Academic journal article East Asian Archives of Psychiatry

Validation of an Instrument to Assess the Mental Capacity to Sign an Enduring Power of Attorney

Academic journal article East Asian Archives of Psychiatry

Validation of an Instrument to Assess the Mental Capacity to Sign an Enduring Power of Attorney

Article excerpt

Abstract

Objective: To describe the validation of an instrument to assess the mental capacity of an individual to sign an enduring power of attorney.

Methods: An instrument named Capacity Assessment to Sign an Enduring Power of Attorney (CASEPA) was developed following a literature review, focus group discussions, expert reviews, and pilot testing. Chinese persons aged [greater than or equal to]60 years who had a range of cognitive abilities were recruited from elderly care centres in Hong Kong to explore its psychometric properties.

Results: A total of 85 participants were included. For inter-rater reliability, the intraclass correlation coefficient was 0.93 for understanding, 0.87 for appreciation, and 0.84 for reasoning. For internal consistency, the Cronbach's alpha was 0.75 for understanding, 0.74 for appreciation, and 0.86 for reasoning. The content validity was examined by an international expert in mental capacity and psychiatry and by 5 local experts in the fields of mental health, law, psychiatry, psychology, and geriatrics. The clinician ratings correlated with the ability score for understanding (r = 0.74, p < 0.001), appreciation (r = 0.73, p < 0.001) and reasoning (r = 0.73, p < 0.001).

Conclusion: The CASEPA is a potentially useful tool to assess the mental capacity of an individual to sign an enduring power of attorney.

Key words: Decision making; Hong Kong; Mental competency

Introduction

The population of Hong Kong is rapidly ageing and the rate of cognitive impairment increases with age. (1) There is an increasing number of people suffering from cognitive impairment. Western studies have determined that individuals with cognitive impairment demonstrate deficits in financial ability. (23) Such loss of capacity can result in failure to maintain an independent life, additional caregiving burden, or financial exploitation. It is therefore important for individuals who have or are at risk of having cognitive impairment to consider financial planning before they become mentally incapacitated.

An enduring power of attorney (EPA) is a legal instrument that allows an individual (the donor) to appoint attorney(s), while he or she is still mentally capable, to look after their financial affairs in the event that he or she subsequently becomes mentally incapacitated. (4) It is a special type of power of attorney under the Enduring Powers of Attorney Ordinance (Cap. 501 of the Laws of Hong Kong) that was enacted in 1997. (5) While a general power of attorney will cease to be effective if one becomes mentally incapacitated, an EPA will 'endure' the donor's mental incapacity and give the attorney the power to continue managing the donor's financial affairs despite such incapacity. The EPA is regarded as a useful tool to extend autonomous decision-making power in the event of mental incapacity. The 'enduring' nature of EPAs remains the same across different countries. Nonetheless there are variations between countries with regard to the scope of authority and statutory requirements of EPAs. For example, at the time of writing, EPAs in Hong Kong extend only to decisions about the property and financial affairs of the donor. In a number of other countries, including England and Wales, EPAs or their equivalent have a wider scope, and allow the attorney to make personal care decisions for the donor. (5)

Individuals who sign an EPA are likely to be concerned that their mental capacity may subsequently deteriorate. They may also be presently subject to undue influence and/or impaired judgement. To safeguard against the abuse of EPAs, Section 5(2) of the Enduring Powers of Attorney Ordinance (Cap. 501 of the Laws of Hong Kong) requires that individuals who sign an EPA have their mental capacity to do so endorsed by both a registered medical practitioner and a solicitor. (4) The certification of an individual's mental capacity has important consequences. …

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