General Considerations • Ensure the patient has access to any supports or accommodations they may need during the assessment, including auditory or visual devices, interpreters, or support persons. Modify your communication style to ensure effective communication as needed. See Appendix A additional guidance. • Document the types of supports the patient may need to make, communicate, or effectuate decisions. • Unless the patient needs an interpreter or the support of a third party as an accommodation, examine/evaluate the patient alone and in a quiet space. • Conduct a thorough clinical interview and examination and review relevant records. Explain: • The patient’s cognitive (including executive), emotional, and behavioral functioning as well as their functional abilities • Relevant medical factors including any temporary or reversible conditions and environmental factors that may affect decision-making; and o any relevant personal or cultural values that may impact their decision-making • Review the patient’s medical records and talk to the other providers, family members, and other collateral sources of information if possible. They can provide greater insight into the patient’s functioning prior to your interaction and the types of support that is available to them. • Be mindful of how any assumptions or judgments about the patient, people with disabilities, or older adults might influence your or collaterals’ assessments of the patient. Past experiences of discrimination may impact how the patient, or their loved ones, interact with you or their willingness to be forthcoming. • Be mindful of any conflicts of interest in performing the assessment. Do not let them influence your assessment. Additional Resources • Elder Justice Decision-Making Capacity Resource Guide (U.S. Department of Justice Elder Justice Initiative) • Adult Capacity and Assessment (ABA resource for lawyers, judges, psychologists, and physicians ) • Assessments of Older Adults with Diminished Capacity: A Handbook for Psychologists (ABA/APA) • Understanding Ableism and Negative Reactions to Disability (APA) • Implicit Bias & People with Disabilities (ABA Commission on Disability Rights) 34
Considerations for Performing Capacity Assessments If you are tasked with performing a capacity assessment, take care to thoroughly examine or evaluate the patient. The clearer and more comprehensive your assessment is, the less likely the court or other parties in the case will have questions. This, in turn, will reduce the chances that you will need to testify in court or sit for a deposition. Attach any documentation that provides a more comprehensive understanding of the patient, any diagnosis, and how that diagnosis affects their functioning. When possible, use language non-clinicians can understand. Each section of the certificate form should be completed. Write “not applicable” where appropriate. Your assessment will influence whether the patient loses basic rights and liberties. It can be difficult get out of a guardianship, even if the person recovers or regains capacity. Use the IDEAL Approach as a framework for identifying and documenting what the patient can do, their specific needs, and what services and supports can help address those needs. This can help safeguard against an overly restrictive legal arrangement. Considerations for Remote Capacity Assessments • Be mindful of the patient’s access to and comfort with HIPAA compliant technology with clear video and audio feeds. • Utilize a neutral third party (if available) who can help the patient with the technology if needed. • Ensure the patient will be in a space that is comfortable, well-lit, private, and free from distractions. • Confirm your ability to ensure the interaction is not recorded and that another person is not in the background. • Be mindful of the type of assessments needed and consider whether they can be administered remotely without compromising the reliability of results. • Consider whether a remote interaction will interfere with the patient’s speech, hearing, or comfort. • Consider barriers to build rapport with the patient or learn from body language.
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