• What is Medical Capacity?

    Photo: Group Think in Healthcare Decision Making. Source: Austrian National Library

    Sam from law school flew in from Tucson with his N95 Mask in hand to visit his Aunt Tilda in the hospital. Sam asked me to prepare a healthcare power of attorney (POA) and a financial POA for Aunt Tilda to sign on his arrival. I told Sam it would be no problem, but since talking with him two days ago, Aunt Tilda’s condition has declined. She is now on a ventilator and improving, but no one is sure what will happen next. To manage Aunt Tilda’s comfort, the doctors are keeping her sedated.

    An individual cannot sign a legal document if they do not understand what they are signing – it is known as “informed decision making or consent.” Capacity forms the basis of informed consent.
    So, with Sam’s arrival and remembering our story from last week, determining capacity is step one and key as to the next steps.

    What is medical capacity?
    Like many things in life, there is no one-size-fits-all answer here. “Capacity” in healthcare is about medical decision-making and an individual being able to understand the situation and choices to be made, and then make an informed decision. For example, understanding the benefits and risks of a treatment or procedure before saying yes or no to receiving it. The four key components for a clinician to determine medical capacity are:

    • Communicating a choice
    • Understanding
    • Appreciation
    • Rationalization/reasoning

    There are differences and nuances between medical capacity and legal competence. The main differences are that medical capacity is determined by a physician and is a functional assessment, while legal competence is a global assessment made by a judge in court.

    Aunt Tilda is currently sedated and on a ventilator, therefore she likely does not currently have the capacity to make a healthcare decision. The hope is that she has previously discussed and expressed her wishes to both her doctors and to her family, and ideally, signed a healthcare POA authorizing an agent (surrogate) to act on her behalf.

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  • Who Can Help Aunt Tilda In the Hospital?

    <span>Photo by <a href="https://unsplash.com/@marceloleal80?utm_source=unsplash&amp;utm_medium=referral&amp;utm_content=creditCopyText">Marcelo Leal</a> on <a href="https://unsplash.com/s/photos/hospital?utm_source=unsplash&amp;utm_medium=referral&amp;utm_content=creditCopyText">Unsplash</a></span>My phone started ringing just as I unlocked my office door.

    The call was from Sam, a friend I met in law school. After earning his J.D., Sam chose to stay in Arizona to practice law while I somehow made my way to Maine and, ultimately, to a small mid-central community to build an Elder Law practice. After all, with a nursing background, 20+ years advising healthcare organizations, some guardianship work, and running a small, family-owned business, I was sure I had all the tools I needed!

    Sam’s Aunt Tilda was living in Belfast, Maine, and had just been admitted two days ago to the local hospital with shortness of breath, a slight fever, and a vague sense of not feeling well. The results of a COVID test were pending, but she was admitted and, up until very recently, resting comfortably. Late the night before, her shortness of breath had increased, her fever was up, and, according to the doctor, there were some “troublesome areas” on her chest x-ray.

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  • Test article for Elder Law And Estate Planning

    Test article for Elder Law And Estate Planning

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