Using capacity assessments to maximise individuals’ autonomy: What information might assist a tribunal?

Does Mrs X have capacity to make financial decisions? In the past, a psychologist undertaking a capacity assessment may have responded with a categorical yes or no, depending on the person’s diagnosis and level of cognitive impairment. A guardianship tribunal would subsequently judge that a person was either capable of autonomous decision making or in need of a substitute decision maker. This view is gradually changing and decision making capacity is now seen as lying on a spectrum. There is now recognition that capacity to make decisions is not static but is influenced by decision type, environmental factors, the quality of the information provided, and the person’s health status which may change over time. Guardianship orders are now limited in scope to particular categories of decisions.

Many psychologists agonise over undertaking a capacity assessment, with awareness that their reports can have crucial implications for the civil liberty and personal autonomy of the individuals concerned. However, the expertise and insights from psychologists’ assessments can provide vital information to assist a tribunal to make the least restrictive order possible, which is always the goal. This article aims to assist psychologists to provide information of most value to the tribunal in maximising the individual’s autonomy within the scope of a tribunal order2. For illustrative purposes, a particular focus on the capacity to make financial decisions has been taken.

Use of capacity assessment instruments

To try to objectively measure key skills for specific capacity decisions, standardised assessment tools which are valid and reliable should be selected. It is important to know which model of decision making the tool is based on, the country it was developed in (as legislation varies) and for what client population it was designed. Clinicians should be wary of score cut-offs that claim to differentiate between people with and without capacity.

Financial abilities range from basic skills of money handling and bill payment, to higher level skills of making decisions about investments and large assets. The Financial Capacity Instrument (Marson et al., 2000) is an example of an objective test examining a range of such financial skills. However, it is not yet clear which skills are fundamental to day-to-day financial management for different ages and client populations (Demakis, 2012).

Financial abilities vary greatly in the general population, due to differing socioeconomic background, education and financial experiences. Some clients may manage effectively in their own environment but perform poorly in an unfamiliar setting, while others may do well on formal testing due to high education or retained monetary skills but have difficulties at home for other reasons. Assessment tools are meant to supplement rather than replace clinical judgement, as a person’s decision making capacity cannot be divorced from the context in which they live.

Providing a comprehensive assessment

Capacity assessments require psychologists to integrate multiple sources of data (diagnoses, clinical interview, test results, informant reports) with what they know about the person’s past and current situation (risks and supports) and also their values (see the 2006 ABA and APA handbook for a detailed discussion of capacity assessment). To maximise the assistance to tribunals, capacity assessment reports should comprehensively cover the following information.

• Premorbid information. What was the person’s previous skill and experience in financial management? They might have been an accountant, or come from a culture where it was customary for a spouse to handle all finances. Lack of experience does not indicate lack of capacity.
• Longstanding values and wishes. Did the person take pride in saving money or paying bills on time? Did they like to help their children out financially?
• Risk and vulnerability. How complex are the person’s finances? Are there risks of exploitation or undue influence? Have there been recent changes in behaviour? Are they facing service cut-off or eviction? Prediction of future risk level is an often overlooked part of capacity assessment, but is fundamentally related to an assessment’s conclusion, as generally there is a need for a higher level of capacity as risk increases (e.g., management of large estates).
• Evidence of failure to manage finances. Evidence of an inability to manage daily finances (e.g., unpaid bills, lost ATM cards) is required, and this should not just be surmised on the basis of assessment of a cognitive disability.
• Availability of financial assistance. What informal assistance is available and what assistive measures have been tried (e.g., direct debits, family assisting with bill payments)? Who might the person trust to help manage finances? This may be family or friends but some people prefer an independent body such as the Public Trustee or an accountant.

Contributing beyond the initial assessment

Psychologists can contribute additional information in their reports to assist the tribunal to maximise the individual’s autonomy and agency within the restrictions of a guardianship or financial management order.

• Treatment recommendations. The report may indicate ways to manage mental health conditions, chronic medical conditions or communication and sensory problems which might be impacting on decision-making ability.
• Cognitive strategies. Assessment results can be used to help maximise a person’s involvement in decisions, and not just to search for evidence of inability. Identify which tasks are still within the person’s capability and which might be particularly difficult, and recommend strategies to support weak areas of cognition.
• Opinion on likelihood of change. It is vital to consider whether the person’s condition is stable, improving or deteriorating. It is desirable that financial management orders last no longer than necessary and are reviewed as needed. Psychologists need to be aware of the principle of providing the least restrictive approach and can assist clients to work towards revocation of an order. Some clients with stable or improving cognitive state might benefit from training in financial skills and awareness of ways others may try to exploit them. As their skills increase, demonstrating an ability to save even small amounts and avoid debt carries weight when asking for revocation of an order (on ‘regained capacity’ grounds). In other situations, an order might be revoked if it can be shown to cause the client distress and that previous risks have reduced (on ‘best interest’ grounds).
• Carer education. Family and carers can be advised about how best to support the person to remain independent for as long as possible. A carer might reduce complexity by setting up direct debits, helping with bills and arranging the pension to be paid in smaller, more frequent amounts.
• Detecting financial abuse. Be aware that close relatives are now the prime suspects for taking advantage of vulnerable individuals. Alzheimer’s Australia (2014) reported that children are not infrequently guilty of “inheritance impatience”. Be wary about relying on just one relative for information.

The vignettes presented below illustrate the least restrictive outcomes that are sought by guardianship tribunals and provide the opportunity for psychologists to see how assessment information may be used to maximise a person’s independence. The area of decision making capacity and how society views people with all types of disabilities is changing quite rapidly. Models of supportive decision making are in their infancy and likely to undergo considerable evolution as the system moves to allowing people with disabilities greater freedoms and the dignity of risk. Psychologists will be part of this change and will increasingly be asked to provide capacity assessments describing a person’s strengths and weaknesses in decision making and how they can be supported to make independent decisions for as long as possible.

The author can be contacted at [email protected]