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A Conceptual Model and Assessment Template for Capacity Evaluation in Adult Guardianship

Correspondence: Address correspondence to Jennifer Moye, VA Medical Center, 940 Belmont Street, Brockton, MA 02301. E-mail: jennifer.moye{at}va.gov

	Abstract

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Purpose: We develop a conceptual model and associated assessment template that is usable across state jurisdictions for evaluating the independent-living capacity of older adults in guardianship proceedings. Design and Methods: We used an iterative process in which legal provisions for guardianship and prevailing clinical practices for capacity assessment were integrated, through expert group consensus and external review by legal and health care professionals, to form a conceptual model and template. Results: The model and template provide a structure for conducting and documenting a capacity evaluation in guardianship by using six assessment domains of interest to the courts: (a) medical condition, (b) cognition, (c) functional abilities, (d) values, (e) risk of harm and level of supervision needed, and (f) means to enhance capacity. The template also addresses the participation of the person in the guardianship hearing, confidentiality and privilege issues, and certification by the examiner. An online version of the template can be adapted to address specific jurisdictional requirements. Implications: A conceptual model and evaluation template provide a useful cross-jurisdictional format for conducting and documenting capacity assessments of older adults in guardianship proceedings. The template may be particularly useful to clinicians for providing courts with information to support limited guardianship orders.

Key Words: Capacity • Competency • Dementia • Guardianship

Clinical Evaluation in Adult Guardianship
Judicial determination of capacity is a crucial component of all guardianship proceedings. Each state, through its statutes and case law, sets forth legal definitions and procedural requirements for determining an individual's capacity (Anderer, 1990; Sabatino & Basinger, 2000). There is enormous variability in the role, scope, and format of clinician capacity assessment in these provisions. Currently, 30 states require a clinical evaluation of capacity prior to guardianship proceedings, 15 states leave this decision to the discretion of the court, and 5 states provide no statutory direction. Statutes in only 23 states provide guidance concerning the information needed in a clinical evaluation for guardianship (Mayhew, 2005).

In recent years, the concept of capacity in guardianship has moved away from a global, "all or none" construct toward a more finely tuned, functional definition (Moye, 2003; Sabatino & Basinger, 2000). For example, in principle, a person may lack the capacity to handle financial affairs but still retain the capacity to make health care decisions or to vote in elections. In response, the idea of "limited guardianship" has emerged, in which judges craft orders to match the functional strengths of the individual: preserving autonomy in areas of retained capacities and delegating to limited guardians those areas of lost capacity (National Guardianship Network [NGN] Members, 2004). Hence, clinical evaluations are increasingly complex and increasingly crucial to preserving the autonomy and rights of older adults. The Uniform Guardianship and Protective Proceedings Act (UGPPA; National Conference of Commissioners on Uniform State Laws, 1997), a model statute for adult guardianship, recommends detailed functional evaluation by physicians, psychologists, or other qualified professionals, but it does not describe what is meant by "functional evaluation." Currently, 16 states require functional assessment in guardianship (Mayhew, 2005).

Current clinical assessment in guardianship proceedings has received considerable criticism. Capacity evaluations for guardianship have been found to be "sketchy" and "substandard," with written descriptions that provide limited functional data and include conclusory findings (Bulcroft, Kielkopf, & Tripp, 1991; Dudley & Goins, 2003; Moye, et al., in press), often resulting in plenary orders. In part, clinicians have lacked conceptual models and instruments for assessing capacity in guardianship. Clinicians may accordingly be confused about the conceptual basis and standards for incapacity; for example, they may believe that an action that goes against medical advice, or that neurological or psychiatric diagnosis itself, indicates incapacity (Ganzini, Volicer, Nelson, & Derse, 2003). In the absence of specific training on capacity standards, judgment agreement between physicians has been near chance (57% agreement; = 0.14; Marson, McInturff, Hawkins, Bartolucci, & Harrell, 1997).

Need for a Unifying Capacity Model and Assessment Template in Guardianship
There is currently a pressing need for a practice model that can help inform capacity determinations across jurisdictions and that is understandable to both legal and health care professionals. However, communication between legal and health care professionals is hindered by the different language used in respective disciplines for similar concepts. Because of this, a coalition from the National Academy of Elder Law Attorneys, the National Guardianship Association, and the National College of Probate Judges has recommended dialogue between legal and medical professionals about diminished capacity and the creation of templates for multidisciplinary assessments of capacity (NGN, 2004). Such templates should be founded ideally on a conceptual model of capacity evaluation in guardianship that integrates sound legal approaches to capacity within guardianship with best practices in clinical capacity assessment. In this article we respond directly to the recommendations of national guardianship organizations by describing the development of a conceptual model and evaluation template for assessing capacity in guardianships of older adults.

