or otherwise.
Recognition of familiar objects and familiar persons.
Ability to understand and appreciate quantities.
Ability to reason using abstract concepts.
Ability to plan, organize, and carry out actions in one's own rational self-interest.
Ability to reason logically.
Third type of deficits identified by Probate Code Section 811:
Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
Severely disorganized thinking.
Uncontrollable, repetitive, or intrusive thoughts.
Fourth type of deficits identified by Probate Code Section 811:
ABILITY TO MODULATE MOOD AND AFFECT
Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
What if now the person has been determined to have a deficit, is the patient mentally incapacitated? NOT YET. The patient is PRESUMED to have the mental capacity.
Probate Code section 811(d) states: “The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.”
There must be a CORRELATION between the deficit and the mental capacity required for the specific action that the patient wants to take.
Probate Code section 811 states:
(b) A deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.
(c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment.
Testamentary Capacity Requirements:
Understand the nature of the testamentary act.
Understand and recollect the nature and situation of one’s property.
Remember and understand one’s relations to the persons who have claims upon her bounty and whose interests are affected by the will or trust.
Know how one wants the assets distributed after death.
Probate Code section 812: Does the deficit significantly impair the person’s ability to:
COMMUNICATE the decision verbally, or by any other means.
UNDERSTAND and APPRECIATE:
The rights, duties, and responsibilities created, or affected by the decision;
The probable consequences for the decision maker and others affected by the decision;
The significant risks, benefits, and reasonable alternatives involved in the decision.
What legal documents are important to have when faced with a mental capacity concern: These must be prepared and signed while the person still has legal mental capacity.
Financial Power of Attorney
Advance Healthcare Directive
Authorization to Disclose Health Information
Getting your affairs in order can never happen too early. In the event that you become unavailable or unable to voice our opinion, your surviving loved ones can achieve peace of mind and benefit from knowing your true wishes. Our advice: work with a knowledgeable attorney now to help protect your family's future, assets, and best interests by directing you toward the ideal estate plan that fits your unique needs.