Decisional capacity in theory and practice: Legal process versus 'bumbling through'

Abstract

The reform of guardianship law and practice remains an active topic of interest for service providers, policy makers, and advocates involved with older persons. Guardianship is a legal device designed to protect persons who lack the cognitive and emotional capacity to make their own life decisions. However, for most 'grey zone' individuals and even for many who are rather clearly and severely mentally disabled, the capacity issue never gets formally raised and the legal process of guardianship (or placement in a formal guardianship diversion program) never gets invoked. Instead, the various parties generally 'bumble through' extra-legally as best they can. When the capacity issue does get raised formally, it often is done so as a matter of legal self-protection for a health care provider or financial institution, rather than primarily for the ward's benefit. The central policy issue to be debated is whether we ought to be encouraging or discouraging extralegal, bumbling through-type handling of persons with questionable capacity rather than initiation of formal judicial involvement or a formalized guardianship diversion program. A closely related issue is what we ought to be teaching health care providers, financial officers, and other third parties who in reality are usually the ones who initially decide whether the formal guardianship system should be initiated for a particular person.