	Methods

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Specific Aims
Our goals in the project were to develop (a) a conceptual model for capacity evaluation of older adults in guardianship proceedings that is understandable to clinical and legal professionals and usable across jurisdictions, and (b) an assessment template that operationalizes this framework for clinical evaluation. The model and template are not intended as a practice standard, but rather as a tool that clinical and legal professionals may find useful in communicating about capacity and that would improve the quality and consistency of clinical evidence. We restricted the project to capacity evaluation within the guardianship process, as approaches to capacity determination vary according to the specific legal capacity in question. In addition, the project focused only on older adults with late-onset neurological or psychiatric illness, excluding mental retardation and developmental delay, as some states have separate statutes and evaluation proceedings for adults with these latter diagnoses.

Definitions
Guardianship
In some jurisdictions, guardianship encompasses decisions regarding the person and the estate; in other states, guardianship is used for the person only, whereas conservatorship is used for the estate; other jurisdictions apply these terms differently. In this project we follow UGPPA conventions in which the guardianship model and template will refer to guardianship as involving decisions regarding the person (an adult), with financial decision making included as one relevant functional domain.

Capacity
The term capacity is used in both clinical and legal settings. In legal settings, it may refer to a lawyer's assessment of a client's ability to conduct legal transactions—or to a judicial determination of a person's legal abilities to make decisions or perform certain functions. In clinical settings, it refers to a clinician's opinion of a person's abilities to make decisions or perform certain functions. Although a clinical capacity opinion is not a legal finding, it often serves as important evidence in legal proceedings.

Approach
The conceptual model and assessment template for capacity in adult guardianship were developed as part of a dialogue between legal and clinical professionals in the American Bar Association (ABA) Commission on Law and Aging and American Psychological Association (APA) Assessment of Capacity in Older Adults Working Group (American Bar Association Commission on Law and Aging and American Psychological Association, 2005, 2006). From the APA, members from the Committee on Aging, as well as experts in the field identified by those members, participated; support and input was received from the APA Committee on Legal Issues and other member groups as detailed in Table 1. From the ABA, staff attorneys from the Commission on Law and Aging participated, as well as expert elder law attorneys identified by the staff members. A judicial advisory panel composed of three representatives from the National College of Probate Judges also participated. The working group was initiated after it was recognized that both psychologists and lawyers are asked increasingly to evaluate the capacity of older adults and were seeking guidance in this process.

	Conceptual Model

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The final conceptual model includes six elements as subsequently described here.

Medical Condition That Produces Functional Disability
Documentation of the relevant medical diagnoses is a key element in capacity determination, as it is an important causative factor explaining any functional disability (e.g., dementia as "causing" a problem managing medications). Historically, many state statutes used the vague term mental disability as a sufficient disabling condition, and some opened a very wide door by including advanced age and the catch-all or other cause. Such amorphous and discriminatory labels invited overly subjective judicial determinations. Therefore, it is important to determine the specific problems causing any observed cognitive or functional disability. Twenty-two states use specific categories of disease (e.g., "mental illness," "physical illness," or "chronic use of drugs or alcohol"). However, the exact extent to which courts are seeking and obtaining information on specific, well-characterized psychiatric or neurologic disorders is unknown. A wide range of neurological and psychiatric conditions may impact capacity with aging, such as Alzheimer's disease or other forms of dementia, stroke, Parkinson's disease, traumatic brain injury, schizophrenia, and bipolar disorder (Dymek, Atchison, Harrell, & Marson, 2001; Kim, Karlawish, & Caine, 2002; Moye, Karel, Azar, & Gurrera, 2004).

Some conditions—such as delirium or depression (McAvay et al., 2006)—may be temporary and reversible, and as they improve so too could capacity. Legal and judicial professionals may not be aware of the specific prognoses associated with different diagnoses. Thus, a listing of the current medical diagnoses is not sufficient. A description of the prognoses, an indication that temporary causes of mental impairment have been ruled out, and consideration of the impact of medications and other mitigating factors (such as stress from a recent death) are important in documenting the cause of any functional impairment.

