Download Edward Poa, MD, FAPA - National College of Probate Judges

Varying Levels of Capacity and the Doctor’s Examination
National College of Probate Judges 2016 Spring Conference
May 17, 2016
Edward Poa, MD, FAPA
Medical Director of Inpatient Services, The Menninger Clinic
Associate Professor, Baylor College of Medicine
1. Agenda
a. Causes of incapacity: common conditions, their symptoms, and how they affect capacity
b. How physicians approach issues of incapacity
c. Tips for working with physicians in issues of incapacity
2. Incapacitated person (Texas) - “…an adult individual who, because of a physical or mental
condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care
for the individual’s own physical health, or to manage the individual’s own financial affairs…”
3. Incapacitated person is:
a. Unable to:
i. Provide food, clothing, or shelter for self, or
ii. Care for own physical health, or
iii. Manage own finances
b. Because of a physical or mental condition
4. Neurocognitive disorders (Dementia) – ~3% of population over 65, ~40% of population over 85
a. Diagnostic criteria
i. Memory impairment
ii. One or more cognitive disturbances
1. Aphasia (language)
2. Apraxia (motor)
3. Agnosia (recognition)
4. Deficits in executive functioning
5. Deficits cause significant impairment and are a decline from previous
functioning
b. Types of Dementia include:
i. Alzheimers – most common (2/3 of dementia cases); memory loss is usually most
noticeable symptom; Mixed (combination of Alzheimers and Vascular) often
lumped into this category
ii. Lewy Body – second most common (10-15 % of cases); can result in visual
hallucinations and respond poorly to antipsychotic medications
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iii. Frontotemporal – characterized by personality changes, behavioral changes, and/or
language impairment; memory may be preserved
iv. Vascular – caused by loss of blood flow to parts of the brain due to ischemic
(blockage of blood vessel) or hemorrhagic (bleeding) insult; deficit is due to part of
brain affected and can be step-wise in nature
v. Traumatic Brain Injury – deficit caused by direct result of physical injury and/or
bruising; usually not progressive (unlike the other Dementias)
vi. Alcoholic – Wernicke’s encephalopathy; confabulation can be a hallmark symptom
vii. Parkinsons and Huntingtons disease – neurodegenerative disease with motor
symptoms that can include cognitive symptoms
viii. Due to a medical condition – liver failure, kidney failure, HIV/AIDS
c. Diagnosed and treated by primary care physicians, neurologists, psychiatrists
5. Neurodevelopmental disorders
a. Intellectual Disability (Mental Retardation) - IQ under 70 with problems in adaptive
functioning; includes Down Syndrome, Fragile X Syndrome, fetal alcohol exposure; 2-3%
population with up to ½ without clear cause
b. Autism Spectrum Disorders (Autistic Disorder, Asperger’s Disorder, Pervasive
Developmental Disorder) – disorders of social interaction, communication, and
repetitive/stereotyped behavior
c. Treated by neurologists, psychiatrists
6. Psychiatric disorders
a. Psychotic disorders (Schizophrenia, Schizoaffective Disorder, Delusional Disorder) –
characterized by problems perceiving and interpreting reality; symptoms can include
positive symptoms (delusions, hallucinations, thought disorganization) and/or negative
symptoms (apathy, decreased emotional expression, low motivation)
b. Mood disorders (Depression or Bipolar Disorder) – mood episodes of either depression,
mania, or a combination of the two; can result in psychotic symptoms in midst of severe
episode
c. Substance Use Disorders – continued use of substances despite negative consequences
(health, social, financial, occupational); can result in persistent mental health effects
d. Treated by primary care physicians, psychiatrists
7. Summary of physicians and which conditions they usually treat
a. Primary care physician – majority of patients with dementia, post-stroke effects, mood
disorders
b. Psychiatrist – patients with psychotic disorders, mood disorders, intellectual disability,
autism, brain injury
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c. Neurologist – patients with dementia, post-stroke victims, intellectual disability, autism,
brain injury
8. Physicians qualifications to consider
a. Experience
i. Age group
ii. Patient or illness specialty
b. Board certification
c. Willingness to testify if needed
d. How will they present in court?
e. Physicians v. psychologists
9. Things to keep in mind about physicians
a. Physicians work in highly hierarchical environments where their decisions are usually not
questioned
b. Physicians are expected to know what they are doing (and many are not used to asking
questions or doing anything else that might indicate that they do not)
c. Physicians do not like being in a position where they may appear incompetent
10. Physicians evolve in how they arrive at diagnoses and treatment decisions
a. Physicians begin training by learning about specific symptoms needed to diagnose
b. With experience, physicians often diagnose by patterns or “clinical impression”
c. Many experienced physicians may not be accustomed to critically examining their
diagnoses
d. Because charting takes time and there are high paperwork demands, many physicians
progress toward a documentation style that can gloss over rationale or thought process
11. What physicians are taught about capacity & competency
a. “Capacity is a medical issue, while competency is a legal issue.”
b. “Capacity to make medical decisions or give informed consent is determined by medical
professionals.”
c. “Competency, or total capacity, is determined by the courts.”
d. “Guardians make decisions for another person.”
