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Although the words “mental capacity” elicit many opinions, your child’s mental capacity is one of the most important factors to consider when you decide which form of substitute decision-making is most appropriate – some type of guardianship or powers of attorney. This article will delve into this hazy concept of mental capacity and introduce a construct I call the Mental Capacity Continuum.
Mental capacity refers to your child's ability to perform a task or make decisions. Every adult is presumed by law to have the mental capacity to make their own decisions. Anyone who challenges this presumption has the burden to prove otherwise in court. That’s why obtaining guardianship is a court process. In a later chapter about the guardianship process, we’ll discuss the Physician’s Report. The report is medical evidence you must provide to the court to support your guardianship petition.
There are multiple thresholds of legal capacity, such as medical decisional capacity, the legal capacity to sign a power of attorney for property, the legal capacity to revoke a power of attorney, and the testamentary capacity to sign a valid will, all having different legal thresholds. Furthermore, the legal definition of mental capacity varies depending on state law, county procedures, judges, case law, and other clinical tests.
Broadly speaking, the mental capacity required to sign a valid power of attorney means the person signing the document understands the implications of the document.
Some states have a relatively low mental capacity threshold: The person signing a power of attorney only needs to understand who they are appointing as their agent and why they are appointing the agent. For example, by signing a power of attorney for healthcare, your child must understand they are appointing you so you can speak with their medical professionals and make future medical decisions. Or, your child must know by signing a power of attorney for property that they are appointing you to represent them so you can help them with banking, setting up an ABLE account, speaking with their employer, and so forth.
Some states require a higher mental capacity threshold: For example, some states require to sign a valid power of attorney that the person must have contractual capacity. Contractual capacity is a higher threshold because it takes a higher level of mental capacity to understand the nature and consequences of a contract to have a “meeting of the minds.”
Another practical consideration attorneys consider is whether or not anyone may challenge the validity of a power of attorney. For example, during my 40-plus years of experience as an attorney advising parents with a child with a disability, I have only witnessed someone challenge the validity of a power of attorney signed by an adult child with a disability once or twice. It’s rare for anyone to do so. Your adult child is appointing you (their parent) as an agent. Who is more trustworthy to represent your child than you? Who will challenge a power of attorney naming Mom or Dad as an agent? After all, there aren’t any “mental capacity” police poised to enforce such matters.
Even in the unlikely event someone did challenge the validity of a power of attorney, there are many possible solutions: 1) Avoid the person who does not accept the power of attorney; 2) Make a decision by relying on your state’s Healthcare Surrogate Act; 3) Petition for temporary, plenary or limited guardianship; 4) Contest the challenge in court; 5) Negotiate some other resolution.
Applying these mental capacity standards is subjective. The real question is the capacity to do what? For example, does your child have the mental capacity to fully assess the advantages and risks of a medical procedure? Maybe not. Does your child have the mental capacity to understand that they are appointing you in a power of attorney to have the authority to talk to their doctors to help make future medical decisions? Very possibly, yes.
I always ask parents, "What's your child's reading comprehension like?" For me, reading comprehension is an important indicator. The better your child's reading comprehension, the more likely your child will have the requisite mental capacity to sign valid powers of attorney. Conversely, suppose your child cannot comprehend written material. In that case, your child may not have the requisite mental capacity to sign powers of attorney, and then you would likely petition for a plenary (full) guardianship.
Since state laws vary, I recommend you ask your attorney, “What mental capacity does my adult child need to have to sign a valid power of attorney for healthcare or property?” Your attorney may also recommend a doctor’s or neuropsychologist’s evaluation of your child to help determine whether or not guardianship is appropriate.
The Mental Capacity Continuum
The Mental Capacity Continuum is a construct I use with clients to help them visualize how their child’s mental capacity influences whether guardianship or powers of attorney is most appropriate. Although this concept of a continuum has no medical or statutory significance, it helps my clients better visualize their options.
Picture in your mind a continuum – a long line from left to right.
Left Side of the Continuum
If your child totally lacks the capacity to make their own decisions, your child is on the far left side. In that case, you will likely petition for plenary guardianship because your child lacks the legal mental capacity to sign a valid power of attorney. For example, if your child has a very low IQ and still needs help with self-care like toileting, bathing, and dressing, then you will very likely petition the court for a plenary (full) guardian of the person for your child.
Plenary guardianship is appropriate if the person with a disability lacks total capacity to understand the nature of decision-making, the options, and the consequences; conversely, if the person understands what they want and their various options, plenary guardianship is inappropriate.
Right Side of the Continuum
If your child has a much higher degree of mental capacity to make their own decisions, then your child will be on the right side. In that case, your child will likely sign powers of attorney. For example, if your child is on the autism spectrum and is quite bright, even though your child may have various emotional or social challenges, your child will likely sign powers of attorney.
