2000; Langan and Means, 1996).29 Also, the diminishment of decision-making capacity is often a gradual process. Determining when individuals no longer have the capacity to make financial decisions for themselves is often difficult (Nerenberg, 2000a).

The American legal system places great weight on the right of individuals to make decisions for themselves, whether they be good or bad decisions, and limits when someone who has experienced a diminishment of decision-making capacity can have these rights curtailed. Furthermore, the definitions and elements of decision-making capacity tend to vary considerably (Nerenberg, 2000c). A general consensus has developed that an evaluation of incapacity should be based on an appraisal of the functional limitations of the person. However, what comprises a functional limitation and what this appraisal should be based on is frequently poorly articulated and inconsistently applied.30

In addition, a wholesale adoption of a child abuse model can contribute to the infantalization of the elderly and the perpetuation of ageism as the elderly are mistakenly assumed to be like children and to lack decision-making capacity (Capezuti et al., 1997; Gordon, 1986; Kapp, 1995; Macolini, 1995; Nerenberg, 2000a; Tueth, 2000). Physical decline does not necessarily correspond to significant mental decline and there is no evidence that advanced years or physical disability alone render a person incapable of making decisions (Gilbert, 1986; Wilber and Reynolds, 1996). Many, if not most, elderly individuals retain their capacity to make financial decisions for themselves (Dessin, 2000). It has been noted that professionals, especially nonhealth ones, often jump to the wrong conclusion that elderly people have dementia or otherwise lack decision-making capacity (Langan and Means, 1996). Elder persons may justifiably resent the imposition of a paternalistic model that appears to presume their lack of capacity, imposes supervision of their decisions, and seeks to make financial decisions on their behalf or delegate their decision-making authority to others (Kapp, 1995).

29  

Medication levels alone may induce a significant fluctuation in an individual’s decisionmaking capacity.

30  

This evaluation includes an appraisal of the individual’s ability to provide for his or her financial needs, to understand the issues being addressed, to communicate about these issues, to obtain needed financial assistance, to participate in the decisions being made, to understand the ramifications of these decisions, and to provide ongoing oversight of them. See, e.g., Dessin (2000); “The Uniform Probate Code focuses on the ability to make choices by defining incompetence as ‘lacking sufficient understanding or capacity to make or communicate responsible decisions.’”



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