Decision-Making Capacity and Conservatorship in Older Adults: Page 2 of 2

September 17, 2012

Instrument Used in the Case Study

Before determining someone’s decision-making capacity, one needs to address potential barriers to communication, such as language; identify potential social influences, including friends and family; establish how to optimize the patient’s sensory function and health; and assess for and address delirium and depression.11 We used the MacCAT-T3 to guide an interview tool that we employed to assess the case patient’s decision-making capacity to return home. This tool assumes that the criteria applied to determine capacity for any task or decision is the same for all tasks and decisions. This tool was chosen over others, such as the Hopkins Competency Assessment Test,12 because it enabled the clinician to tailor the interview guided by the MacCAT-T to the specific decision that the patient needed to make. The MacCAT-T, which consists of a detailed training manual and record form that break down the functional domains relevant to decisional capacity assessment,13 has been studied in different populations with an inter-rater reliability of 0.87-0.99 (mean kappa=0.76 for medical patients).7 Scoring can be done to compare the patient’s score with the norm for that population (eg, community-dwelling adults)13; however, for clinical purposes, the patient’s responses during the interview were most valuable, as they provided the evidence needed to determine the patient’s decision-making capacity.

The functional decision-making steps for assessing a patient’s capacity using the MacCAT-T include the following: (1) the ability to understand relevant information; (2) the ability to appreciate the significance of that information with regard to one’s own situation; (3) the ability to reason and engage in a logical process of weighing treatment options and recommendations; and (4) the ability to express a choice.3 The tool takes approximately 15 to 20 minutes to administer (excluding preparation work/chart review) and uses a rating scale of 0 to 2 for scoring, with norms available for different samples.7,13 We created a script (available on request from the corresponding author) based on the MacCAT-T format to help guide our assessment of the case patient’s decision-making capacity with regard to his ability to return home safely. For our purposes, the MacCAT-T rating scale or scoring was not used, as the information and details found during the interview itself were more important in determining the patient’s decision-making capacity and provided the insights needed to determine if legal conservatorship should be pursued.

The Process of Conservatorship

If a patient is found to lack decision-making capacity because of mental or physical impairments, a conservatorship is one option to provide support and daily management. Some states use the term guardianship for a court-ordered person assigned to supervise the daily management of an older adult, but conservatorship is the term used more commonly in our setting, as the term guardianship can also include the care of minors. State laws vary, but in general, filing a petition with the court by any interested party, such as family members, social workers, or clinicians, starts the legal process of conservatorship. Families can file for a private conservatorship with the assistance of an elder-law attorney; the public conservator is an option in most states for older adults with no relatives and no financial means to pay for conservatorship services.14 A clinical evaluation, completed by a medical provider or psychologist, and other medical evidence in support of the petition (ie, the consequences of past decisions that differed from healthcare provider recommendations) are filed with the court. The court then investigates the petition and interviews all interested parties.12 After court investigations are completed, a hearing is held and a judge determines the need for a conservatorship based on the petition, the medical evidence gathered, and the conclusions from the court investigations. In most states, a representative counsel is encouraged or mandated for the individual being considered for conservatorship.15 Family members may serve as the appointed conservator or a professional can be hired.


Implications of Pursuing Conservatorship 

The cost and length of time to complete the conservatorship process make this a difficult option to pursue; the process can be drawn out for months while all interested parties are interviewed, and it may cost several thousands of dollars. It is usually difficult to complete the process when medical providers and family members disagree on the necessity of a conservatorship. It may also be difficult to demonstrate the need of a conservatorship when the patient’s dementia diagnosis is not obvious due to high premorbid cognitive function, when there is denial or a lack of insight by family members, or when the patient has preserved language skills or memory. In these cases, examining the adult’s other cognitive domains as they relate to functional status, and the ability to learn and adapt to new impairments or illness, become important. For example, judgment and insight related to complex medical management needs to be determined, such as taking medications as prescribed, monitoring medical conditions (eg, blood pressure or blood glucose), compensating for new physical or mental impairments, and recognizing when to ask for help. Personality changes need to be recognized as part of the dementia process, while factors related to culture, language, and educational background should be critically analyzed, because they can complicate test results and may lead to misinterpretation of an individual’s decision-making capacity.14

A court-ordered conservatorship significantly limits an individual’s rights and is not to be pursued lightly. Although a conservatorship is a means to protect an individual with self-care deficits, it does restrict individual freedoms,14 such as an individual’s right to determine where he or she lives and which medical treatments are administered, all of which could negatively affect his or her psychological well-being. In addition, the potential of a petitioner to be prompted by other motives that could yield prospective gains if he or she is appointed as the conservator must be weighed, and the length of due process often provides inherent benefit to the older adult by providing the time to explore all angles of the situation.

Alternatives to the conservatorship process requires proactive advanced care planning while a person’s decision-making capacity is intact. An individual with cognitive impairments may have support in place before functional or health declines occur, through family assistance, joint bank accounts, living trusts, or durable power-of-attorney assignments.14 Community agencies, such as home health services and APS, can then help to maximize the support of the individual while providing the least restrictive setting.


Case Outcome

Our team assessed the case patient using the modified MacCAT-T tool and found him able to state his understanding and appreciation of the problems associated with returning to his residence at a low-income, independent living facility. He was also able to state the possible health and safety consequences of his choices. The team also considered that the reasoning behind his choice to return to his previous residence—namely, his concerns about cost, preserving adequate funds for his remaining life span, and the importance of maintaining a level of independence—matched his values and history. The team’s final assessment was that he was indeed capable of deciding to return to his previous living arrangement.

Because the case patient was thought to remain at high risk for self-neglect, APS was contacted to follow up with him after his discharge from the hospital. He was given information regarding transportation resources, emergency contact devices, and a list of assisted living facilities in the area to consider. Visiting nurses would help him monitor his medications, and home physical therapy was planned for continued reconditioning.



Assessment of decision-making capacity requires an individualized and interactive process that probes the patient’s ability to grasp and manipulate relevant information, as we have shown in this case report. It also determines whether the choices being made are logical and reasonable in relation to the patient’s expressed values. Pursuing conservatorship is a serious decision and should not be undertaken lightly. Regardless of whether the patient has the capacity to understand the risk of returning home when it is deemed unsafe, or clearly lacks the capacity to comprehend this risk, the ability of the healthcare team to follow through with the process and build relationship support with family members or others is imperative for reducing the risk and severity of decline in health and the need for repeated admissions.15



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The authors report no relevant financial relationships.


Address correspondence to:

Jenice Ria Guzman-Clark, PhD, RN

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