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COMMENTARY |
Center on Aging and Work, Boston College, Chestnut Hill, Massachusetts.
THE hallmark of a successful review article is to leave the reader thinking "Yes, and ...." The masterful assessment of decision-making capacity in older adults by Moye and Marson (2006)
has just that impact. They have provided an important summary of the research and clinical base in an increasingly essential area at the intersection of legal theory and practice, behavioral science research, and clinical practice. My comments will focus on two elements alluded to by Moye and Marson: the variability between and among states in emerging definitions of capacity and associated assessment procedures required in each state; and the intersection of state-level variability with one of the most complicated capacity domains, independent living.
STATE VARIABILITY IN DEFINITIONS OF CAPACITY
Sabatino (1996) suggested that each jurisdiction develops a "legal fiction" of a competent person. This fiction, in turn, determines areas for assessment in determining decision-making capacity. In the United States, each individual state has its own set of statutes and regulations that determine the legal fiction for its jurisdiction.
Anderer (1990) noted that states' definitions of capacity have changed over time. The earliest statutes equated advanced age (e.g., the age of 65 years) with incapacity. Once a citizen had reached that age, her or his capacity was automatically in doubt. Subsequently, states increasingly focused on the presence or absence of a disease (e.g., dementia or Alzheimer's disease) as a barrier to decision-making capacity. As Moye and Marson (2006) noted, however, certain aspects of decision-making capacity can be maintained even in the presence of dementia (see the work by Marson et al., 2000, on financial decision making, for example). The next stage in the evolution of capacity statutes was a focus on specific functional abilities or disabilities. As Moye and Marson point out, many statutes focus on four core abilities: (a) expressing a choice; (b) understanding; (c) appreciation; and (d) reasoning. Anderer noted that the most recent set of developments added a necessity for action by the state or jurisdiction. Many states have combined a cognitive test, a behavioral test, and the element of a necessity for action.
The implications for research and practice are clear. Evaluations of the impact of assessment schemes and actions that follow assessments of decision making in older adults must take into account the local jurisdiction's definition of capacity and its implicit assessment model.
INDEPENDENT LIVING: CONSUMER-DIRECTED CARE AND DECISION-MAKING CAPACITY
During the past 20 years, two trends have developed simultaneously that are now beginning to affect older adults and their families in an integrated way: increased emphasis on consumer-directed care in establishing long-term-care plans, and increased emphasis on community-based alternatives to institutional care.
As Moye and Marson (2006) point out, assessing the capacity for independent living requires assessing broad areas that tap both cognitive and procedural skills. As they make clear, this is an area with a "somewhat fuzzy line" between the family, clinical, and judicial roles in responding to an older adult's diminishing capacities.
The Olmstead decision increased the regulatory expectation that states will provide the least restrictive alternative for long-term care. At the same time, increased consumer advocacy, the demedicalization of long-term care, a shortage of trained workers, and states' concerns regarding the costs of long-term care have combined to produce a significant increase in consumer-directed care (Benjamin, 2001; Doty, 2000; Rowland, Garfield, & Elias, 2003). Similarly, the President's New Freedom Commission on Mental Health (2003) called for "consumer driven" approaches and urged the use of demonstration projects to develop evidence-based approaches.
Medicaid long-term care now consumes more than 20% of states' budgets; state policy makers have increasingly focused on how to contain costs, provide the least restrictive care, and provide consumers with increasing control over their care. The Cash and Counseling program initially offered three states (Arkansas, Florida, and New Jersey) an opportunity to use the Medicaid waivers program to achieve these goals (Mahoney, Simone, & Simon-Rusinowitz, 2000).
Early work established the efficacy of these approaches when measured by consumer satisfaction or economic impact (including reductions in institutional care; see Foster, Brown, Phillips, Schore, & Carlson, 2003). Similarly, the Cash and Counseling project assessed the short-term and long-term economic impact of consumer-directed long-term care (Dale, Brown, Phillips, Schore, & Carlson, 2003), with two important findings: during the first year after enrollment, the treatment group members had higher Medicaid personal care expenditures than the control group members, because many members of the control group had received no paid help; by the second year, however, these higher personal care expenditures were offset by lower spending for nursing homes and other Medicaid-covered services (Dale et al.). On the basis of these findings, the Cash and Counseling program has now been expanded to 12 additional states.
Recent analyses have focused on the impact of mental illness on older consumers' ability to direct consumer-directed care. These studies have shown no significant differences in program effects for mentally ill and non-mentally ill program participants (Shen et al., 2006).
These developments ensure that there will be increased attention to assessing older adults' capacity for independent living.
CONCLUSION
Moye and Marson (2006) have provided a valuable review of the recent research on the assessment of decision-making capacity in older adults. Future research will inevitably reflect recent developments in states' legislative definitions of capacity. At the same time, federal and state emphases on consumer-directed, community-based long-term care will make this work increasingly important.
Footnotes
Decision Editor: Thomas M. Hess, PhD
Received for publication July 26, 2006. Accepted for publication August 8, 2006.
References
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