Key Legal Issues
Capacity is a critical issue across the life span and is a fundamental element of both legal and clinical standards and practice. Capacity may involve many areas of functioning, including for example, physical, mental, cognitive, emotional, and behavioral. It is not a fixed or static condition. People can have capacity for different activities and tasks, and capacity can vary across time, situations and location.
In all states, the law presumes that a person over the age of majority has capacity. The legal aspects of capacity have been extensively explored and described in the context of guardianship of minors, adults with disabilities, and older adults with diminished capacity. State guardianship laws vary in their legal standards for diminished capacity, but the majority of states require that a person has some type of disabling condition that is causing the person's inability to make decisions about and handle critical personal or financial affairs. See American Bar Association Commission on Aging and the Law: Capacity Definition & Initiation of Guardianship Proceedings (As of statutory revisions December 31, 2010).
The concept of capacity also is relevant across the spectrum of legal issues and transactions. State statutory and case law have established standards of capacity for different types of legal transactions, including testamentary, contractual, conveyance of real or personal property, execution of durable power of attorney, and health care decision making. See Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers.
Determining capacity in older adults can be very difficult and often requires gathering information from many sources, including family members, medical care professionals, mental health care professionals, adult protective service workers, and other involved parties. Several tools have been developed to assist judges, lawyers and court-based professionals in assessing the capacity of older persons. Judges, attorneys, and court staff also can help enhance capacity with a number of techniques and accommodations. See Establishment of Guardianships: Determination of Capacity, Elder Abuse Curriculum for State Judicial Educators, Module Two, and the resources listed below.