Guest Post: What is Fluctuating Capacity?
by Family Councils Ontario
This is the first in our new Guest Blog series.
By Lisa Feldstein, Lawyer practicing Family Health Law™ at Lisa Feldstein Law Office.
Have you ever felt like over the course of the day your loved one becomes a different person? Maybe in the morning your spouse’s memory is fine and he acts like himself, but in the evening he is aggressive and forgetful. Perhaps the changes you see coincide with medication or environment. You may find yourself saving serious conversations for the times when you loved one is most “present” because you want to ensure you will be heard and understood.
In law this phenomenon has a name: fluctuating capacity.
When a person has fluctuating capacity it can become very challenging to know whether they are legally permitted to make their own decisions. This can become especially nightmarish for someone who is helping manage money for a friend or relative. Issues often arise when people with capacity issues are given access to cash – even if done with the best of intentions. The person responsible for and/or helping with the management of money could be asked to account for the money and could even be sued for money that was spent improperly or cannot be tracked. If there are disputes in the family, fluctuating capacity can exacerbate and over-complicate them because people will predictably rely upon the statements of their loved one that best match their own views.
Fluctuating capacity can also present challenges for health care providers who are not confident whether their patients have capacity to consent to medical treatment. Technically the most recent prior capable wish prevails, but that is not always easy to determine in practice.
While you should always seek professional advice particular to your situation, here are some tips that may be helpful if your loved one seems to have fluctuating capacity:
- Confirm what decisions your loved one is or is not capable of making (you likely need to seek professionals’ opinions to determine this).
- Find out what legal authority you have – which decisions, if any, are you authorized to make?
- Learn about the obligations imposed on you as the person’s decision-maker. If you are a decision-maker under the law, whether for property or any care decisions, there are a bundle of legal rights and obligations that may apply to you.
- Document well. You may be asked to explain your decisions at a later date, and recordkeeping might even be one of your legal obligations.
- Do not make assumptions. Consent and capacity law is not an area where common sense prevails. For example, people often assume they are allowed to act under a Power of Attorney when in fact they are not.
- Be proactive. If there is a lot of money in the picture, friction in the family or controversial viewpoints about what is in your loved one’s best interests, litigation could be on the horizon. Being proactive can help. Make sure you understand and comply with your obligations from the beginning in order to minimize your own liability and maximize the autonomy of your loved.
- Lisa Feldstein