Evaluating Decision Making Capacity in Older Individuals: Does the Law Give a Clue?

Adequate cognitive and emotional capacity is essential to autonomous decision making by adult medical patients. Society often attaches legal consequences to decisional capacity evaluations. Even when the legal system is not formally involved in the competency evaluation of a particular individual, clinical practice and ethical conduct occur within and are informed by legal parameters. Using relevant statutory, court rule, and judicial opinion examples from a representative jurisdiction within the United States, this article argues that the law seldom provides much meaningful guidance to health care and human services providers to assist them regarding the content of capacity evaluation. The article concludes by asking how society ought to respond to the paucity of helpful guidance provided by the law in the decisional capacity evaluation context.