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1 Florida State University Libraries Electronic Theses, Treatises and Dissertations The Graduate School 2010 Older Clients with Questionable Legal Capacity/Competence: Elder Law Practice and Treating Physicians Marshall B. Kapp Follow this and additional works at the FSU Digital Library. For more information, please contact

2 Older Clients with Questionable Legal Capacity/Competence: Elder Law Practice and Treating Physicians Marshall B. Kapp, JD, MPH Center for Innovative Collaboration in Medicine & Law Florida State University Colleges of Medicine and Law

3 Introduction Issues often arise in elder law practice regarding cognitive and emotional ability to make decisions Competence versus capacity Medical decision making Other personal decision making (e.g., residence) Financial decision making Testamentary capacity

5 Treating physicians* (and their records) are often sought as a source of both factual evidence and expert opinion, and as the basis fo fo e si o sulta ts opi io s, ega di g: Present competence Past competence *Distinguish from evaluations/consultations requested specifically for forensic purposes (to generate expert opinion evidence)

6 Competence affected by conditions seen by treating physicians Dementia Depression Delirium psychoses

7 Competence determination involves the i te se tio of legal do t i e, eha io al s ie e esea h, a d li i al p a ti e a d th ee i te a ti g ele e ts: the pe so, the p o ess, a d the o te t. Co pete e is a so io-legal o st u t.

8 The legal/medical interaction frequently is less than ideal Why? What to do about it?

9 Caveats Not a scientific study Reflections and impressions based on conversations with a convenience sample of physicians

10 Explanations for the Interprofessional Tension Different Issue Identification and Objectives Therapeutic/capacity model (tolerant of u li g th ough, espe t auto o if o ha, result orientation). Treating docs are not looking for, or documenting, legally relevant evidence ; legal status does not matter for making the patie t ette. Effi ie, fle i ilit i getti g the jo do e, add essi g edi al i edia. Do s do not have the data to answer the legal question. v.

11 Forensic or Competence/Legal authority clarification model. Process orientation focused on obtaining certainty about respective rights and duties, through the adversary system if necessary. Attorney bias is based on experience with skewed sample of clients fo ho u li g th ough does ot o k.

12 Physician fears harming the therapeutic relationship by betraying the patient Loss of trust Patient may be worse off because of legal intervention.

13 I toda s f ag e ted HC o -system, the primary care physician does not see the patient much during times of challenge and stress, has no reason to question (let alone document) decision making capacity/competence or patient behaviors during routine visits as long as the patient is reasonably compliant. Therefore, doc often does not have relevant evidence to present.

14 I the ideal ase, the edi al e o d o tai s a detailed, quantitative assessment of cognitive function on the date at issue. Unfortunately, such records are rare. Almost as useful is the medical record that contains multiple quantitative assessments of cognitive function prior to and after the date in uestio But e o ds of this t pe a e also a e.

15 Insufficient training in forensic skills Lots of medical student and resident education on the informed element of Informed Consent (with emphasis on documentation) and on the necessity for a capable patient or else an authorized surrogate, but very little training on clinical capacity/competency assessment skills (how to do it)

16 Limited exceptions Psychiatry residency programs and forensic and geropsychiatry fellowships Geriatric fellowships Neurology residency programs Medical schools affected by geriatrician influence under grants from Reynolds Foundation and AAMC

17 Ph si ia s legal a ieties Free-floating Confidentiality: What constitutes a waiver? Liability risk for negligent evaluation, especially as the state of the a t ad a es

18 Distaste for the adversary system generally, and for cross examination particularly C oss e a i atio is a out o t ol [T]he fo us should not be on the witness, but on the attorney. The witness is nothing more than a trained monkey (a trained, talking monkey that is), o fi i g o de i g the atto e state e ts.

19 Time, hassle, distraction from medical practice Fo e si e aluatio [of de isio al apa it ] is ot for the faint of heart, nor is it a suitable choice for individuals who have an aversion to detail or a low tole a e fo a iguit. Ph si ia s eed to t iage the pape o k. Treating physicians do not get compensated for this task.

20 Addressing the Interprofessional Retain status quo? Tension More training of physicians for this role? ABIM and ABFM are developing geriatric o pete ies to dete i e hethe a olde patient has sufficient capacity to give an accurate history, make decisions and participate in de elopi g pla of a e.

21 Is more training a panacea? Variability in court practices? What else to eliminate in curriculum? Would it overcome the other impediments?

22 Ask the physician decision-specific questions, not a global or open-ended question. What specific areas of function are at issue? In what circumstances and places? Why is the question being asked now? Develop a shared vocabulary

23 Ask physician to support conclusion with short answers to a series of questions that break capacity evaluation into separate data components: Communication ability Comprehension of situation Rational manipulation of information (reasoning) Appreciation of consequences

24 Use the treating physician to help pursue clinical, rather than adversarial, interventions. Clinical interventions may reduce or eliminate the incapacity and make a competence determination unnecessary.

25 Conclusion

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