It’s easy to understand informed consent until aging populations become involved.
Millions of families each year grapple with complex legal questions regarding their elderly loved ones. How do you balance someone’s autonomy with their diminishing capacity to make choices?
Let’s dig into…
Informed consent and capacity isn’t a topic to gloss over. When families understand it, they unlock dignified memory care support that works for their loved ones and legally protects everyone.
What you’ll learn:
- What Is Informed Consent with Regards to Aging Adults?
- Why a Person’s Capacity Shouldn’t Be Ignored
- Important Legal Protections to Consider
- How Memory Care Support Upholds your Loved One’s Rights
What Is Informed Consent with Regards to Aging Adults?
When a person is informed about and consents to a medical procedure, living situation, or care decision before it occurs.
Simple, right?
Yes and no. While that definition is technically accurate, informed consent becomes murky with aging populations.
In order for consent to be considered “informed”, three requirements need to be met:
- The individual must be provided with enough information to make a decision. This includes: what’s being proposed (including the risks and benefits) and any alternatives to the original suggestion.
- The individual must understand that information. They must be capable of processing what they were told and grasping how it applies to them.
- The individual must then voluntarily agree to the decision. They can’t be forced or coerced into consent.
Where it gets tricky is medical conditions like Alzheimer’s disease and dementia rob a person of their capacity to meet these requirements. The Alzheimer’s Association estimates 7.2 million Americans aged 65 and older will have Alzheimer’s in 2025. That is a lot of individuals who may be incapable of giving informed consent.
And that number is expected to rise.
This is why it’s so important for families looking into memory care support options such as assisted living in Tigard to understand what consent is and what legal protections exist. A proper care facility will always prioritize a resident’s rights while keeping them safe.
Why a Person’s Capacity Shouldn’t Be Ignored
Did you know…
Legal competency and medical capacity are two different things. Competency is determined by a court while capacity is determined by a doctor.
Capacity can change.
That might sound a little vague, but bear with it. Legal competency is an all or nothing situation. A person is either competent or not.
Not so with capacity.
Because it’s defined by a medical professional, capacity can change based on:
- The progression of their disease
- Time of day
- How complicated the decision is
That medical diagnosis you are worried about doesn’t automatically strip your loved one of their capacity to make decisions.
The NIH estimates that by the age of 55, almost half of Americans will develop some form of dementia. With statistics that high, it’s more important than ever to ensure capacity is accurately measured. Not only because it’s the law, but because it directly affects the rights of your loved ones.
A proper capacity check should ask if the person can:
- Understand the information that is being given to them
- Appreciate that the information applies to their specific situation
- Reason out their options
- Communicate their choice clearly
If those conditions are met, their decision should be honored — even if you don’t agree with it.
Important Legal Protections to Consider
Alright, so what happens if your loved one starts to lose capacity? Thankfully there are legal measures that were put in place to protect aging families.
Advance Directives
An advance directive is a legal document that outlines what medical care a person wants or does not want if they are no longer able to make that decision. Things like life sustaining measures, end-of-life care, and who can make decisions on their behalf are laid out here.
Ideally, this will be put in place long before a person needs it. By the time capacity is diminished, it may be too late to enact an advance directive.
Power of Attorney
Through a durable power of attorney, a person can appoint someone they trust to make legal, financial and/or healthcare decisions on their behalf. It’s one of the best tools you can set your aging loved ones up with.
However, this isn’t the same thing as…
Guardianship and Conservatorship
Say your loved one has not created a power of attorney before they become incapacitated. The court may assign a guardian or conservator to your loved one to help make decisions.
Essentially, this means a person has been deemed legally incompetent by the court to make their own decisions. They are then placed under the guardianship of another (typically a family member).
This is a last line of defense.
Guardianship and conservatorship exist to protect vulnerable adults from financial scams, abuse and so on. However, they also take away autonomy which is why they are used sparingly.
How Memory Care Support Upholds your Loved One’s Rights
When you think about quality memory care support you might think about the medical side of care. While that is a huge part of it, there’s another side that often goes unnoticed; your loved one’s legal rights.
Here’s what that looks like in practice:
- Person-centred care plans: Everything about your loved one; their likes, dislikes, values, and more are taken into consideration when creating a customized care plan.
- Capacity evaluations: Memory care providers partner with medical professionals to routinely check in on your loved one’s capacity. Rather than basing their abilities on a single evaluation, they look for trends over time.
- Family involvement: Families play a vital role in the care journey. That’s why quality memory care includes families in all care decisions and encourages participation whenever possible.
- Staff training: Caregivers are trained to not only manage changing capacities but to communicate effectively with residents where they are at.
Memory care support looks to promote autonomy as much as possible. Even if a loved one can’t make decisions for themselves, they are encouraged to make smaller choices. Whether it’s what they wear, what they eat, or how they spend their afternoon.
Someone who struggles with dementia still has the right to enjoy life.
Wrapping Things Up
Whether you’re starting your memory care journey or just curious about it, informed consent and capacity are two important legal topics to understand.
Here’s what you need to remember:
- Informed consent must be given before any care decision is made. It must also be informed, voluntary, and applied to the situation at hand.
- Capacity is not black and white. Just because a person may not have capacity in one area, doesn’t mean they don’t understand other aspects of their life.
- Legal documents like advance directives and power of attorneys should be put in place long before they’re needed.
- Memory care support wants to protect your loved one’s rights just as much as you do. By enlisting their help, you can rest easy knowing your loved ones are in good hands.
Don’t wait until your loved one needs care to have these conversations. The sooner you and your family begin discussing care, the easier it is to ensure everyone’s needs are met.