Legal obligations when caring for people with diminished capacity

Caring for individuals with diminished legal capacity in the aged care industry provides a vital support network. However, providing aged care services and working with those with reduced legal capacity comes with significant responsibilities.

Whether you are an aged care services professional, an aged care provider or a family member of an individual in care, understanding the obligations regarding the provision of care is essential to ensuring the wellbeing, safety and protection of the rights of these vulnerable individuals.

Defining mental capacity

Mental capacity isn’t a one-size-fits-all concept; it’s highly nuanced and contingent on various factors. An individual may have the mental capacity to make decisions in certain realms, such as personal matters or health care while lacking that skill in more complex domains, for example financial and legal arrangements.

Additionally, mental capacity can be domain-specific, meaning that an individual may be able to consent to a specific short-term procedure, such as a blood test, but be incapable of providing informed consent for a significant medical procedure. Capacity can also fluctuate over time, influenced by factors such as the time of day, medication or alcohol.

Indicators of incapacity encompass a range of characteristics, including:

• not comprehending the issues at hand;
• an inability to propose viable solutions;
• failure to appreciate reasonably foreseeable consequences, decision-making rooted in delusions, or
• significant cognitive impairment.

An individual’s decision-making capacity may be assessed using formal tools.

Appointing a guardian

When an individual lacks the appropriate capacity to make informed decisions, their family, carer or support person may seek appointment as their legal guardian. In this role, they may be able to or be required to make legal decisions for the individual on their behalf, such as entering into contracts.

However, simply having a disability or being unable to make decisions at a specific time is not sufficient grounds to warrant the appointment of a guardian. An individual must have a demonstrated need to have a guardian appointed and pass various threshold questions before a decision-making body will appoint a guardian. Determining mental capacity and appointing guardians are complex and multidimensional assessments with different legal and medical considerations.

Advanced care directives

It is essential to determine if an individual has an appointed power of attorney (POA) to oversee their finances/medical directives or if an advanced care directive is in place.

An advance care directive contains information about the individual’s wishes regarding their health care and treatment should they be unable to make or convey decisions themselves. A directive written on paper and not witnessed is still legally enforceable. However, signed advance care directives are generally recommended.

Ideally, the individual should make their family, support person or other personal contacts aware of the advanced care directive. If a POA or guardian is appointed, an advanced care directive must be referred to before making medical or health decisions about an individual’s treatment or care.

Assisted decision-making

In some instances, an individual can make decisions with the support of others, a concept known as assisted decision-making. Before prematurely concluding that an individual has a diminished mental capacity, exhaustive efforts should be made to provide the necessary support during their decision-making process.

Appointing substitute decision-makers or guardians should only be pursued as a last resort when all other avenues for support have been explored. Understanding these nuanced aspects of mental capacity is paramount to ensuring the legality and validity of contracts, safeguarding the rights of individuals with varying cognitive abilities.

Capacity decline

When assessing capacity decline, it’s essential to remember that neither a lack of capacity nor diagnoses alone warrant the appointment of a formal substitute decision-maker or guardian. Autonomy should be prioritised, with capacity being decision-specific. After exploring alternative approaches like supported decision-making and identifying specific needs, guardianship orders may be considered for distinct functions.

Duty of care and dignity of risk

Providers should also remember that they have an overriding duty of care to vulnerable clients. They need to follow all regulations and standards when providing care. Clients should also be given the dignity of taking risks, and providers should not assume diminished legal capacity purely because they do not understand or agree with decisions made by their clients. Therefore, it is the responsibility of the aged care provider to work collaboratively with the individual, respect their decisions and ensure a thorough understanding of associated risks, while striving to maintain the individual’s independence and quality of life.

Key takeaways

Working with individuals with diminished legal capacity in aged care carries important responsibilities. It is essential to recognise that capacity is situation-specific and subject to fluctuations.

Disabilities or medical conditions do not automatically imply an absence of decision-making capacity. The essence of working with people with diminished legal capacity lies in acknowledging the intricacies of mental capacity, which can fluctuate. To best assist individuals who may have diminished legal capacity, comprehensive and case-specific assessment should be carried out, prioritising an individual’s independence while balancing maintaining a safe quality of life.

Jordan Bramis is a lawyer for LegalVision.

Image credit: iStockphoto.com/grandriver