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Competence, Capacity and Guardianship
Competence is best understood as a legal term referring to an individual’s capacity to make informed decisions. Adult indi-viduals are presumed to be legally competent, unless and until there is a court finding of incompetence. A finding of incom-petence means that a physical or mental illness has caused a defect in cognition or judgment, regarding the specific area in question, such that the individual lacks the capacity to make in-formed decisions. When a court determines that an individual is incompetent, a guardian may be appointed to make decisions for that person.
Competence is often used as a general term, but it should be defined specifically. With the advent of modern psychophar-macology, competence in severely mentally ill patients is often related to medication compliance. Even floridly psychotic pa-tients may become competent after they are stabilized on medi-cations. Since the legal decision-making for incompetent patients often involves determining what the individual would want if he or she were competent to choose, it is important that the psychia-trist assess the person’s capacity when he/she is doing clinically well, in addition to when he/she is doing poorly.
Assessing a patient’s capacity to give consent is based on several general principles (Appelbaum and Grisso, 1988). The patient must be able to 1) communicate choices, 2) under-stand the relevant information, 3) appreciate the situation and its consequences, and 4) manipulate the information rationally (Table 6.8).
There is general agreement that the standard for judging competence also varies with the presented task. For instance the standard for competence to consent to take an experimental drug is higher than for taking an aspirin. The greater the risk in the
intervention, the more the psychiatrist needs to be clear about the four elements noted in the preceding paragraph.
Several other competencies require attention in civil mat-ters. For example, testamentary capacity (the capacity to make a will) may be challenged by disgruntled and disinherited par-ties. For this reason, some people obtain an evaluation of their capacity to make a will before their death. Testamentary capacity requires that individuals understand 1) the nature of a will, 2) the extent of their assets, 3) the identity of their natural heirs, and 4) that they should not be under undue influence. Decision-making can be based on either the “best interests’’ standard or the “substituted judgment’’ model. The best interests model is a paternalistic approach that assumes that decision-makers know what is in the patient’s best interests, and that they will act ac-cordingly. It is a value laden paradigm that requires guardians to be aware of their own value systems, and to be on guard against the risk that their values may conflict with those that might apply to the patient. Perhaps more onerous, but more individualized, is the substituted judgment model, discussed briefly above in the section on informed consent. Here, the guardian attempts to act in the manner the person would want under the circumstances. This is a difficult task. When an individual has never considered a possibility, such as being in a coma, it cannot be known with certainty what the individual’s wishes would be. While it might be generally agreed that individualized decision-making is a preferable model, it is easy to see why the relative comfort of the best interest approach makes this model the one that is most widely applied.
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