Civil Competencies

Question 1

Competency BOP

Answer 1

On person alleging incompetence

Question 2

Testamentary Capacity Def

Answer 2

Capacity to make last will/testament

Question 3

4 Understandings for Testamentary Capacity

Answer 3

1. Writing a will and will provides for disposition of property after death
2. Extent of his bounty (at least general terms)
3. Identity and relationship of those who have natural claims on his bounty (natural heirs)
4. (Sometimes) how the property will be distributed and (sometimes) his relationship to the members of his family or effect of his will on others

Question 4

Contested Wills BOP

Answer 4

On person trying to invalidate, usually by CACE

Question 5

If will invalidated by judge

Answer 5

Provisions have no effect, so distr proceeds under any valid that exists or under “intestate succession”

Question 6

Insane Delusions re: Will
Def & Effect

Answer 6

Delusions accounted for only by mental d/o / no basis in fact/no existence except mind of delusional person
Can invalidate will

Question 7

Undue Influence (what it is, elements, result)

Answer 7

Someone manipulates/deceives other with intent causing them to alter will (often romantic or dependency-related)
- Elements of coercion, compulsion, or restraint so will doesn’t represent wishes of testator
- Can cause will to be invalidated, even if testamentary capacity

Question 8

4 Factors Signal Undue Influence

Answer 8

1. Unnatural disposition of property
2. Property disposition made by person vulnerable to influence from person who stands to gain from disposition
3. Person who stands to gain has opportunities to unduly influence testator
4. Person who stands to gain has used influence through improper means

Question 9

Incompetence to Enter Contract

Answer 9

Not valid if 1 party didn’t have true understanding of what was doing, due to mental disability (including cog) meaning unable to appreciate nature of transaction/ramifications. Not just ignorance or lack of sophistication

Question 10

Contract Degree of Competence vs. Testamentary Capacity

Answer 10

Contract higher required bc of adversary interest

Question 11

3 Factors to Consider in Parental Fitness Evals (+ 1 modifier)

Answer 11

Severity of parental MI, SUD, or ID
- Also ability to appreciate/address any special needs of child. May be fit for nml child but not this one

Question 12

Competence to Vote History (& Rejected Standards)

Answer 12

Many states fairly recently had laws restricting or barring MI/ID (“idiot,” “lunatic,” “insane”), but efforts to remove status-related barrs
- Rejected standards that they have “intelligent understanding of the issues at stake” and be literate

Question 13

3 Pieces of Possible Evidence Incompetent to Manage Finances

Answer 13

1. Squanders money
2. Hoards assets to point of depriving self or family of necessities
3. Easily financially victimized by designing persons

Question 14

2 Types of Guardians

Answer 14

Guardian of person (plenary)
Guardian of estate (conservator)

Question 15

Guardianship Standards (Gen, Trend, Consideration)

Answer 15

Often vague and variable, some states moving towards functional definitions that lack ability to provide for their basic functional needs.
- Before guardian appt’d, needs to find there is a need for guardian & no less restrictive alternative

Question 16

5 Possible Alternatives for Guardians

Answer 16

Guardian of estate only
Appt of a representative payee for SS benefits
Custodian of VA funds
Trust
DPOA

Question 17

7 Ward Ramifications re: Guardianship of Person

Answer 17

1. Legally, ward is non-entity
2. Can’t enter contracts
3. Can’t manage funds
4. Can’t file lawsuits
5. Might not be able to vote
6. Can’t consent to surgery
7. Rebuttal presumption that lacks testamentary capacity

Question 18

Guardians w/r/t Consenting Psych Hosp

Answer 18

• Vary across states if they can, which means that incapacitated person might have to be committed, even if guardian would consent

Question 19

Materiality of the Information Standard Other Name

Answer 19

Reasonable person standard

Question 20

Truman v. Thomas Significance

Answer 20

Extension of Canterbury v. Spence where not only r/b of procedure, but also r/b of no tx

Question 21

Assented vs. Consented

Answer 21

Assented when agree to tx w/o elements of informed consent, only adequate in certain cases (like somebody already incompetent)

Question 22

Depression and Capacity to Consent to Tx

Answer 22

Can obviously distort judgment about possibility of anything improving, but gen, mild-mod depression may not distort judgment about life-saving tx, and decision didn’t change when depression cleared

Question 23

Schizophrenia and Capacity to Consent to Tx

Answer 23

Substantial proportion of inpts showed some deficits in decision-making more often than those w/o MI, but majority performed adequately

Question 24

Favorable Risk-Benefit Ratio of Procedure

Answer 24

Low test of competency if pt consents, high test if refuses

Question 25

Unfavorable Risk-Benefit Ratio

Answer 25

High test of competency if pt consents, low test if refuses

Question 26

Psych Inpt Privileges and Consent

Answer 26

Privileges and perks can't be contingent on agreeing to tx, but absence of tx, pt behaviors/sx might clinically preclude certain reductions in restrictions

Question 27

4 Exceptions to Informed Consent

Answer 27

Emergency Incompetency (seek out consent from guardian/substitute decision-maker) Waiver Therapeutic Privilege

Question 28

Waiver (what it is, req)

Answer 28

pt can waive medical decisions to physician, but must be competent/documented - Must discuss right to be involved in process and reasons for declining, and that discussion must be documented

Question 29

Problems with Therapeutic Privilege

Answer 29

Basically at risk to "swallow the rule" of informed consent if overly paternalistic/abused, can't withhold information just bc telling the pt would make less likely to consent to tx

Question 30

Therapeutic Misconception

Answer 30

Tendency of research subject to believe research is for their therapeutic purposes instead of to answer a larger study question

Question 31

Reason Autonomy-Paternalism Ethics Heightened in Research

Answer 31

Experimental tx rarely intended for participants' direct benefit

Question 32

Advance Direct Def

Answer 32

Instruction from competent person that directs/authorizes certain actions in event they become incapacitated for that decision

Question 33

2 Types of ADs

Answer 33

Decision Directives (Living Wills) Proxy Directives (DPOAs, HCPOA)

Question 34

Possible Problems w/ Decision Directives

Answer 34

- Might not envision all possible scenarios or advances in medical science that might change px

Question 35

When do Proxy Directives Take Effect

Answer 35

Usually when pt's physician determines pt lacks capacity to make decisions

Question 36

PAD Desired Benefit

Answer 36

Hope to support person-centered care and minimize coercion

Question 37

Legal Decision-Maker Priority

Answer 37

Spouses Adult Children Parents Siblings More Distant Relatives

Question 38

Supported Decision-Making

Answer 38

Adopted by UN for people w/ disabilities, recognizes some individuals might need supports/assistance in decision-making, but they still have capacity to be own decision-makers

Question 39

Supported Decision-Making vs. Shared

Answer 39

Shared allows another person to share in the decisions, supported means they get support to make their own decisions

Question 40

3 Models of Vicarious Decision-Making

Answer 40

1. Explicit pt choice (when has made wishes clear during period of competency) 2. Best Interests 3. Substituted Judgment

Question 41

Best Interests Decision Making

Answer 41

Decision-maker advances what believes to be ward's best interests; what most people would want in similar situation (not idiosyncratic methods of ward)

Question 42

2 Difficult Scenarios for Substituted Judgment

Answer 42

Ward has never been competent (e.g., ID) Has never voiced a preference