14th Greek Australian Legal and Medical Conference
Cape Sounion, Greece 2013

Εlders and judicial determination of capacity: Reliving the myth of Aeneas and Anchises in Greek courts

Vaitsa Giannouli
PhD candidate School of Medicine, Aristotle University of Thessaloniki

It is well established that the world’ s population is growing older, the main reason being the increase of life expectancy, especially over the past few decades and, as a consequence, there is an increasing number of older individuals worldwide. As a result, many social changes are already occurring and more will be expected in the foreseeable future which, in turn, will pose many challenges to societies and to social and medical sciences. It already appears that one of the most common problems for a large percentage of the older part of the population is the decrease of cognitive or ‘mental’ capacities such as failing memory, language deficiencies, attentional lapses, deficient executive functioning etc. In technical terms such malfunctionings are covered under the diagnostic umbrella of various types of dementias.

Legal capacity is only acquired when an individual reaches a certain level of intellectual maturity. Ethical issues arising from the practice of law and medicine focus mainly on adult patients with diminished capacity, that is (partial) inability to make independent rational decisions. Mental capacity, in this context, is considered as an abstract concept consisting of a number of different, not always dependent on each other constructs in the legal, medical and psychological fields. In the relevant literature there is a fundamental theoretical distinction between competence and capacity, the former having a legal, not medical connotation in regard to the degree of mental soundness necessary to make appropriate decisions on specific issues or carry out specific actions. Accordingly, older adults are presumed to be competent decision makers, unless otherwise adjudicated by the court. On the other hand, incompetence is related to one’s functional deficits due for example to mental illness or mental retardation or any such malfunctioning judged to be sufficiently obvious that the person can not satisfy the demands for the specific decision-making situation weighted in the light of its potential implications (Grisso et al. 1995). Only the court can make a determination of incompetence. In contrast, capacity is defined as the individual’s ability to make an informed decision, according to mental health experts assessments. In this context, any licensed mental health expert may make a decision in regard to the capacity level of an individual. Whether an individual’s capacity to make an informed rational decision or give consent is in doubt, it might be necessary to be referred to a competency hearing or may need the appointment of a guardian. Competence of course is related mainly to a specific situation and is not a global black or white issue, which implies that the question should be expressed in the form of ‘‘Competent for what?’’. Thus, it is apparent that the capacity to make a competent informed decision on some issue requires a careful investigation. We add here that other aspects of the patients mental level or diagnosis are not as relevant as the ability to comprehend and make mindful informed decisions regarding the problem at hand.

A relevant issue is that failing mental capacity may not be easy to distinguish from a normal change occurring in the aging process. This increases the possibility for lawyers and judges to make incorrect decisions about mental incapacity, which raises another common legal issue in regard to competence for the older age group (and especially for those suffering Mild Cognitive Impairment). Moreover, an adult who is presumed to possess legal competence, may lack the capacity to make specific decisions. Psychiatrists, neurologists, neuropsychologists, lawyers and judges, therefore should consider this legal aspect seriously.

The evaluation of competence can take a number of different forms, such as assessment of specific capacities concerning the capacity for medical consent, capacity for sexual consent, financial capacity, testamentary capacity, driving capacity and capacity for independent living. In Greece, no clear standards and valid tests exist or, for that matter, any widely accepted kind of examination in the form of a standardized protocol in assessing capacity for decision making for acts that have legal implications. As a consequence, experts use unstructured clinical interviews for clarifying an individual’s decision making process, which lead to legally doubtful judgments and professional malpractice. This chaotic situation has been mainly due to the unsatisfactory definition and explanation by the Greek Civil Code (articles 127-152). Briefly, this states that generally minors, individuals with mental disorders and individuals under the influence of drugs or alcohol have no right to enter into any legal contracts. However, clear criteria on the evaluation are nonexistent. In addition, the Greek Civil Code and any other formal medical text are not giving guidelines for the assessment and there is an absence of a national policy on this important issue, which causes further problems of unnecessary court hearings for living elders or repetition of legal procedures on questioning the (in)capacity of deceased elders.

In view of the issues outlined above, the aim of the present paper is to throw some light and hopefully, offer a useful tool for assessing the capacity of aged individuals on decision making involving legal issues within the framework of the Greek daily living.  More specifically, the aim of this paper is not only to find out whether and in what degree normal older adults can make specific informed logical decisions on issues with legal implications and act accordingly, but also whether patients suffering from different types and stages of dementias, having similar level of education, neuropsychological profile (based on classic tests) and general similar social experiences, face the same difficulties with normal adults in comparable situations involving law.   