Do you understand why if your child has a higher level of mental capacity, you will probably not petition for plenary (full) guardianship? You will not receive a favorable result from a guardianship judge if you say, “My child is immature. Although she’s pretty smart, people can easily take advantage of her. She sometimes makes awful decisions. I want to get plenary guardianship.” Judges will generally not allow stripping your child of their legal rights just because, at this moment in their life, your child is young and inexperienced.
Middle Area of the Continuum – The Gray Zone
Suppose your child’s mental capacity is somewhere in the middle between lower and higher mental capacity. In that case, I call this area the Gray Zone because deciding between guardianship or powers of attorney is far less clear. Your child may have partial decision-making capacity. Maybe your child’s self-care is good; she cooks some and has an okay reading capability. Maybe your child is also very social yet naive and too trusting of strangers.
The Gray Zone is wide—many of my client's children with a disability land in this middle area. For example, often, a child with Down Syndrome is in this middle area. If your child is in the Gray Zone, you or your child’s doctor could make a compelling case for the appropriateness of some form of guardianship or powers of attorney.
If your child lands somewhere in the middle, embrace the cognitive dissonance. The decision is difficult for a reason. Two forces – parents’ emotional need to protect their child and honor their child’s legal independence – clash. When in doubt, your attorney may ask for a doctor’s or a neuropsychologist’s evaluation to have an “expert’s” opinion regarding whether or not guardianship is appropriate.
Two Other Options
Besides plenary guardianship (full) or powers of attorney, I did not mention two other options:
One: You could do nothing; you neither petition for guardianship nor have your child sign powers of attorney. The "do nothing" approach is not an effective long-term strategy; you should pick a form of substitute decision-making. However, doing nothing is not quite as dangerous as you may think. Many states have what’s called a Healthcare Surrogate Act. This type of statute states if a person with a disability does not have the mental capacity to make their own healthcare decisions as determined by a doctor(s), then a surrogate can make healthcare decisions. Typically, the first surrogate is a spouse, and if there is no spouse, the parents, then siblings. The Healthcare Surrogate Act serves as a backstop during the gap period – after your child attains the age of 18 but before you become a guardian for your child. Another option when an emergency arises is to petition for temporary guardianship. We’ll discuss temporary guardianship in the chapter on types of guardians.
Two: You could choose limited guardianship and possibly powers of attorney. Limited guardianship is discussed in greater detail in a later chapter about the different types of guardianship.
One final note: The law in some states is slowly evolving away from this concept of mental capacity to focus on whether there is a “basis” for appointing a guardian considering whatever supports are already in place to help the person with a disability. Also, in a later chapter, we will discuss the Supported Decision-Making Agreement.
Although the words “mental capacity” elicit many opinions, your child’s mental capacity is one of the most important factors to consider when you decide which form of substitute decision-making is most appropriate – some type of guardianship or powers of attorney. This article will delve into this hazy concept of mental capacity and introduce a construct I call the Mental Capacity Continuum.
Mental capacity refers to your child's ability to perform a task or make decisions. Every adult is presumed by law to have the mental capacity to make their own decisions. Anyone who challenges this presumption has the burden to prove otherwise in court. That’s why obtaining guardianship is a court process. In a later chapter about the guardianship process, we’ll discuss the Physician’s Report. The report is medical evidence you must provide to the court to support your guardianship petition.
There are multiple thresholds of legal capacity, such as medical decisional capacity, the legal capacity to sign a power of attorney for property, the legal capacity to revoke a power of attorney, and the testamentary capacity to sign a valid will, all having different legal thresholds. Furthermore, the legal definition of mental capacity varies depending on state law, county procedures, judges, case law, and other clinical tests.
Broadly speaking, the mental capacity required to sign a valid power of attorney means the person signing the document understands the implications of the document.
Some states have a relatively low mental capacity threshold: The person signing a power of attorney only needs to understand who they are appointing as their agent and why they are appointing the agent. For example, by signing a power of attorney for healthcare, your child must understand they are appointing you so you can speak with their medical professionals and make future medical decisions. Or, your child must know by signing a power of attorney for property that they are appointing you to represent them so you can help them with banking, setting up an ABLE account, speaking with their employer, and so forth.
Some states require a higher mental capacity threshold: For example, some states require to sign a valid power of attorney that the person must have contractual capacity. Contractual capacity is a higher threshold because it takes a higher level of mental capacity to understand the nature and consequences of a contract to have a “meeting of the minds.”
Another practical consideration attorneys consider is whether or not anyone may challenge the validity of a power of attorney. For example, during my 40-plus years of experience as an attorney advising parents with a child with a disability, I have only witnessed someone challenge the validity of a power of attorney signed by an adult child with a disability once or twice. It’s rare for anyone to do so. Your adult child is appointing you (their parent) as an agent. Who is more trustworthy to represent your child than you? Who will challenge a power of attorney naming Mom or Dad as an agent? After all, there aren’t any “mental capacity” police poised to enforce such matters.
Even in the unlikely event someone did challenge the validity of a power of attorney, there are many possible solutions: 1) Avoid the person who does not accept the power of attorney; 2) Make a decision by relying on your state’s Healthcare Surrogate Act; 3) Petition for temporary, plenary or limited guardianship; 4) Contest the challenge in court; 5) Negotiate some other resolution.
