A Question of Competence

We often defer to experts to help us make decisions in areas where we have insufficient experience. But, ultimately we make the final decision on what we want to do. This ability to decide our own fate is covered by the legal term, competency. Having competency signifies that you are able to make your own decisions regarding a legally recognized act in a rational manner. Unfortunately, there are medical conditions that can take this ability away from your loved one, such as Alzheimer’s disease. Under such circumstances, it becomes necessary for others to take on the decision making role, and ideally this will be someone who is close enough to understand the choices your loved one would have made if they were capable. To declare that someone has incompetence, it is necessary to conduct a court proceeding. If the court finds that this is indeed the case, then a guardian will be appointed to make decisions on behalf of your loved one. The court will often limit the finding of incompetence to specific tasks, so that as much autonomy is retained by the individual as possible. 

Obtaining Guardianship

To begin the process in New York, you will need to file a claim under Article 81 of the Mental Hygiene Law to the Supreme Court or to the County Court in your county. A court evaluator will be assigned to your case, and will investigate to determine if your loved one needs a guardian, and to what extent. In some cases, only limited power will be granted, and in others the guardian will make all decisions for the individual. Following this, a hearing will be held where a judge will assess the court evaluator’s findings, as well as testimony from friends, family members, care providers, and the individuals themselves. An appropriate guardian will then be appointed if found necessary. A guardian can have their power limited if there are grounds for doing so. A physician can appeal to a court if they feel that the guardian is not acting within the patient’s best interest. To ensure everything goes smoothly it is advised that you retain a lawyer during the process of obtaining guardianship.

A court proceeding is required for a finding of incompetence, but there is another alternative to avoid the potential high costs of such an action. A physician can find a person to lack capacity, where they would not be able to choose or refuse treatment, at which point a surrogate would make such decisions. Capacity differs from competence in that competence is a legal determination that must be decided by a judge, whereas capacity is a clinical determination that only requires a finding by a physician. It is necessary to allow for this lesser standing of capacity, as the judicial system is not designed for quick resolutions, and medical decisions often need to be made very quickly.

The determination of a patient’s capacity lies in the following four areas

  • Ability to evidence a choice
    • This is simply the ability to actually make a decision that can be adequately expressed and interpreted by others
    • It is also necessary that the person retain this ability for as long as the implementation of the choice takes. If your loved one constantly changes their mind, they will fail this condition. Of course an individual is not required to stick to their initial decision, but there cannot be a rapid change in opinion over a matter
    • Repeating the question after a period of time and receiving a reasonable response will demonstrate this capacity
  • Ability to understand relevant information
    • A person must be able to understand what is being told to them, otherwise they will be unable to make a reasoned choice
    • Asking the person to describe in their own words the proposed treatment will demonstrate this capacity
  • Ability to appreciate the situation and its likely consequences
    • This standard goes beyond understanding, and requires that the person base their decision on a weighing of the benefits and risks of accepting and refusing treatment
    • Assessing this standard involves determining if the person appropriately takes into account their own personal beliefs and consequences of their choice
  • Ability to manipulate information rationally
    • The final standard focuses on the process used to make the decision
    • This way the physician can be ensured that the person is using logical reasoning to make their choice, whatever choice that may be

Who Can Become a Guardian/Surrogate?

Once your loved one is found to lack capacity, it is then up to a surrogate to make medical decisions for them. Ideally, your loved one will have already chosen someone to fulfill this role. This person has the title of health care proxy. Planning ahead removes much of the stress during such times of crisis, and you can read about this type of planning in our post about advance directives. If no such documentation exists, then there is a priority list on who qualifies as being a surrogate. A lower priority person cannot be located, or declines the role.

The order of the list is as follows:

  • The spouse (if not legally separated from the patient), or the domestic partner
  • A child 18 or older
  • A parent
  • A sibling 18 or older
  • A close friend

Please see this publication by the New York State Department of Health for information on who qualifies as a domestic partner and close friend. 

The court will appoint a guardian if there are no candidates, or none want to perform the duty. In case of an emergency, a physician can provide treatment without deferring to a surrogate if one is not available within a reasonable time. A physician is still required to follow the wishes stated in an advance directive, so it is imperative that this documentation be up to date, and easily accessible. Allowing for physicians to fulfill this role ensures that there is no inappropriate delay in providing critical medical treatment. 

We all value our autonomy, so remember to only take action towards a finding of incompetence or incapability if you have strong reason to believe this is in your loved one’s best interest. If they are found to be capable and competent you want to let them make their own decisions. It is fine to give them your viewpoint and advice, but do not exert undue pressure. It is important that they be happy and satisfied with their treatment. Talk to your loved one before their health deteriorates so that you can be aware of their wishes. As opinions and laws change, remember to keep open communication with your loved one so that you do not make decisions based on a belief that may have changed. For example, in Canada, new legislation on assisted dying has just been passed allowing those whose death is reasonably foreseeable to die through medical assistance. It is important that you discuss these difficult topics with your loved one so that you can understand their viewpoint, and make the appropriate decision when the time comes.


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