DECISION MAKING BY AND FOR INDIVIDUALS OF QUESTIONABLE COMPETENCE
Henry A. Beyer and Mary C. Howell
When a person's capacity to make decisions is in doubt because of mental retardation, dementia, or mental illness, a number of questions arise: Should someone else make decisions for him? Who should this be? What standard should the proxy decision maker use? Are there some decisions that can still be made by the person whose competence is in question? What are they? Who should decide if a proxy decision maker is needed and what will be the scope of her powers?
We will discuss these and related questions in this chapter. We will not provide definitive answers to all of them, in part because the current rapid evolution of law in this area creates considerable uncertainty about many of the answers. However, we will try to reduce this uncertainty by setting forth some general principles and benchmarks to provide guidance for caregivers and families who are faced with these questions.
"Competency" is a term used to refer to a person's decision-making capacity. The word should properly be pluralized--competencies--because there are several types. Two main types are legal competency, the legal right to make decisions and speak for oneself, and functional competency, the psychological capacity to make decisions. Furthermore, both legal and functional competencies can be divided into a huge number of specific competencies relating to the particular decisions to be made.