Cognition
Cognitive functioning is an equally important element in capacity determination, as cognitive dysfunction associated with neurocognitive illness is associated with diminished capacity (Gurrera, Moye, Karel, Azar, & Armesto, 2006; Marson, Chatterjee, Ingram, & Harrell, 1996). The UGPPA defines cognitive impairment associated with incapacity as existing in an individual who "is unable to receive and evaluate information or make or communicate decisions" [;102 (5)]. Cognitive functioning is a component of statutory standards for capacity in many states (Sabatino & Basinger, 2000). Cognitive domains relevant to capacity evaluation and commonly assessed in neuropsychological or cognitive assessment (Lezak, Howieson, & Loring, 2004) include those described in Table 2. Although psychiatric and emotional disturbance is not necessarily a cause of capacity impairment, the extent to which severe psychiatric and emotional disturbance impair cognitive functioning is critical to know (Grisso & Appelbaum, 1995) and is detailed in Table 3.

Until recently, the everyday functioning tests found in state laws were fairly vague and subjective, such as "incapable of taking care of himself" (The General Laws of Massachusetts, 1999); "unable to provide for personal needs and/or property management" (N.Y. Mental Hygiene Law, 1999); or "incapable of taking proper care of the person's self or property or fails to provide for the person's family" (Ohio Revised Code, 1999). Many states have now set a higher and more objective bar for weighing functional behavior by focusing only on one's ability to provide for one's "essential needs," such as "inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety" (Idaho Code, 1999; Minnesota Statues Annotated, 1998; N. H. Revised Statues Annotated, 1999).

Functional assessment is a common component of gerontological assessment and an essential component of dementia diagnosis (Loewenstein & Mogosky, 1999). Clinicians often categorize functional abilities into the activities of daily living, or ADLs (e.g., grooming, toileting, eating, transferring, and dressing) and the instrumental activities of daily living, or IADLs (e.g., abilities to manage finances, health, and functioning in the home and community). We note the specific categories of functioning identified by the working group and judicial advisory panel as especially relevant to guardianship proceedings in Table 4.

The importance of individual values is highlighted in several key clinical and legal sources. The seminal 1982 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research defined capacity to include "the possession of a set of values and goals," which is foundational to comparing alternatives in decision making. Similarly, the ABA's Model Rules of Professional Conduct (American Bar Association, 2003) for lawyers describe factors to be balanced in the determination of capacity to include "the consistency of a decision with the known long-term commitments and values of the client" (rule 1.14, comment 6). In addition, the VA Capacity Assessment Guideline (Department of Veterans Affairs, 1997) recommends a clinical interview to determine "the patient's beliefs and values on the specific capacity issues in question" (p. 10).

Knowledge of values is important not only in determining capacity but also in the guardian's ongoing decision making and in development of any guardianship plan—the set of proposed steps the guardian will follow in providing for care of the incapacitated person. The UGPPA provides that a guardian must "consider the expressed desires and personal values of the [individual] to the extent known to the guardian" (314(a)). We describe some core values identified by the working group that may affect the individual's preference for who is named guardian, as well as preferences that underlie medical decisions, financial decisions, and living arrangements, in Table 5.

An analysis of risk is not merely a consideration of the condition and its effects; it also takes into account the environmental supports and demands of the individual (Grisso, 2003). Strong social and environmental supports may decrease a person's risk whereas lack of supports may increase it. For example, it may make a real difference whether the person has a caring family, is in a supervised setting, or is surrounded by a familiar community network (Lawton, 1982). The level of supervision recommended by the clinician and the legal interventions determined by the judge must match the risk of harm to the individual and the corresponding level of supervision required to mitigate such risk. In some cases, the risk of harm is low and the need can be addressed through a less restrictive alternative or limitation to guardianship. In other cases, less restrictive alternatives have failed or are inappropriate, and a plenary guardianship is necessary to protect the well-being of the elder.

Means to Enhance Capacity
Guardianships are intensely intrusive legal interventions. Nevertheless, in the best of situations, guardianship will protect the individual's well-being, promote his or her values, and maximize the individual's functioning. Clinical and legal professionals must therefore be vigilant in finding ways to enhance capacity, and thus eliminate the need for or limit the scope of the guardianship. These include practical accommodations (such as vision aids, medication reminders), as well as medical, psychosocial, or educational interventions (such as physical or occupational therapy, counseling, medications, or training). The mere existence of a physical disability should not be a ground for guardianship, because most physical disabilities can be accommodated with appropriate medical, functional, and technological assistance directed by the individual (Hommel, 1996).

