Mental Capacity: Who gets to Decide?


by Alison Fudge, Esq 

Let’s talk capacity. Like many true elder law attorneys, I spend a large part of my time discussing the term “mental capacity.” I honestly believe that capacity is the first and biggest issue concerning the spouses and adult children of aging individuals.

In the maze of aging, all paths ultimately lead back to this basic question: Who gets to decide? If the aging person has mental capacity, the answer is simple: the aging person decides for him or herself and everyone who doesn’t like it is out of luck. If the aging person does not have mental capacity or does not have Full capacity, the situation goes from crystal clear to dark and murky.

So what is mental capacity? In South Carolina, the basic answer is that a person lacks mental capacity if that person is unable to manage his day to day affairs or make major decisions without assistance as a result of advanced age, an illness (such as dementia, heart or kidney failure, or another diagnosis), a physical or mental disability or chronic alcohol or substance abuse.

Notice that I didn’t say that the person is incoherent. I didn’t say that the person is not lucid. Hundreds of cases are filed each year in the Charleston County Probate Court alone which result in individuals being declared to be incapacitated adults. Most of these people are perfectly capable of carrying on a conversation. They can tell you all about their amazing round of golf in 1974 and give you a hole-by-hole synopsis. What they can’t necessarily do is tell what medical diagnoses they have or which medications they take on a regular basis.

They cannot necessarily manage to pay their monthly bills in a responsible manner or take their medications according to the directions without someone reminding or assisting them. They also may not be able to relay to a relative or friend with some degree of accuracy what happened this morning or yesterday afternoon at their appointment with their primary care physician. These are all signs of a capacity issue.

In order to answer the underlying question about who gets to decide, we need to address the capacity issue. Unfortunately, many family members wear blinders or rose colored glasses when it comes to the declining mental capacity of their parents or their spouse. I’ve had meetings in which the wife has vehemently and passionately insisted that her husband was “sharp as a tack.” However, during the same meeting in July of 2015, the same husband informed me that the year was 1989 and that Thanksgiving was a week away. Even after sitting next to her husband and hearing his answers, witnessing his inability to verbally relay his sources of income (never mind the amounts—he literally didn’t know from which sources income was paid into his bank accounts, but rather he believed that it just magically showed up each month), observing his inability to remember when he last ate and when he last bathed, the same wife still insisted that there was nothing wrong with her husband.

This is psychologically completely understandable. However, from a standpoint of managing the aging process and ensuring that physical and care needs are met, willful blindness is devastating.

In these cases, it usually takes an emergency situation, frequently involving law enforcement, for the willfully blind to see. In those cases, the stress and emotional trauma faced by the family as a whole is maximized. Admitting that age and disease have caused problems with respect to the health and independence of a loved one is not a sign of weakness—it is a sign of strength, honesty and concern for the well-being of a vulnerable per-son. These are great qualities for those who want and need to be able to decide.