Rights and Risks in Geriatric Capacity Assessment

SPECIAL REPORT: GERIATRIC PSYCHIATRY PART 2

Questions regarding an individual’s capacity to make decisions are frequently raised in geriatric psychiatry.¹ One moment, it is a hospital consult to assess whether a patient can refuse treatment. Next, it is a concerned family member asking whether their father still understands his finances, or a nursing home requesting guidance about a resident’s ability to consent to an intimate relationship. General psychiatrists may be asked to provide contemporaneous evaluations, whereas forensic psychiatrists may be called upon for retrospective reviews, especially in contested estates (Figure 1).² With more families contesting wills, psychiatrists are increasingly being queried about testamentary capacity, the legal standard to make or change a valid will. Capacity evaluations can have effects that ripple across legal rights, family dynamics, housing, autonomy, and the very fabric of a person’s independence.^1,3

When we get it wrong, the consequences are serious.³ At its most extreme, a finding of incapacity can lead to guardianship, stripping an older adult of fundamental rights such as the ability to make medical decisions, manage finances, choose where to live, or marry. Once imposed, it can be very difficult to reverse, requiring formal legal proceedings and substantial evidence of restored capacity.⁴

Although health care consent remains the most common referral, psychiatrists increasingly weigh in on financial decisions, living arrangements, voting, driving, and personal relations.⁵ The guiding principle is to support autonomy whenever safely possible.⁵ That means understanding the specific decision, identifying risks, and exploring accommodations that may allow the person to retain control.

Capacity is not an all-or-nothing concept. It is task-specific, time-sensitive, and affected by internal and external factors.⁶ A person with moderate dementia might choose lunch independently but have trouble with medical or financial complexity. Factors such as depression, grief, misinformation, and coercion can cloud judgment. Psychiatrists must prepare to navigate these complexities in both clinical and legal settings. A structured, compassionate approach helps clinicians protect patients without overreaching.^1,5

The 4 Abilities Framework

The widely used Appelbaum and Grisso framework identifies 4 domains of decision-making capacity: understanding, appreciation, reasoning, and expressing a choice (Table).⁶ A patient should be able to describe their condition (understanding), explain how it affects them personally (appreciation), weigh options (reasoning), and clearly communicate a decision (choice).

Capacity is not about making the right choice. A person may make a decision that others consider unwise, unfair, or emotionally charged, even if they demonstrate these 4 abilities. Clinicians should resist the urge to substitute their values for the patient’s. As long as the decision is made with adequate understanding, reasoning, and communication, it deserves respect, even if it makes others uncomfortable.

Clinicians can use teach-back methods with clear, supportive language to improve the quality of capacity assessments in clinical settings.⁷ Teach-back checks a patient’s understanding by asking them to explain information in their own words, helping clinicians confirm comprehension and clarify misunderstandings in real time. For example: “What did the doctor say about your heart?” or “What happens if you choose not to have the procedure?” These help elicit understanding and reveal where the process may break down.

Capacity and Influence

Not all decisions require the same level of decisional sophistication.^2,6 A simple choice, like refusing a snack, requires minimal reasoning. However, refusing life-sustaining care or signing over property requires stronger reasoning. This is the essence of the “sliding scale concept”: the greater the risk and complexity of the decision, the higher the threshold of decisional capacity required.^2,6

This sliding scale approach (Figure 2) is exactly why capacity evaluations require nuanced clinical judgment: There is no single checklist or cutoff score that can replace expert discernment.² Like suicide risk assessments, capacity determinations involve weighing context, complexity, and subtle cues to reach a defensible, individualized conclusion. Capacity can fluctuate over time or differ across domains, so reassessment may be needed as circumstances change or new decisions arise.

As cognition declines, subtle interpersonal dynamics may unduly influence choices.² Undue influence occurs when a person’s decision is shaped or overpowered by another, often through dependency, manipulation, or subtle coercion. Undue influence is ultimately a legal determination. Nevertheless, it is important for clinicians to recognize the warning signs, as our observations often provide critical insight for legal decision makers. The sliding scale concept applies to undue influence, too. As tougher decisions require stronger thinking skills, individuals who are more cognitively or emotionally vulnerable need extra care to avoid undue influence.

Clinicians play a key role in identifying red flags for undue influence. Frameworks for undue influence, such as the SCAM (susceptibility, confidant, active influence, monetary loss) and IDEAL (isolation, dependency, emotional manipulation, acquiescence, and loss) models, help us organize patterns that may indicate harmful external influence.^1,2,5 Recognizing these risk factors can help clinicians protect patient autonomy.