The first thing that should be answered was: «What form of legal capacity does the Greek society consider to be the most important?» One hundred healthy (46 men and 54 women, M=34.90, SD=10.23) participants completed a short questionnaire of what they consider to be an important capacity. The majority of them indicated that they believe that financial capacity in the form of sales, purchases, loans, donations and especially testaments are in the heart of contemporary law problems in courts, but these non-experts could not indicate the way(s) or relevant questions to be answered by experts, that is the requisites in order to give an answer to the ‘all or nothing’ question of competence. Financial capacity is a medical-legal construct that represents the ability to independently manage one’s financial affairs in a manner consistent with personal self-interest and values (Marson & Hebert, 2008). For the examination of this sort of multi-dimensional capacity, a pilot study was conducted with 40 elders suffering dementia (mainly Alzheimer’s disease) and 40 slightly younger healthy adults who were their carers. All participants and their wives/husbands and/or adult children went through a neuropsychological examination. They were also examined with a new test, which was based theoretically on Marson’s et al. (2000) and Griffith’s et al. (2003) conceptual model of financial capacity, with the addition of questions-dilemmas on legal consequences. The present test was found to be both valid and reliable containing some items in the form of tasks and some others in the form of a semi-structured interview, culturally adapted for the Greek everyday reality. Results indicated that there is not a direct relationship of classic neuropsychological tests and general decisional capacity for formal financial affairs. Some elders with impaired mental functioning (lower scores on Mini Mental State Examination) scored better than others with higher scores. So, the as far use,  mainly of MMSE, (but also of MoCA, FUCAS, FRSSD and GDS scores) seem to be misleading and actually these tests may not really give the right information regarding legal decisions in courts. The level of financial capacity impairment on specific tasks or domains as examined by our new test differed dramatically even for individuals with the same MMSE score. Furthermore, the patients that could understand information relevant to the decision that they had to make for the given dilemmas, did not show the same ability for appreciation of the reasonably foreseeable consequences of a decision or lack of a decision on them or their family members. It seems that an elder patient may possess the capacity to make some decisions, but not others, even though under all examined hypothetical scenarios (e.g. will, sale etc.) there are the same financial concepts and the participants should take into consideration similar social and legal information. An interesting preliminary finding is that regardless of MMSE score and type of dementia, individuals with social, academic and occupational history regarding financial affairs (e.g. teller in a bank, retired lawyer) made qualitatively and quantitively better responses (regarding the decision making process- identify the decision to be made, gather relevant information, identify alternatives, weigh evidence, choose among alternatives, describe verbally how to take relevant action and review decision and consequences- about different types of financial transactions). Finally, the majority of the patients could not describe in a satisfying way a possible plan for making a large scale purchase, sale, loan guarantee and will) and at the same time they were susceptible to fraud (in contrast to the scores of their children). For the group of healthy participants a positive correlation was found between their education years, experience with the previous activities and the overall score on the test. Healthy participants seem to be able to handle information in a radically better way, refer to all possible direct and indirect influencing factors and decide (right/in a justified manner, fast/with statistically significant smaller reaction time and with ease according to their ratings on questions about their metacognitive feelings of difficulty and confidence). The astonishing fact is that even though the carers knew that the patients had minor to major problems in thinking or doing the above, none of them was under guardianship.

These preliminary findings show the importance of identifying the varying degrees of specific elements of a specific capacity on which patients have a problem with (e.g. declarative knowledge, or the ability to describe financial-legal concepts, procedural knowledge, or the ability to carry out motor-based skills and  judgment, or the ability to make sound financial decisions) and the need for conducting (if possible) rehabilitation programs aiming at their specific problems or otherwise make it necessary to be under guardianship. Care for the elderly in Greece should be in the center of future research, which will have to clarify the level of freedom for each elder individual on solid scientific basis and not on the basis of personal judgments. Now there is an ever growing need for the clarification of the cognitive underpinnings (by administering in parallel with the above tests, a detailed neuropsychological battery for the evaluation of specific cognitive capacities) that may influence overall financial decisional capacity. Future research should try to elucidate the individual problems regarding financial capacity and the potential of an educational program, teaching or assisting elders on what exactly they can not do, in order to decide as they wish about their belongings and their future handling with the minimum possible intervention by third parties, taking always under consideration the issue of elders’ protection.