Clinical recommendations for intervention bear upon many aspects of the guardianship process (Quinn, 2004). These recommendations may indicate how to maximize participation in the hearing, such as with auditory amplification or documents in large type. Further, if improvement of capacity is possible with treatment for underlying conditions, clinical recommendations may guide the judge in deciding when to hear the case again. For example, if the patient is in a postoperative delirium but decisions must be made about care (in the absence of next of kin, etc.), then a judge may want to review the need for the guardianship after the delirium clears. Similarly, if a guardianship is sought involving treatment for an acute psychotic disorder, a judge may want to review the need for guardianship after treatment. Finally, clinical recommendations may directly inform the guardian's plan of care.

	Assessment Template

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The final version of the model template is shown in Appendix A. In the model template we attempt to balance comprehensiveness with efficiency. Borrowing from formats on existing templates, the model uses a combination of headings with space for narrative description and check boxes to provide at-a-glance summaries. The template has sections for each of the six model elements. The diagnostic section includes a place to list the physical and mental diagnoses, the medications and whether they may impact functioning, and both reversible and mitigating factors that may cause confusion. The cognitive section has three broad categories: (a) general level of alertness or consciousness, (b) cognitive abilities, and (c) impact of emotional and psychiatric factors. The everyday functioning section is broken into ADLs and four IADLs. Finally, there are sections on values and preferences, risk of harm and level of supervision needed, and treatments. A seventh section provides a place for the clinician to comment on the individual's attendance at the hearing. A final certification section provides space for the clinician to describe his or her discipline, the approach used in completing the form, whether the individual was informed about privilege, and any tests used. Because clinicians and courts may have specific jurisdictional requirements, we have made an online version of the template available in word processing format (www.abanet.org/aging or www.apa.org/PI/aging), with permission given to modify the form according to local practice needs. Supplemental forms are available online to describe the specific areas described in Tables 2–5.

	Discussion

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Older adults are increasingly subject to guardianship proceedings (Quinn, 2004), and this number is expected to rise in coming decades with the ever-growing geriatric population. Legal and clinical concepts of capacity under guardianship have evolved to recognize that individuals may manifest discrete functional strengths and weaknesses, and that courts should carefully match these functional abilities through the use of limited guardianship or less restrictive alternatives to guardianship (NGN Members, 2004). The avoidance of guardianship when not necessary, and the successful application of limited guardianship when appropriate, depends largely upon the provision of expert clinical testimony to the courts by clinicians. Clinical reports are of extremely high consequence, particularly in courts that do not utilize court investigators or counsel for the allegedly incapacitated person, especially given that the subject of the petition is rarely present at the hearing (Moye, Mlinac, Wood, Wood, & Edelstein, 2006).

Historically, physicians provided clinical documentation for adults in guardianship proceedings. Currently, 23 states provide for the involvement of psychologists or other mental health professionals (Mayhew, 2005). Such testimony is often in the form of a written report in which the clinician describes the patient's clinical status to the court. Ultimately, the guardianship order, and resulting retention or removal of individual rights, hinges on the quality of information provided by the clinician and others who testify to the individual's abilities.

The task for the health care professional of providing information to the courts is onerous. There are competing demands on clinical time and unclear sources of payment for clinical evaluation for the purposes of guardianship. Often petitioners who are family members may ask the clinician to provide the written report as part of usual care. When additional evaluation is needed, state courts tend to have limited funds, if any, for such evaluation.

It may be challenging for clinicians to translate and organize clinical knowledge into a format usable by the courts. Clinical and legal professionals approach the concept of capacity from different conceptual frameworks (i.e., medicine vs the law) and utilize different terminology. Clinicians may not be knowledgeable about legal processes and provisions, whereas lawyers and judges may be similarly ignorant about the meaning of clinical diagnoses and tests. Judges may not be clear about what information they need to construct limited guardianship orders and to establish appropriate monitoring plans.

Templates for guardianship evaluation that are meaningful to clinicians and courts may provide one cost-effective approach addressing these challenges (NGN Members, 2004). In this article we describe an effort by a team of psychologists, lawyers, and judges to develop a conceptual model and template that is mindful of both statutory frameworks and clinical concepts; is cross-jurisdictional; and responds to the NGN recommendations. We propose a six-part conceptual model for capacity evaluation in adult guardianship: (a) medical condition that causes functional disability, (b) cognition, (c) everyday functioning, (d) values and preferences, (e) risk of harm and level of supervision needed, considering environmental supports, and (f) means to enhance capacity.