Capacity vs Competence

Capacity refers to a clinical determination about a person’s ability to make a specific decision at a particular point in time.⁶ It is task-specific and context-dependent. Evaluators must assess capacity functionally (ie, by evaluating the person’s abilities to understand, appreciate, reason through, and communicate about the specific decision in question), rather than relying solely on diagnosis, cognitive scores, or global impressions. A person might competently choose their lunch but lack the insight or reasoning for managing complex investments. Importantly, cognitive impairment does not equal incapacity.

Competence, in contrast, is a legal determination by a judge, usually in guardianship or conservatorship proceedings.¹ Clinicians should avoid the terms competent or incompetent, and instead describe observed behaviors and decision-making abilities.

Though the terms capacity and competence are sometimes used interchangeably, clinicians should focus less on semantics and more on clarifying their role. Staying grounded in the clinical framework helps avoid overstepping into legal territory.

Interpreting Results

Screening tools such as the Mini-Mental State Examination, Saint Louis University Mental Status, and Montreal Cognitive Assessment (MoCA) offer useful context but are not diagnostic for dementia or predictive of capacity (Figure 3).^1,3,5 Education, language, mood, fatigue, and rapport influence screening test scores. Clinicians should avoid rigid cutoffs, as a low score does not mean someone lacks capacity, and a high score does not prove they have it. Screening tools flag concerns, but what matters most is functional decision-making: the practical ability to understand, evaluate, and communicate a choice about a specific real-world issue, evaluated in real time.

Retrospective evaluations, increasingly common in contested wills or trusts, are different.² These require analysis of historical records and collateral information to reconstruct the person’s cognitive and relational context at the time of a past decision.

Case Example

The following illustrates how impaired cognition, shifting relationships, and high-stakes decisions can complicate the assessment of decision-making capacity in older adults.

Psychiatric consultation is requested for “Mr Thompson,” an 84-year-old man with vascular dementia and a history of depression, who was admitted for chest pain and now is refusing a recommended cardiac catheterization. He scores 16/30 on the MoCA, with impairments in executive function, abstraction, and delayed recall. He insists he’s “fine” and defers to his nephew, who recently moved in and now controls his finances. Staff note that Mr Thompson is more withdrawn when the nephew is present, and more engaged in private. When asked about his refusal, Mr Thompson says, “I’m fine. I don’t need any of that,” and defers repeatedly to his nephew, stating, “He said I don’t need it.” Although overt coercion is not evident, Mr Thompson shows impaired appreciation and reasoning. His psychiatrist recommends activating Mr Thompson’s health care proxy and consults ethics and social work for further protective planning.

Concluding Thoughts

Psychiatrists and other clinicians are often the first to recognize signs of impaired or influenced decision-making. By approaching capacity evaluations with curiosity and compassion, we can help protect patient rights and dignity while guarding against preventable harm. As our population ages and the complexity of decisions grows, psychiatric insight will be essential in protecting both autonomy and safety. Mastery of capacity assessment is no longer niche: It is foundational to modern geriatric care.

Dr Reimers is an adult psychiatrist in private practice with expertise in geriatric and forensic psychiatry, an assistant professor of psychiatry at the University of Central Florida, and an adjunct assistant professor of psychiatry at the University of Minnesota.

References

1. Assessment of Older Adults With Diminished Capacity: A Handbook for Psychologists. American Bar Association Commission on Law and Aging, American Psychological Association; 2008.

2. Shulman KI, Cohen CA, Kirsh FC, et al. Assessment of testamentary capacity and vulnerability to undue influence. Am J Psychiatry. 2007;164(5):722-727.

3. Ganzini L, Volicer L, Nelson WA, et al. Ten myths about decision-making capacity. J Am Med Dir Assoc. 2004;5(4):263-267.

4. Cassidy J. Restoration of rights for adults under guardianship. Bifocal. 2015;36(3):63.

5. Elder Justice Decision-Making Capacity Resource Guide. Elder Justice Initiative. 2022. Accessed August 15, 2025. https://www.justice.gov/d9/fieldable-panel-panes/basic-panes/attachments/2022/08/10/decision_making_capacity_resource_guide_corrected_11.1.22.pdf

6. Appelbaum PS. Clinical practice. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007;357(18):1834-1840.

7. Ha Dinh TT, Bonner A, Clark R, et al. The effectiveness of the teach-back method on adherence and self-management in health education for people with chronic disease: a systematic review. JBI Database System Rev Implement Rep. 2016;14(1):210-247.