Ask an elder-law attorney which decision requires legal capacity—the ability under the relevant legal standard to make that particular choice—and what evidence matters. Also ask which documents remain possible, what support could preserve the person's role, and when guardianship would be necessary. A dementia diagnosis does not establish incapacity, and adults are presumed capable. Capacity applies to a specific decision and may change with time, complexity, or potential consequences, according to the Justice Department's Capacity Resource Guide.
Medical information disclaimer: This article is for general educational purposes only and does not provide medical advice, diagnosis, or treatment. Always consult a physician or other qualified health professional about symptoms, medications, tests, or treatment decisions.
Table of Contents
- Which decision requires capacity?
- What evidence should the attorney consider?
- Which planning documents are still possible?
- Is guardianship necessary?
- How should you prepare for the consultation?
Which decision requires capacity?
Avoid asking only, "Does this person have capacity?" Ask the attorney to identify the exact act under review. A person's ability to make one choice does not settle whether they can make every other choice.
Clarify whether the immediate concern involves: Ask what the person must understand for that particular decision. Also ask when capacity matters: during an attorney meeting, when instructions are given, or when a document is signed. If abilities fluctuate, discuss whether the meeting can occur when the person is most able to participate.
- Making or changing a will
- Giving money or property to someone
- Entering a contract
- Managing finances
- Consenting to health care
What evidence should the attorney consider?
Ask whether the issue needs a clinical assessment, a legal determination, or both. A clinician evaluates functional ability related to a particular decision. Legal incapacity is a legal finding that may restrict rights; a clinical opinion may provide evidence but does not change legal status by itself.
The Justice Department advises that capacity should not rest on one interview, a cognitive-test score, or whether someone appears "alert and oriented." A sound assessment considers functional skills and information from multiple sources, as explained in its Capacity Resource Guide. Ask the attorney what information would be useful. That may include existing assessments, medical contacts, direct observations of changing abilities, and examples of the decisions causing concern. Request an explanation of how each piece of evidence relates to the specific legal task.
Which planning documents are still possible?
Ask the attorney to review every existing document before assuming it is valid, invalid, complete, or sufficient. Capacity requirements can differ by document, so the answer for a will may not resolve the answer for a power of attorney. A durable financial power of attorney can let a trusted agent manage money and property after the person can no longer make or communicate financial decisions.
A health-care power of attorney names someone to make medical decisions, while a living will records treatment preferences, including choices about resuscitation, dialysis, feeding tubes, or ventilation. The Justice Department explains these distinctions in its guidance on guardianship alternatives. For each document, ask: Arrange the legal review promptly enough to preserve meaningful participation. Let the person express preferences and answer questions directly whenever possible.
- What must the person understand to sign it?
- Which powers should be granted, limited, or excluded?
- Is the proposed agent willing and trustworthy?
- Does the document address both financial and health-care decisions?
- What choices should the person record directly instead of leaving to an agent?
Is guardianship necessary?
Ask what less restrictive option could solve the immediate problem. Possibilities may include decision-making support, advance directives, financial powers of attorney, trusts, or an order aimed at a particular risk. Guardianship is controlled by state law and is generally considered a last resort because it can remove a person's rights.
Courts should consider less restrictive measures first, according to the Justice Department's guardianship overview. If someone proposes guardianship, ask the attorney: Request a side-by-side explanation of the proposed guardianship and each available alternative. The comparison should identify who would decide, which rights the person would retain, and what specific problem each option addresses.
- Which decisions actually require court involvement?
- Which rights could a guardianship order remove?
- Could an order cover only specified decisions?
- What medical, psychological, or other evidence would the court require?
- What rights to notice, counsel, a hearing, evidence, and appeal apply locally?
How should you prepare for the consultation?
Bring information that helps the attorney separate a diagnosis from the decision actually at issue. Organize it around concrete choices rather than general descriptions such as "confused" or "declining." Useful items include: Ask who should attend and whether the attorney needs to speak with the person privately. If fatigue, communication difficulty, or fluctuating ability may affect the meeting, request a suitable time, simple explanations, breaks, or another practical accommodation in advance.
- A list of decisions that must be made
- Relevant dates or pending transactions
- Existing wills, trusts, powers of attorney, and health-care directives
- Available clinical assessments and clinician contact information
- Notes describing changes or fluctuations in decision-making ability
