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Evaluating Vulnerable Populations for Capacity
posted 02.23.2015

By Amy S. Friday

Adults in the United States are generally assumed to function independently. Unless shown to suffer from a condition known to undermine independence, we understand that adults hold privileges such as the right to enter into legal contracts and the right to make decisions for her or his own person and property. We acknowledge an adult’s ability to choose and control personal finances, wills and other legal decisions, independent living circumstances, medical decisions, driving functions and sexual relations.

Advanced age, physical disability, a diagnosis such as dementia, appearance and differing values or preferences are not conditions that should automatically trigger questions of incapacity. Unfortunately, bias against those factors exists, and some capable adults are unjustly stripped of freedoms when they do not fall into widely accepted categories in our society.

Some adults experience situations where they lose capacity over time. A lack of capacity is generally due to medical or psychiatric problems (brain injury, dementia, psychotic illness or emotional disturbance). Red flags for incapacity can include severe or fluctuating cognitive or emotional dysfunction, power displays between people (control, emotional distress) and inconsistency from past behavior.

Capacity is not linked to a specific diagnosis, but is tied to whether or not an individual can make decisions for her or himself in a specific domain at a specific time. Sometimes a person can lack capacity in one area (managing a complex business) but retain it in another (making a personal will). Similarly, a person can lack capacity at one point in time (while recovering from a medical procedure and suffering delusions), but regain it later. When a person is found to lack capacity, the goal is always to promote autonomy while protecting from harm, within the guideline of the least restrictive alternative for help.

Given the importance of upholding our basic liberties and the complex nature of capacity issues, it’s important to use standardized inquiry and documentation whenever a question of capacity arises. Standardization reduces bias, encourages considering all relevant factors, facilitates thinking through complex situations, highlights and justifies why decisions are made and reduces risk for the client and the professionals making capacity decisions.

A standardized, documented process may contain the following sections:

Specific capacity– clarify the specific area in question. Understand varying levels of decision-making (e.g., complex decisions faced by a CEO versus managing limited daily funds).

Specific factors of concern and risk—state the specific medical or psychiatric condition, plus the basic or applied brain or bodily functions affected. Document how those problems relate to the capacity in question.

Undue influence—maintain awareness that medical and psychiatric problems increase vulnerability to manipulation by others.

Client’s values, desires and history—identify the client’s individual characteristics and preferences that may influence an overall understanding of capacity.

Relevant parties—list potential relevant parties who may have information or bias that could influence how the client is perceived and understood (the client, family or significant others, medical and legal providers, friends, employees and caregivers, social services, law enforcement).

In many cases, impairment is severe enough that incapacity is easily documented. A woman with severe Alzheimer’s Disease who cannot remember her own name, living situation, relatives or other personal facts could be quickly identified as lacking capacity to live independently. Some situations are much less clear, and often occur when there are mild to moderate symptoms/impairment and various parties with differing views and opinions. In these circumstances it is advisable to seek consultation from professionals such as attorneys, medical providers and expert evaluators (gero- or neuropsychologists) to guide decisions and actions.

Qualified evaluators will demonstrate: ability to assess older adults; knowledge of syndromes of aging; selection of appropriate age, education, cultural tests and norms; adaptation of assessment approach as needed; knowledge of legal standards and the ability or willingness to testify (if needed).

The data gleaned from an evaluation will cover the categories outlined in the standardized documentation process. It will also likely include data assessing the client’s attention and concentration, processing speed, memory, expressive and receptive language, visuospatial skills, frontal/executive functioning, psychiatric health or problems, and functional or applied skills relevant to the specific area of concern.

Such evaluation data is then used to draw conclusions about the client’s cognitive ability to process information quickly enough to “keep up”; understand a situation; complete basic transactions; comprehend choices and consequences; maintain consistent reasoning and choices; express choices; demonstrate reasoning and judgment; withstand persuasive argument and opinion.

All sources of data can then be used to make a capacity decision and, if necessary, outline a process of thought regarding the least restrictive alternative for help. To determine how to best assist a person in need one needs to balance his or her weaknesses or impairments with strengths and external resources or supports.

Dr. Amy S. Friday is a licensed clinical psychologist in Oregon and Washington, specializing in geropsychology. In 2004 she founded the OPAL Institute (Oregon Passionate Aging & Living) as a vehicle for helping people optimize the aging journey,

This article was brought to you by ASA’s Mental Health and Aging Network (MHAN).

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Assessment of Older Adults with Diminished Capacity—A Handbook for Psychologists Worcester, MA: American Psychological Association; 2008.

Assessment of Older Adults with Diminished Capacity—A Handbook for Lawyers Worcester, MA: American Psychological Association; 2005. (pdf available online with outlines/flowcharts).

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges Worcester, MA: American Psychological Association; 2006.

Sexuality and Aging—Clinical Perspectives by Jennifer Hillman, New York: Springer; 2012.

American Psychological Association;

Psychological Associations (by state; e.g., for the Oregon Psychological Association).

Department of Motor Vehicles (by state).

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