APPENDIX B CAPACITY ASSESSMENTS In the context of considering guardianship and its alternatives, clinical capacity assessments are used to ascertain whether someone has legal capacity. The use of the term “capacities” here is in recognition of the task-specific nature of, and different standards for, legal (vs. clinical) capacity. For example, the standard for legal capacity to execute an advance directive is different from the standard to enter a supported decision-making agreement or to choose where to live. The standard for establishing that someone needs a guardian is very high. The standard is outlined in the Guardianship Law and Process section. The law recognizes that there are intermediate levels of decision-making capacity and that a person may have more capacity in some domains than others. It also recognizes that capacity can be fluid, task-specific, situational, and can change. In a guardianship case, capacity assessments weigh heavily in the determination of whether a person needs a guardian but they are not dispositive. Even if the court determines that a person meets the standard of (in)capacity, the court still needs to be persuaded that there is no alternative to guardianships available to meet their needs. Capacity assessments are used in proceedings to establish and terminate a guardianship. They can also be used to support a request to limit or modify one.
Capacity Can (be): Fluid Situational Vary with complexity of the task Assumed based on biases Maximized with supports and accomodations Capacity decline (with): Progressive dementia Not taking medication Overmedication In facilities Stress, grief, traumatic events
Physical trauma Medical factors Under an unnecessary or overly broad guardianship Capacity Improve (with): Recovery from an accident, stroke, traumatic brain injury, etc. Changes in medication With medical or mental health treatment Supports and accommodations Less restrictive environments
Establishing a Guardianship: “Certificates of Incapacity”
Terminating Guardianship: “Cessation of Disability”
With limited exceptions, a petition for guardianship must be filed with two (2) certificates of incapacity.2 At least one certificate must be completed by a physician . The second assessment can be completed by: • Another physician • A psychologist • A licensed certified social worker-clinical (LCSW-C) • A nurse practitioner One certificate must be based on an examination or evaluation that is conducted within 21 days before the filling of the petition for guardianship.
A guardianship can be terminated (ended) based on a “cessation of disability.” This means that the person no longer has an illness or disability that affects their ability to make, communicate, or effectuate decisions about their personal affairs or property. This can happen when a person recovers from an illness or has demonstrated the ability to make decisions without the need for a guardian, even if they still have a diagnosed disability. A request (petition) to terminate a guardianship on the basis of cessation of disability, must include one (1) medical certificate completed by a physician.
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