Capacity

What it means

Capacity is legal rather than medical, though it usually rests on a clinical assessment. The question is always about a specific decision at a specific time.

A person can lack capacity to manage investments and retain capacity to say where they want to live, or to appoint somebody to help. A diagnosis of dementia is not by itself a finding of incapacity.

It can fluctuate. Someone may have capacity in the morning and not in the evening, or during an infection and not after it.

Why it matters

It is the hinge on which everything turns. With capacity, a parent can sign a power of attorney in an afternoon. Without it, the family is looking at a court process.

It is also why the answer to "is it too late?" is so often "ask, today" — the threshold for appointing somebody to help is generally lower than for complex transactions.

When you are likely to meet it

• When a parent's memory or judgment has begun to change.
• When a notary or a lawyer declines to proceed with a signing.
• When a court is asked to appoint a guardian or conservator.

How this varies by state

The standard for capacity, who may assess it, and what a court requires as proof are all set by state law and differ by the kind of decision.

Related terms

• Adult Protective ServicesThe state agency that investigates suspected abuse, neglect or financial exploitation of vulnerable adults.
• Benefit triggerThe condition a long-term care insurance policy requires before it starts paying — usually needing help with a stated number of daily activities, or having cognitive impairment.
• ConservatorshipA court appointing somebody to manage the money and property of an adult who cannot manage it themselves.
• Content of an electronic communicationWhat the messages actually said — the half of a digital account that is hardest to reach, and impossible to arrange for after capacity is gone.
• DeclarantThe person who signed the advance directive — named this way because the document speaks for them once they cannot.
• Durable power of attorneyA power of attorney that keeps working after the person who signed it loses the ability to make decisions — which is usually the whole point of signing one.
• Financial exploitationTaking or misusing an older or vulnerable person's money or property. It is usually done by somebody they know.
• Guardian ad litemSomebody the court appoints to speak for an interest that cannot speak for itself in one case.
• GuardianshipA court appointing somebody to make decisions for an adult who cannot make them, usually about care, housing and medical treatment.
• Health care agentThe person named in a health care proxy to make medical decisions when the patient cannot.
• Health care proxyA document naming somebody to make medical decisions for you if you cannot make them yourself.
• Incapacitated principalThe person who signed a power of attorney, after they have lost capacity — and the statutes are explicit that no court has to have said so.
• Instrumental activities of daily livingThe harder-to-see tasks — money, medication, cooking, transport, the telephone. Difficulty here usually appears long before difficulty with bathing or dressing.
• Memory careResidential care designed for dementia — secured, higher-staffed, and more expensive than ordinary assisted living.
• NotarizationA notary public confirming who you are and witnessing your signature, so that a document can be relied on by somebody who was not there.
• PolypharmacyTaking enough different medicines that the combination becomes a risk in its own right.
• Protected personThe person a conservatorship or guardianship is about — and a term whose meaning is not the same in every state.
• Representative payeeSomebody appointed by Social Security to receive and manage benefits for a person who cannot manage them.
• Springing power of attorneyA power of attorney that only takes effect once a stated condition is met — usually a doctor confirming the person can no longer manage their affairs.
• Successor trusteeThe person who takes over a trust when the original trustee dies, resigns, or can no longer serve.
• Testamentary capacityThe mental capacity required to make a valid will. The standard is lower than the phrase “sound mind” suggests.
• Trusted contact personSomebody named on a financial account whom the firm may contact if it is worried — about the account holder's health, or about a transaction.
• Undue influencePressure that overcomes somebody's own wishes, so that a will, gift or transfer reflects the influencer's intentions rather than theirs.
• Authorized signerSomebody a bank permits to transact on an account they do not own. It is access without ownership, and it ends at the account holder's death.
• Successor agentThe person a power of attorney names to act if the first-named agent cannot. Without one, the document can be left with nobody able to use it.

Sahvelo guidance that uses this

• Power of attorney
• Starting the conversation