Although more elaborate frameworks can be utilized, this six-part model describes a minimal set of factors important to the court that reflects statutory frameworks, prevailing probate court standards, and existing clinical models for capacity in guardianship. The template operationalizes this model for clinicians and the courts and offers a way to unify thinking about capacity across jurisdictions. We also hope the template may help to make the process of crafting limited orders more feasible.

The template focuses specifically on the assessment of the allegedly incapacitated person by the clinician. It is not meant to supplant the total investigatory process by the court or other components of testimony the court may hear and consider in determining guardianship. For example, ideally a guardianship case is screened before it is heard to determine the triggering factors, the social situation (e.g., are there reliable family or friends that would be both available and willing to provide support or assistance), and the potential appropriateness of using less restrictive alternatives to guardianship (such as durable powers of attorney, in-home assistance, or elder services; American Bar Association Commission on Law and Aging and American Psychological Association, 2006). The template includes a place for the evaluator to describe the social system and to note whether less restrictive alternatives may be appropriate to address the needs identified in the clinical evaluation. We hope the template can improve communication between health care professionals and the courts about the clinical evaluation process, but the template, in and of itself, cannot solve all the concerns that have been identified in the adult guardianship process, such as lack of screening, inadequate funding of court investigators, and insufficient monitoring, to name a few (Quinn, 2004).

The template aims to guide and record a clinical evaluation, but it is not in itself intended as rating scale or psychological test. It relies on the inherent reliability and validity of the underlying assessment process by the clinician. For example, it presumes that any neuropsychological test results used to support descriptions of cognition are appropriately administered (i.e., when the individual is as medically stable as possible; adjusting for the individual's educational and language background; etc.).

Limitations
Because the template is not a test, it is not subject to usual psychometric reliability and validity analyses. The utility of the template rests in its responsiveness to the legal and clinical frameworks noted, and the review process described. Limitations to the model and template include that it was developed as a collaborative process between the American Bar Association and American Psychological Association. Although we attempted to obtain input from multiple disciplines and from those outside these associations, the model and template could reflect disciplinary biases within members of these organizations.

We encourage examination and revision of the template to improve its comprehensiveness, efficiency, and flexibility. For example, a next step may be for some courts to pilot the template to determine its practicality (e.g., will clinicians complete it?) and usefulness (e.g., does it help the court?), and to compare cases that did or did not use the template. Continuing interdisciplinary collaboration between clinical and legal professionals will be vital to deepening our understanding of the concept of capacity, improving the capacity assessment process, and protecting the autonomy and rights of older adults with diminished capacity.

	Appendix A. Guardianship Evaluation Template

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	Footnotes

 
This work was funded by a grant from The Borchard Foundation Center on Law and Aging and The Charles H. Farnsworth Trust. We are grateful to the 17 clinicians who provided insightful comments on an initial draft of the evaluation template. We thank the members of the ABA–APA Assessment of Older Adults Project Working Group, including Barry Edelstein, Greg Hinrichsen, David Powers, and Charles Sabatino; the National College of Probate Judges (NCPJ); the American Bar Association (ABA) Commission on Law and Aging; and the American Psychological Association (APA), including the Committee on Aging, the Committee on Legal Issues, and the Division of Clinical Neuropsychology. We extend special thanks to the judicial advisory panel convened for this project: Hon. Steve M. King of Texas, Hon. Gary Cassavechia of New Hampshire, and Hon. John N. Kirkendall of Michigan, and the members of the NCPJ Executive Board. Staff support was provided by Deborah DiGilio and Donna Beavers at the APA and Jamie Philpotts at the ABA. We thank two anonymous reviewers who provided a helpful critique of earlier drafts of this article.

The evaluation template described here is available online at www.abanet.org/aging or www.apa.org/PI/aging, and it can be modified according to jurisdictional needs for use by the judiciary, not-for-profit organizations, provided that the use is for noncommercial purposes. Dr. Butz is now with Comprehensive Geriatric Services, Baltimore, MD.

¹ VA Boston Healthcare System and Harvard Medical School, Boston, MA.

² Department of Neurology and Alzheimer's Disease Research Center, University of Alabama at Birmingham.

³ American Bar Association, Commission on Law and Aging, Washington, DC.

Decision Editor: Linda S. Noelker, PhD

Received for publication December 15, 2006. Accepted for publication March 15, 2007.

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