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Ask the Mental Health Expert Archives 2001-2004

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Legality and Alzheimer's

Q. My mother has been diagnosed with Alzheimer's. My brother has the power of attorney in case she becomes incompetent. What is legally involved? When someone has Alzheimer's, is there any way to measure their ability to maintain their own affairs?

A. First, let me disqualify myself as a legal expert--I'm not, and you would really need to consult an attorney to find out what legal procedures pertain in your mother's case. Different procedures may apply depending on whether your brother has so-called "durable power of attorney", has been named as a healthcare proxy, and what your state laws stipulate. The main things to keep in mind are: 1. Clinical and legal ideas of competency often differ; 2. Competency is never a global term, but always applies to specific acts or procedures; for example, a psychotic patient may be both clinically and legally competent to handle his financial affairs, but not to consent to medication or undergo surgery; and 3. In the final analysis, competency is usually a judicial, not a clinical, determination.

In most durable power of attorney and health-care proxy statutes, the determination of a patient's competence is not spelled out specifically. Usually, the agreement of two physicians that the patient cannot understand the nature and consequences of a particular treatment is, at a minimum, required for the power of attorney to kick in. But, if the patient then expresses a wish contrary to what he or she stipulated in the advance directive, some hospitals may hesitate, even if the patient's doctors believe he or she is not competent. In such cases, the hospital might seek a court order to resolve the situation [for details, see the chapter by Robert Simon MD, in The American Psychiatric Press Textbook of Neuropsychiatry, 3rd ed, 1997].

In truth, as Dr. Simon notes in his book, "Psychiatry and Law for Clinicians" (American Psychiatric Press, 1998): "Competence can be a confusing term because it may be used to mean legal competence, or it may have a broad variety of subjective clinical definitions." One distinction is between incompetence and incapacity: incompetence is a court adjudication, whereas incapacity is a clinical determination. Legal determinations of competency or incompetence are usually very narrowly-based and involve only the most basic elements of mental capacity.

For example, the legal definition of competent to stand trial involves very basic elements like understanding what one is charged with; understanding the function of a judge, jury, and opposing attorneys; and being able to cooperate with one's attorney in one's own defense. As you can imagine, even someone with an early dementing illness, such as Alzheimer's Disease, might meet this minimal standard of legal competency. This is quite different from clinical ideas of competency, which involve more sophisticated criteria for informed consent. For example, to determine if a psychotic patient is competent to agree to take anti-psychotic medication, the clinician needs to assess a variety of questions: does the patient understand he or she has a psychiatric illness? Does he or she understand the nature of that illness? Does the patient appreciate the risks and benefits both of taking the medication and of not taking it? Can he or she appreciate the possible side effects of the treatment, and the risks and benefits of alternative treatments?

In the case of individuals with dementing illnesses, clinicians often do use special rating scales to determine general level of function, ability to carry out daily chores, and overall cognitive capacity. One such scale is the Cognitive Competency Test (Wang, 1987). This evaluates cognitive skills required to maintain safe and independent living. However, it omits areas such as awareness of personal needs.

The fact is, there is no single, clinical test instrument that determines competency in the legal senses of that term. Judges are free to make that determination, even in the face of an opposing view by the patient's doctor--though in most cases, the clinician's opinion carries a good deal of weight. For more information, you might want to contact the Bazelon Center of Mental Health Law (http://www.bazelon.org/). You may also want to contact the Alzheimer's Association (http://www.alz.org/) for more information, as well as support, in this difficult situation.

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October 2001

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