Mental capacity in its most generic sense refers to the set of mental skills that most people use in their everyday lives—skills such as memory, logic, the ability to calculate, and spatial abilities. The concept of mental capacity is especially relevant when the court is considering whether a guardianship is necessary for an elderly individual experiencing a decline in cognitive skills associated with aging. In Texas the preference is to avoid a full guardianship of an incapacitated person when possible in favor of a limited guardianship. See Texas Probate Code § 602. In a limited guardianship, the ward retains some degree of self-reliance and autonomy, so the crucial issue for the court becomes which types of transactions and activities will be permitted (e.g., voting, driving, medical decisions, financial decisions). To assist with this determination, courts rely upon the testimony of clinicians trained in assessing mental capacity whose standardized, objective clinical instruments provide information to the courts about an elderly individual’s diagnosis (the cause of the incapacity), and his cognitive and functional performance abilities. This clinical information is vital for determining the particular transactional abilities to be retained by the incapacitated person in a limited guardianship. Although courts rely upon clinical evidence of mental capacity, or lack thereof, it should be emphasized that the issue of mental capacity ultimately becomes a legal issue (e.g., can the contract signed by the elderly widow be revoked; is the most recent will purporting to disinherit the children in favor of a new found friend invalid; should the physician discontinue life-sustaining treatment pursuant to the patient’s advance directive). “The ultimate question of capacity is a legal – and in some cases a judicial – determination, not a clinical finding. A clinical assessment stands as strong evidence to which the lawyer must apply judgment taking into account all f the factors in the case at hand.” ABA Commn.on Law & Aging & Am. Psychological Assn., Assessment of Older
Adults with Diminished Capacity: A Handbook for Lawyers (2005). These legal issues become further complicated because there is no unitary standard for mental capacity; different legal standards may apply depending on the transaction or activity involved (e.g., capacity to make a will, capacity to vote, capacity to enter a contract, capacity to drive, capacity to consent to medical treatment). This paper seeks to identify mental capacity for particular transactions in order to determine the extent and scope of a guardianship.
