What about capacity assessments? Should they all be the same?
Some lawyers argue that if a person has testamentary capacity, they must also have the capacity to grant a Power of Attorney (POA) for property, since making a Will supposedly requires the highest level of decision-making ability.
A well known evaluator disagrees, noting that there is no single hierarchy of capacity across all legal decisions. Instead, capacity is task, time, and situation specific, with different legal decisions requiring different criteria.
The concept of capacity involves:
- balancing autonomy, with
- the protection of the vulnerable.
A risk-sensitive approach suggests that when decisions involve high stakes, complexity, or conflict, a higher threshold of cognitive and emotional stability should be required. For example, in will-making, the standard varies from simply showing a choice in simple cases to providing rational, consistent reasons in complex or conflicted situations.
Critics argue that risk-sensitive assessments may introduce evaluator bias, either by setting thresholds too high (risking undue findings of incapacity) or too low (risking false positives).
The central challenge is where to set the threshold for understanding and appreciation, as this can be influenced by the evaluator’s moral and ethical stance. A neutral, balanced approach is essential for fair assessments.
Brian Madigan LL.B., Broker