Civil Competencies Flashcards
Competency BOP
On person alleging incompetence
Testamentary Capacity Def
Capacity to make last will/testament
4 Understandings for Testamentary Capacity
- Writing a will and will provides for disposition of property after death
- Extent of his bounty (at least general terms)
- Identity and relationship of those who have natural claims on his bounty (natural heirs)
- (Sometimes) how the property will be distributed and (sometimes) his relationship to the members of his family or effect of his will on others
Contested Wills BOP
On person trying to invalidate, usually by CACE
If will invalidated by judge
Provisions have no effect, so distr proceeds under any valid that exists or under “intestate succession”
Insane Delusions re: Will
Def & Effect
Delusions accounted for only by mental d/o / no basis in fact/no existence except mind of delusional person
Can invalidate will
Undue Influence (what it is, elements, result)
Someone manipulates/deceives other with intent causing them to alter will (often romantic or dependency-related)
- Elements of coercion, compulsion, or restraint so will doesn’t represent wishes of testator
- Can cause will to be invalidated, even if testamentary capacity
4 Factors Signal Undue Influence
- Unnatural disposition of property
- Property disposition made by person vulnerable to influence from person who stands to gain from disposition
- Person who stands to gain has opportunities to unduly influence testator
- Person who stands to gain has used influence through improper means
Incompetence to Enter Contract
Not valid if 1 party didn’t have true understanding of what was doing, due to mental disability (including cog) meaning unable to appreciate nature of transaction/ramifications. Not just ignorance or lack of sophistication
Contract Degree of Competence vs. Testamentary Capacity
Contract higher required bc of adversary interest
3 Factors to Consider in Parental Fitness Evals (+ 1 modifier)
Severity of parental MI, SUD, or ID
- Also ability to appreciate/address any special needs of child. May be fit for nml child but not this one
Competence to Vote History (& Rejected Standards)
Many states fairly recently had laws restricting or barring MI/ID (“idiot,” “lunatic,” “insane”), but efforts to remove status-related barrs
- Rejected standards that they have “intelligent understanding of the issues at stake” and be literate
3 Pieces of Possible Evidence Incompetent to Manage Finances
- Squanders money
- Hoards assets to point of depriving self or family of necessities
- Easily financially victimized by designing persons
2 Types of Guardians
Guardian of person (plenary)
Guardian of estate (conservator)
Guardianship Standards (Gen, Trend, Consideration)
Often vague and variable, some states moving towards functional definitions that lack ability to provide for their basic functional needs.
- Before guardian appt’d, needs to find there is a need for guardian & no less restrictive alternative
5 Possible Alternatives for Guardians
Guardian of estate only
Appt of a representative payee for SS benefits
Custodian of VA funds
Trust
DPOA
7 Ward Ramifications re: Guardianship of Person
- Legally, ward is non-entity
- Can’t enter contracts
- Can’t manage funds
- Can’t file lawsuits
- Might not be able to vote
- Can’t consent to surgery
- Rebuttal presumption that lacks testamentary capacity
Guardians w/r/t Consenting Psych Hosp
- Vary across states if they can, which means that incapacitated person might have to be committed, even if guardian would consent
Materiality of the Information Standard Other Name
Reasonable person standard
Truman v. Thomas Significance
Extension of Canterbury v. Spence where not only r/b of procedure, but also r/b of no tx
Assented vs. Consented
Assented when agree to tx w/o elements of informed consent, only adequate in certain cases (like somebody already incompetent)
Depression and Capacity to Consent to Tx
Can obviously distort judgment about possibility of anything improving, but gen, mild-mod depression may not distort judgment about life-saving tx, and decision didn’t change when depression cleared
Schizophrenia and Capacity to Consent to Tx
Substantial proportion of inpts showed some deficits in decision-making more often than those w/o MI, but majority performed adequately
Favorable Risk-Benefit Ratio of Procedure
Low test of competency if pt consents, high test if refuses
Unfavorable Risk-Benefit Ratio
High test of competency if pt consents, low test if refuses
Psych Inpt Privileges and Consent
Privileges and perks can’t be contingent on agreeing to tx, but absence of tx, pt behaviors/sx might clinically preclude certain reductions in restrictions
4 Exceptions to Informed Consent
Emergency
Incompetency (seek out consent from guardian/substitute decision-maker)
Waiver
Therapeutic Privilege
Waiver (what it is, req)
pt can waive medical decisions to physician, but must be competent/documented
- Must discuss right to be involved in process and reasons for declining, and that discussion must be documented
Problems with Therapeutic Privilege
Basically at risk to “swallow the rule” of informed consent if overly paternalistic/abused, can’t withhold information just bc telling the pt would make less likely to consent to tx
Therapeutic Misconception
Tendency of research subject to believe research is for their therapeutic purposes instead of to answer a larger study question
Reason Autonomy-Paternalism Ethics Heightened in Research
Experimental tx rarely intended for participants’ direct benefit
Advance Direct Def
Instruction from competent person that directs/authorizes certain actions in event they become incapacitated for that decision
2 Types of ADs
Decision Directives (Living Wills)
Proxy Directives (DPOAs, HCPOA)
Possible Problems w/ Decision Directives
- Might not envision all possible scenarios or advances in medical science that might change px
When do Proxy Directives Take Effect
Usually when pt’s physician determines pt lacks capacity to make decisions
PAD Desired Benefit
Hope to support person-centered care and minimize coercion
Legal Decision-Maker Priority
Spouses
Adult Children
Parents
Siblings
More Distant Relatives
Supported Decision-Making
Adopted by UN for people w/ disabilities, recognizes some individuals might need supports/assistance in decision-making, but they still have capacity to be own decision-makers
Supported Decision-Making vs. Shared
Shared allows another person to share in the decisions, supported means they get support to make their own decisions
3 Models of Vicarious Decision-Making
- Explicit pt choice (when has made wishes clear during period of competency)
- Best Interests
- Substituted Judgment
Best Interests Decision Making
Decision-maker advances what believes to be ward’s best interests; what most people would want in similar situation (not idiosyncratic methods of ward)
2 Difficult Scenarios for Substituted Judgment
Ward has never been competent (e.g., ID)
Has never voiced a preference