Applying these mental capacity standards is subjective. The real question is the capacity to do what? For example, does your child have the mental capacity to fully assess the advantages and risks of a medical procedure? Maybe not. Does your child have the mental capacity to understand that they are appointing you in a power of attorney to have the authority to talk to their doctors to help make future medical decisions? Very possibly, yes.
I always ask parents, "What's your child's reading comprehension like?" For me, reading comprehension is an important indicator. The better your child's reading comprehension, the more likely your child will have the requisite mental capacity to sign valid powers of attorney. Conversely, suppose your child cannot comprehend written material. In that case, your child may not have the requisite mental capacity to sign powers of attorney, and then you would likely petition for a plenary (full) guardianship.
Since state laws vary, I recommend you ask your attorney, “What mental capacity does my adult child need to have to sign a valid power of attorney for healthcare or property?” Your attorney may also recommend a doctor’s or neuropsychologist’s evaluation of your child to help determine whether or not guardianship is appropriate.
The Mental Capacity Continuum
The Mental Capacity Continuum is a construct I use with clients to help them visualize how their child’s mental capacity influences whether guardianship or powers of attorney is most appropriate. Although this concept of a continuum has no medical or statutory significance, it helps my clients better visualize their options.
Picture in your mind a continuum – a long line from left to right.
Left Side of the Continuum
If your child totally lacks the capacity to make their own decisions, your child is on the far left side. In that case, you will likely petition for plenary guardianship because your child lacks the legal mental capacity to sign a valid power of attorney. For example, if your child has a very low IQ and still needs help with self-care like toileting, bathing, and dressing, then you will very likely petition the court for a plenary (full) guardian of the person for your child.
Plenary guardianship is appropriate if the person with a disability lacks total capacity to understand the nature of decision-making, the options, and the consequences; conversely, if the person understands what they want and their various options, plenary guardianship is inappropriate.
Right Side of the Continuum
If your child has a much higher degree of mental capacity to make their own decisions, then your child will be on the right side. In that case, your child will likely sign powers of attorney. For example, if your child is on the autism spectrum and is quite bright, even though your child may have various emotional or social challenges, your child will likely sign powers of attorney.
Do you understand why if your child has a higher level of mental capacity, you will probably not petition for plenary (full) guardianship? You will not receive a favorable result from a guardianship judge if you say, “My child is immature. Although she’s pretty smart, people can easily take advantage of her. She sometimes makes awful decisions. I want to get plenary guardianship.” Judges will generally not allow stripping your child of their legal rights just because, at this moment in their life, your child is young and inexperienced.
Middle Area of the Continuum – The Gray Zone
Suppose your child’s mental capacity is somewhere in the middle between lower and higher mental capacity. In that case, I call this area the Gray Zone because deciding between guardianship or powers of attorney is far less clear. Your child may have partial decision-making capacity. Maybe your child’s self-care is good; she cooks some and has an okay reading capability. Maybe your child is also very social yet naive and too trusting of strangers.
The Gray Zone is wide—many of my client's children with a disability land in this middle area. For example, often, a child with Down Syndrome is in this middle area. If your child is in the Gray Zone, you or your child’s doctor could make a compelling case for the appropriateness of some form of guardianship or powers of attorney.
If your child lands somewhere in the middle, embrace the cognitive dissonance. The decision is difficult for a reason. Two forces – parents’ emotional need to protect their child and honor their child’s legal independence – clash. When in doubt, your attorney may ask for a doctor’s or a neuropsychologist’s evaluation to have an “expert’s” opinion regarding whether or not guardianship is appropriate.
Two Other Options
Besides plenary guardianship (full) or powers of attorney, I did not mention two other options:
One: You could do nothing; you neither petition for guardianship nor have your child sign powers of attorney. The "do nothing" approach is not an effective long-term strategy; you should pick a form of substitute decision-making. However, doing nothing is not quite as dangerous as you may think. Many states have what’s called a Healthcare Surrogate Act. This type of statute states if a person with a disability does not have the mental capacity to make their own healthcare decisions as determined by a doctor(s), then a surrogate can make healthcare decisions. Typically, the first surrogate is a spouse, and if there is no spouse, the parents, then siblings. The Healthcare Surrogate Act serves as a backstop during the gap period – after your child attains the age of 18 but before you become a guardian for your child. Another option when an emergency arises is to petition for temporary guardianship. We’ll discuss temporary guardianship in the chapter on types of guardians.
Two: You could choose limited guardianship and possibly powers of attorney. Limited guardianship is discussed in greater detail in a later chapter about the different types of guardianship.
One final note: The law in some states is slowly evolving away from this concept of mental capacity to focus on whether there is a “basis” for appointing a guardian considering whatever supports are already in place to help the person with a disability. Also, in a later chapter, we will discuss the Supported Decision-Making Agreement.