Capacity and Decision-Making

Most people know someone who, in spite of everyone’s best efforts, continues to make bad choices. The kind of person who just lost their job, but still purchased an expensive car using a high-interest credit card. Or someone who has diabetes, and won’t stop eating sweets. There are many situations where most people would consider the “right” choice is just plain common-sense. The reality is that the majority of people have the right to make those decisions even if they’re obviously bad. There are some situations where someone may voluntarily give decision-making power to a trustworthy person, but how can you tell if someone is actually incapable of making decisions for themselves? Are you prepared when your parents are no longer capable of caring for themselves?

Capacity Is a Sliding Scale 

The term “incapacitated” is commonly used in conversation when talking about someone who can’t follow through with a task, but in the legal world, judging whether or not someone is capacitated to accomplish complex tasks has major consequences. The key to determining whether or not someone has a lack of capacity, is if the person understands where they are and what’s happening around them. There is a sliding scale for determining whether someone is capacitated to make less meaningful decisions like dressing, cooking, and bathing vs. making complex decisions like paying bills, managing property, or conducting business

A prime example of being incapacitated would be someone in a more advanced form of dementia. They may still recognize some people and places, but if there are stretches of time they are unable to account for, or they lose control of their vehicle while traveling and cause injury or destroy property as a result, that could be considered incapacitation. This is not the same as having too much to drink and getting behind the wheel. This is a scenario where their inability to make sound decisions is a persistent and substantial problem rather than a one-time mistake. The impairment of the dementia sufferer is an illness that has a direct effect on their faculties. 

What To Do For Family With Impaired Decision-Making

There are a lot of ethical dilemmas when it comes to determining whether someone is capacitated to make compex decisions and whether it’s appropriate to gain power of attorney as a result. It can be a long and stressful process and requires a determination of incapacitation by a doctor and the willingness of your parent to physically attend. This can be an incredibly emotional time for you and your family. Not only will you have to come to terms with taking responsibility for all decision-making regarding your parent, but they may also be mourning the loss of their autonomy. It’s always preferable to discuss these possibilities while your parents or family members are still of sound mind and make a plan that respects their wishes.

When determining if your loved one is capacitated to tackle the needs of their everyday life, you should always remember to keep their best interests in mind. At Zamora, Hillman, & Villavicencio, we have extensive experience with Estate Planning, guardianship, and probate. For questions or advice about your rights and to establish a plan regarding incapacitation for yourself or a family member, contact Zamora, Hillman, & Villavicencio to schedule a consultation.

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Zamora, Hillman & Villavicencio

Our firm deals with legal matters involving your loved ones, and our familial operation is prepared to give you caring and effective counsel during what might be a difficult or emotional time.

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