Capacity and competence are two terms that are often used interchangeably to describe a person’s ability to understand their circumstances and make decisions. Competence is a legal term that determines whether someone is “duly qualified: having sufficient capacity, ability or authority.” In legal terms, you either have it, or you don’t, there is no gray area. Capacity, on the other hand, is a medical term related to the “cognitive ability to understand the nature and effects of one’s actions; ability to exercise choice or informed consent.”
In most states, “capacity” is the preferred term, defined as “sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose and consequence of any act or transaction into which one proposes to enter.” In other words, can one:
- Understand information given
- Retain the information given
- Balance and weigh options
- Communicate the decision
One big myth about capacity is that it is “all or nothing,” and that once lost, it is never regained. The truth is that capacity can vary from domain to domain – someone may be having difficulty making financial decisions, yet may be perfectly capable of making medical decisions. Capacity can also be dependent on time of day – in the mornings someone may have a some memory of decisions made in the past, but in the evening, those memories may be more fuzzy.
Lack of capacity stems from a variety of sources: stroke, brain injury, dementia, developmental/learning disability, substance abuse, or mental health condition. Some of these may be treatable, causing a person to regain capacity. Typical causes of pseudo-dementia should be investigated if someone is experiencing symptoms, as they can sometimes be reversed:
- Underactive thyroid
- Vitamin deficiencies (B-12 in particular)
- Depression
- Brain tumor
- Medication reactions
- Infections (urinary/UTI, pneumonia, flu)
- Dehydration or malnutrition
- Hypoxia (poor lung & heart function)
Capacity is broken down into several types, and people often lose capacity in one or two areas, but still have capacity in the others:
- Medical Consent Capacity
- Sexual Consent Capacity
- Financial Capacity
- Testamentary Capacity
- Driving Capacity
- Independent Living Capacity
- Capacity to Withstand Undue Influence
An individual’s primary care physician is often called upon to determine capacity broadly in the areas of medical consent and/or financial decision-making. Elder Law and Estate Planning attorney’s may determine one’s testamentary capacity. However, when one’s capacity is questioned in a number of areas, and an individual’s capacity is difficult to determine for whatever reason, a neuropsychologist can complete a neuropsychological evaluation that will help provide answers.
