Mental Capacity and Advanced Directives (for Illinois)
The Types of Advances DirectivesIllinois Law provides for several types of advanced directives including: health care powers of attorney, financial powers of attorney, living wills and mental health treatment preference declarations, and do-not-resuscitate orders.
Why should you have these?Having these advanced directives in place is crucial in guiding the management of a disabled person's health and finances. However, frequently, a person does not have an advance directive in place when they become ill and the family comes to my office and asks whether I can "prepare a quick power of attorney for mom to sign." I ask the family whether mom has the mental capacity to sign the document. After a long discussion about what "mental capacity" means, the family quickly discovers that mom cannot sign the power of attorney document and we need to set up a guardianship for mom. However, there are ways to avoid this result.
What is mental capacity?Under Illinois Law, a person has mental capacity when he or she is capable of understanding, in a reasonable manner, the nature and effect of signing an advanced directive. The person does not have to be able to understand and explain every technical term used in the document. In other words, the person must understand that, by signing the advanced directive, he or she is giving his or her agent under that advanced directive the power to make decisions on his or her behalf. Of course, as a person develops dementia and that dementia progresses, it becomes more and more difficult to determine whether the person has capacity to sign an advanced directive. Eventually, the person's mental capacity declines to the point that he or she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his or her person because of the progressing disability. Once this occurs, the person can no longer sign an advanced directive.
The NeuropsychologistOne of the best preventative techniques in catching dementia early so that one does not have to go through the murky process of determining capacity, is to have an annual checkup by a neuropsychologist. A neuropsychologist is a psychologist who specializes in studying brain behavior relationships. Neuropsychologists have extensive training in the anatomy, physiology, and pathology of the nervous system and they are able to diagnose dementia and the progress of it with specific scientific tests. In addition, Medicare may pay for the most or all of the cost of the annual exam.
What many recommend is that a healthy senior be evaluated by a neuropsychologist to obtain a "baseline" measurement. This baseline reading can be used later by doctors to measure any appreciable decline in mental abilities. A doctor can then evaluate whether the decline is a part of the normal aging process or is something else, like dementia.