12. Provide the criteria as they may not know, or not apply, the appropriate legal criteria
a. “Yes, this person needs someone to make decisions for them.”
b. Based on a gut feeling or whether the physician agrees with the patient’s decisions
13. If available, provide the court-mandated form
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a. Double-check that they have the current form (physicians often have outdated versions, if
they have any at all)
b. Will often help reduce anxiety about what information they need to provide
c. Provides a structured format that will support their opinion
14. Watch out for physicians making general conclusions
a. Physician believes that certain diagnoses (dementia, intellectual disability, schizophrenia)
automatically result in incompetence
b. Opinion on individual’s competence is based on an overall impression without clear
evidence or examples
15. Ensure that there is a clear relation between a diagnosed condition and the inability to care for self
or property
a. A condition and an unrelated inability to care for self or property does not fulfill the criteria
b. Be wary of “poor judgment” used as a condition or circular argument
c. Some patients may have severe symptoms that do not affect their functioning
16. Ask how deficits affect their Activities of Daily Living
a. Activities of Daily Living: self-care activities such as bathing, eating, dressing, toileting
b. Instrumental Activities of Daily Living: requiring manipulation of implements such as
managing money, taking medications, making phone calls, maintaining/cleaning home,
shopping, cooking
17. Guard against extremes of paternalism or patient autonomy
a. Doctor knows best
i. Individual is incompetent if he doesn’t make healthy decisions or do what the
physician recommends
ii. Defines some behaviors as incompetence per se
b. People have the right to do whatever they want and pay the consequences – resulting in an
overly low bar for competence
18. Provide less intrusive alternatives that they may need to consider
a. Guardian of person/estate
b. Durable power of attorney
c. Advance directive
d. Veteran’s benefits fiduciary
e. Representative payee
19. Provide the criteria for testamentary capacity if pertinent - Sufficient mental ability to:
a. Understand the business in which he is engaged
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b.
c.
d.
e.
The effect of his act in making the will
The general nature and extent of his property
Know the natural objects of his bounty (please explain to the physician)
Have sufficient memory to collect in his mind the elements of the business to be transacted
and to hold them long enough to at least perceive their obvious relation to each other
f. Be able to form a reasonable judgment about them
20. Ask for one of the following objective measures of cognitive functioning:
a. Mini Mental State Examination (MMSE)
i. Widely known, easy to administer, 30 point scale
ii. Low sensitivity, susceptible to practice effect
b. Montreal Cognitive Assessment (MOCA)
i. Increasingly used by physicians, 30 point scale
ii. More sensitive, less practice effect
c. Neuropsychological or intelligence testing
i. Most sensitive and definitive
ii. Expensive and time-consuming, requires a trained psychologist
21. Common report problems (Roof, 2012)
a. Illegible
b. Lacked discussion of specific deficits
c. General conclusions about decision-making abilities
22. Have physician comment on the following, especially if there is no mandated form (Moye et al.,
2007):
a. What medical conditions are present that produce functional disability, and what are their
prognoses?
b. What is their cognitive functioning?
c. Attention, motor skills, memory, understanding, arithmetic, communication, verbal
reasoning, visual-spatial reasoning, executive functioning
d. What is their ability to function daily?
e. What are their individual values and preferences?
f. What is their risk of harm and how much supervision is needed?
g. What might be done to increase capacity?
23. Summary recommendations
a. Make sure the physician knows the actual criteria (provide them if there is any doubt)
b. Ask for specific diagnoses, symptoms, impairments, and a causal link between symptoms
and impairments
c. Be wary of “symptoms” that are not due to any of their diagnoses (e.g. poor judgment)
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d. Watch for conclusory opinions
24. References
a. Buruss, J.W., Kunik, M.E., Molinari, V., Orengo, C.A., & Rezabek, P. (2000).
Guardianship applications for elderly patients: Why do they fail? Psychiatric Services,
51(4), 522-524.
b. Gavisk, M. & Greene, E. (2007). Guardianship determinations by judges, attorneys, and
guardians. Behavioral Sciences and the Law, 25, 339-353.
c. Leo, R.J. (1999). Competency and the capacity to make treatment decisions: A primer for
primary care physicians. Primary Care Companion to Journal of Clinical Psychiatry, 1(5),
131-141.
d. Moye, J., Butz, S.W., Marson, D.C., Wood, E., & ABA-APA Capacity Assessment of
Older Adults Working Group (2007). A conceptual model and assessment template for
capacity evaluation in adult guardianship. The Gerontologist, 47(5), 591-603.
e. Roof, J.G. (2012). Testamentary capacity and guardianship assessments. Psychiatric
Clinics of North America, 35, 915-927.
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