Consent requires individuals to be able to understand the transaction or activity, make judgments about it, and decide if it is something they want to do. Whether a person has given consent is a significant factor in determining the legitimacy of a wide range of actions related to that person's life and activities. For adults of any age, consent is most commonly associated with health care decision making. Consent also is frequently an issue in determining whether a crime has been committed. Consent is an important issue in legal transactions, such as transfers of property through gifts, wills and trusts, control over a person's affairs (e.g., durable power of attorney and guardianship), and business transactions (e.g., contracts for services or to buy or sell property). See Elder Abuse Curriculum for State Judicial Educators, Module Two for additional information and resources about consent and its role in crimes against older persons.
A critical element of consent is whether the person has the capacity to consent. The capacity of older persons to consent is historically most commonly applicable in the provision of adult protective services (APS). APS statutes typically define capacity to consent as the ability to understand the facts related to their person or property and to make a rational decision based on those facts. In many states, a decision to refuse services does not suffice as a reason to find a person lacks capacity to consent. For example, in Tennessee,
"Capacity to consent" means the mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts. A decision itself to refuse services cannot be the sole evidence for finding the person lacks capacity to consent; Tenn. Code Ann. § 71-6-102(4).
Capacity to consent also plays a critical role in determining whether crimes against property or the person have been committed. Examples of crimes against property include theft, fraud, and deceptive practices (e.g., contracts for services, contracts to buy or sell property, solicitations for contributions). One of the most problematic areas for determining capacity to consent is in intimate crimes against the person such as sexual assault and rape. The incidence of alleged sexual offenses is growing for elders living in both the community and in long term care facilities.