The Growing Need to Do Capacity Evaluations in Older Adults

Capacity assessments are medical opinions, not legally binding documents

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Community and family members may want to help in making medical decisions for aging loved ones, but they can be thwarted by the need for a doctor to determine the individual’s capacity. And with a growing number of ‘unbefriended’ seniors with no friend or family to rely on, capacity evaluations and assigning of guardians is becoming especially critical.


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“Everyone deserves an advocate,” says Cleveland Clinic geriatrician Ronan Factora, MD. “And for those cognitively impaired patients who are unbefriended, doing a capacity evaluation is critical to ensuring that a responsible person is making medical decisions on their behalf.”

Dr. Factora notes that all licensed physician can perform an evaluation and that in the long run, it makes the entire care team’s job easier.

A closer look

Evaluation forms are often given by the requesting courts, patient families or Adult Protective Services (APS) and can be easily found online. (In Ohio where Cleveland Clinic is located, it’s called a Statement of Expert Evaluation.) “These capacity evaluation forms are easy to fill out, with much of the information readily available in the medical record,” says Dr. Factora. “The questions regarding the person’s cognitive function can be filled out after doing a brief office-based cognitive test, such as a Folstein mini-mental state examination.”

He explains that the information needed by APS focuses on impairments in the patient’s ability to independently manage their basic activities of daily living, particularly problems managing their medical and financial affairs. They also want to know whether:

  • The impairments are due to a cognitive problem.
  • The person realizes that they have cognitive impairment.
  • The person realizes that their cognitive impairment worsens their functional status.
  • They accept or refuse/resist interventions to meet the care needs that they are unable to provide for themselves (judgment).

And Dr. Factora says physicians shouldn’t feel restricted by the space on the form. “I recommend adding additional information to the comments page as this can be very helpful to those who review the statements.”

He notes that there may be a reluctance on physicians’ part to get involved with these evaluations so as to avoid the legal realm, but he explains that these evaluations are simply a medical opinion. It is up to the judges to make the final decision about whether or not the patient is competent. The doctor only provides information for guidance along with social workers, case managers and Adult Protective Services.


The care team

Issues spill over into nursing too. “Addressing capacity affects nursing care and what we feel comfortable doing if we aren’t sure the patient has capacity. It can cause hesitation in care if we’re not sure who is making medical decisions,” says clinical nurse specialist Julie Simon, MSN, APRN, AGCNS-BC, CMSRN, co-coordinator of Cleveland Clinic’s geriatric resource nurse program.

This potential gap in patient care makes addressing capacity in a timely manner important. “Once capacity is determined, we ask that the physician communicate that plan of care and who’s making decisions – or if documents have been activated [Health Care Power of Attorney or Living Will],” Simon explains.

Simon echoes what Dr. Factora says, that doctors don’t need to feel alone when it comes to the capacity issue. “It can be challenging for the entire care team when it comes to cognitive issues, but we have a lot of resources that we can pull in to enable us to give the best care,” she says. At Cleveland Clinic, these resources include social workers, bioethics, legal, ombudsman, geriatrics, pastoral care and healing services.

“At the state level, one of the biggest challenges is to find doctors who are willing to complete capacity evaluation forms,” Dr. Factora says. “There aren’t enough geriatricians, so the primary care doctors, who have known these patients the longest, are the natural group that probate court judges and Adult Protective Service workers will go to.”

Potential barriers

Along with geriatrician Saket Saxena, MD, Dr. Factora recently began a project to find out what’s fueling the reluctance of physicians to complete these evaluations. They have found several obstacles to assessing capacity, including:

  • Fear of alienating patients. “Primary care physicians don’t want to ruin their longitudinal relationship with the patient or the family,” Dr. Factora says. “We want doctors to understand that they’re not betraying their patient. They may be doing something against the patient’s wishes, but it’s still in the best interest of the patient.”
  • Misunderstanding the difference between competence and capacity. Though they’re often used interchangeably, competence is a legal term that only a court can determine, while capacity refers to a person’s ability to make informed decisions. “The capacity evaluation is the doctor’s opinion on whether or not a person has general decision-making capacity, specifically with regard to their ability to make medical or financial decisions,” Dr. Factora says.
  • Perceived legal ramifications. Many doctors think they’ll have to do a deposition and go to court once they do a capacity evaluation. They’re also concerned about being sued. “We’ve spoken with probate court judges and none of these things are true,” Dr. Factora says. “You don’t have to worry about being sued because a capacity evaluation is just a medical opinion.”

Educating attorneys too

Dr. Factora is also working on a project that educates attorneys on capacity assessments. His goal is to help them understand what elements are critical so they know what to ask doctors to evaluate. This helps both parties do their jobs better.


For instance, physicians need to assess how patients function at home and identify if there are any impairments. Medical causes for the impairments should be identified; and if there is cognitive impairment, they can note if there causes that can be treated or reversed (i.e., by addressing medication side effects or mood problems).

For functional evaluations, “we rely on third-party family members, friends and the community to tell us what they’re seeing,” says Dr. Factora. “It’s not just one-on-one with the patient — you really have to get collateral information from the community.”

Why all the detail? “We want to provide as much information as possible,” Dr. Factora says. “When a person is declared incompetent and a guardian is assigned, you’re talking about lifting constitutional rights and handing that over to someone else to act in that person’s best interest. You don’t want to approach this lightly.”

What’s next

Once they’ve gathered all their information, Dr. Factora and Dr. Saxena want to meet with the Ohio Supreme Court to provide additional information to help doctors fill out the state’s capacity evaluation form – the Statement of Expert Evaluation (SEE) – more effectively.

“Potentially, we’d like to disseminate this statewide through the Ohio Medical Association as a best practice on how doctors can approach the capacity issue when they’re confronted with it,” says Dr. Factora. “If we can get rid of these barriers, it would be much easier for people in the community to bring services to people that need them at home.”

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