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With Medical Decisions, ‘Capacity’ Is the Key

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Medical decisions

“As long as you are able to make medical decisions, you get to make your own.”

We often tell clients that when we are discussing creating a medical health care power of attorney. In the document, a “principal” names an “agent” to make decisions for the principal if/when he or she no longer can. The “HCPOA” helps avoid guardianship proceedings, too. Each health care power of attorney is what we call “springing” – it springs into effect only upon the incapacity of the principal.

That seems simple. The reality, however, can be pretty complicated.

What is ‘Capacity’ to Make Medical Decisions?

“Legal capacity” is the ability to understand a certain action. “Capacity” at any given time depends on the nature of the act in question. Different acts require different thresholds of capacity. Capacity to sign a contract is different than signing a Will or giving gifts or getting married. Capacity is always situational and determined on a “sliding scale.”

In a medical context, capacity means the ability of a patient to understand information about a proposed treatment and then make a choice consistent with his or her values. When we envision an assessment of medical capacity, we may picture an exam that considers our understanding of treatments and our ability to express a choice. In practice, such an assessment is rarely performed. Even if an exam is given, a determination can be difficult. More so if a person has symptoms of dementia or suffers from mental illness.

Common Misunderstandings

Even medical professionals don’t fully understand the nuances of capacity. One study found these 10 common myths among clinicians:

  1. Decision-making capacity and competency are the same;
  2. Lack of decision-making capacity can be presumed when patients go against medical advice;
  3. There is no need to assess decision-making capacity unless patients go against medical advice;
  4. Decision-making capacity is an “all or nothing” phenomenon;
  5. Cognitive impairment equals lack of decision-making capacity;
  6. Lack of decision-making capacity is a permanent condition;
  7. Patients who have not been given relevant and consistent information about their treatment lack decision-making capacity;
  8. All patients with certain psychiatric disorders lack decision-making capacity;
  9. Patients who are involuntarily committed lack decision-making capacity; and
  10. Only mental health experts can assess decision-making capacity.

Where Statutes and Documents Can Help

Health-care power of attorney documents rarely help. Few of these documents provide guidance to the agent or medical provider regarding when the power  “springs” into effect. The standard Arizona form simply states: “This power of attorney is effective on my inability to make or communicate health care decisions.”

In some states, statutes provide default provisions that govern if the document is silent. Wisconsin, for instance,  provides that a health care power “takes effect upon a finding of incapacity by 2 physicians . . . , or one physician and one licensed advanced practice clinician, who personally examine the principal and sign a statement specifying that the principal has incapacity. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to make a finding of incapacity. . . . ”

Arizona does not provide such guidance, so you may want to add some. Attorneys can customize any document to suit a client’s wishes.

Carefully Consider Your Situation

Providing a standard and a mechanism can be complicated, too. It’s important to strike a balance between ease of use (especially in an emergency) and safeguarding your rights. A standard that is restrictive might cause delays in care, and one that is too lax might strip you of the ability to make medical decisions before you are truly incapable.

Consider the medical professional and who you’ve selected as agent. (Take care in selecting the agent, too.) If you say “two physicians familiar with my care,” that means a nurse practitioner, physician’s assistant, or psychologist would not qualify. Plus your agent has to obtain statements from two. Would he or she have the motivation and ability? In modern medical care, “physicians” are becoming more rare, and are often difficult to reach. Consider expanding the class of people who can make the call. But don’t expand too far. If you opt for a very generic term such as “medical provider,” almost any person on the medical team could qualify. If you have a specific condition, consider making the decider very specific: Neurologist? Geriatric psychiatrist?

Also consider the assessment. Do you want a formal examination? In writing? Attached to the document? Confirmed periodically?

You should already be reviewing documents regularly. You may wan to take a little extra time to consider the “incapacity” question. While you are at it, review the similar provisions in financial powers of attorney and trust, if you have one. They also should be consistent with your values and your circumstances.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.