Decisional Capacity

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KEY POINTS

• Decisional capacity is the ability to make decisions for yourself. You may lose this ability if you have a brain injury, mental illness, serious illness that changes your thinking ability such as kidney or liver failure, or as a side effect of some medicines.
• You, your family, and your healthcare provider determine your ability to make decisions about your life, including your health.
• There are two type main types of legal papers that you can create while you are able to make decisions for yourself. One type is to help with money issues and the other is for health care decisions. In these documents, you appoint a person to make decisions on your behalf during the time that you cannot make decisions for yourself.

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What is decisional capacity?

Decisional capacity is the ability to make decisions. When you are able to make your own decisions you can:

• Understand what is happening around you
• Make decisions based on your own values
• Understand what the possible results of your decisions might be
• Communicate your decisions in some way, such as by speaking, writing, blinking your eyes, using Braille, gestures, picture boards, or computers

If for some reason you lose your ability to make decisions for yourself, you will need to have others make important decisions for you. Some decisions can be very hard for someone else to make. While you are still able, you may want to talk to your family about your wishes and values. This will help you and your family if you are unable to make healthcare and money decisions yourself.

What affects the ability to make a decision?

Things that may affect your ability to make decisions for a time include:

• Severe anxiety, depression, or other mental illness
• Side effects of some medicines
• A serious illness such a a heart attack, kidney failure, or liver failure that may change your thinking ability

Your decisional capacity may get better as you recover from an illness or medicine side effects wear off.

Some health problems that may affect your decisional capacity for the remainder of your life include:

• Dementia, which is a gradual loss of the ability to think, remember, reason, and plan
• Brain injury from a stroke or accident

When is loss of decisional capacity a problem?

Questions about your ability to make decisions may come up when:

• You have been injured and need to give consent for surgery or other treatments while in the hospital.
• You have a worsening health problem and need to give consent for treatments.
• You are suddenly very ill and need to give consent for treatments.
• You are in a coma or don’t respond to questions.
• Your release from the hospital is being planned.

How is decisional capacity checked?

There is no one single way to check decisional capacity. Your healthcare provider may ask you to talk about a decision you have made. Your provider checks to see how much you understand about what might happen with your choice and what your other options are.

For healthcare decisions, your healthcare provider will usually ask questions to see if:

• You understand your situation
• You understand your choices
• You can explain the reasons for your choices
• You can describe the risks and benefits of your choices

Your healthcare provider will compare your present and past behavior and choices. The focus is on how you make decisions and not whether other people agree with your decisions. Your healthcare provider will also consider information provided by relatives and other providers about what you have told them and choices you have made in the past.

Is decisional capacity the same as competence?

Decisional capacity and competence are similar, but they do have some important differences. With decisional capacity, you, your family, and your healthcare provider determine your ability to make decisions about your life, including your health. There may be some decisions you cannot make and others you can.

Competence is judged by a court of law. All adults are assumed to be "of sound mind" unless the court declares them incompetent. Unlike decisional capacity, competence is usually all or nothing. If the court declares you incompetent, the court appoints a guardian to act on your behalf. The court can sometimes limit the guardian’s authority just to healthcare decisions or to money matters.

Courts review competency cases only if someone asks for the review. Usually it’s a family member or caregiver who makes the request.

What can I do to help myself?

The more you can plan ahead, the less you leave your life to chance and the courts. There are legal papers that you can create and sign while you are of sound mind and able to make decisions for yourself. There are two type main types of legal papers that are used. One type is to help with money issues and the other is for health care decisions.

You don’t have to be ill to complete these. They include:

• A durable power of attorney (DPOA) for business, property, and financial decisions
• A durable power of attorney for healthcare decisions (DPOA-HC). The DPOA-HC goes into effect if you are unconscious or unable to make decisions.
• A living will (also called an advance directive), which tells family and healthcare providers what type of medical treatment you do and do not want if you cannot make decisions for yourself. For example, you can specify whether you want to be kept alive on a breathing machine or be fed through a tube.

In these documents, you appoint a person to make decisions on your behalf if you are unable to do so. The person named in the DPOA does not have to be the same person named in the DPOA-HC. Make sure that you talk to the person you name as DPOA so that they know what you want them to do. These documents apply only during the time that you cannot make decisions for yourself.

Laws may be different in different states, and it may be helpful to get advice from an attorney who practices in your state.