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Tuesday, February 2, 2021

When Is a Senior No Longer Capable of Making Their Own Decisions?

 

A friend (thank you, David Day QC) recently sent me a really excellent article about seniors who are deemed incapable and how they fare when others make decisions for them. Sometimes all works as well as can be hoped, but in other cases, seniors are put into a care facility or lose the right to manage their own money when such measures aren't needed.

An important point raised in the article is that some of our legal mechanisms, such as Enduring Powers of Attorney and Adult Guardianships, strip the seniors of the legal ability to make their own decisions whether they like it or not, and in some cases, whether they need it or not. I have always tried to emphasize that legal remedies such as these should be used only as much as is actually needed, and that caregivers should not impose help that is not needed or wanted. Being old doesn't mean you no longer have any rights.

Determining mental capacity is not easy and, as the article points out, there are no precise ways to measure it. But our population in Canada is aging and we need to understand how to deal with family members who may be living with diminished capacity.

The article is by Sharon J. Riley and appears in The Walrus. Click here to read it.

2 comments:

  1. Lynne,

    Excellent post. This deals mainly with mental capacity, and diminished mental capacity. I would like to see an aricle that relates to physical capacity and diminished physical capacity ie. disability.

    Webeye

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    Replies
    1. Generally speaking, lack of physical capacity does not prevent a person from making decisions. Being in a wheelchair or being bed-ridden or having a speech impairment, etc, do not affect the ability to think and decide. For this reason, physical incapacity is generally not contemplated by the term "lack of capacity".

      This is not to say that diminished physical capacity never enters the issue. It can. For example, a stroke may leave a person unable to speak or write. Therefore, there could well be excellent mental capacity but no way of making his or her wishes known. At that point the impairment is treated the same as a lack of mental capacity.

      It is an interesting issue. One of these days perhaps I'll have time to look into it further!

      Lynne

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