By the end of the year, attorneys who handle wills and other legal documents for seniors can get a holiday present that will help them do their jobs better _ a handbook on how to judge the mental capacity of their clients.

Committees of the American Psychological Association and the American Bar Association are developing the handbook titled, "Assessment of Older Adults with Diminished Capacity: A Handbook for Attorneys."

When an attorney draws up a will and a persons signs it before witnesses, the person must be of sound mind and not subjected to any undue influences. An attorney may later change the will at the person's direction as long as the person is of sound mind.

The stipulation of "a sound mind" may create a problem for the attorney drawing up the will or later changing the will to conform to the person's wishes. Attorneys are not experts in evaluating mental competence, and they usually must rely on their subjective judgments and the judgment of family members.

Attorneys also must determine mental competence in other situations.

A living will, for example, instructs physicians and family members about the use treatments that would prolong life artificially when death is inevitable. Usually the instructions call for withholding such treatment to let nature take its natural course.

Each state has its own procedure for creating a legally valid living will. However, state regulations usually call for an attorney to draw up the wishes of a client in a document created for a mentally competent client. The client must again be deemed to be of sound mind.

The issue of competency also arises when older adults enter a hospital or nursing home. Under the Patient Self-Determination Act of 1991, patients who enter a health-care facility must be told that they may express their preference for receiving or withholding life prolonging treatment. Some of those entering a hospital or nursing home may not be sufficiently competent to make a rational decision, especially if they are facing a medical crisis.

An alternative to a living will is a durable power of attorney in health-care matters. In the legal document a single relative or friend is designated to make a health-care decision on behalf of a person when that person is suffering severe illness or mental incapacity. The procedure resolves the crisis that would otherwise occur when family members disagree among themselves about continuing the life-prolonging treatment.

A recent study revealed that 90 percent of older adults surveyed accepted the concept of a health advance directive, but only 15 percent actually had arranged to have completed one.

Researchers at the University of Southern California discovered that the most important reasons for terminating life-prolonging treatments were the mental capacity of the patient and pain suffered by the patient. The least important reasons included the age of the patient.

Health care professionals need to make a greater effort to inform older adults about health advance directives and how they would provide fulfillment of their wishes at the end of life.

(Dr. Donald H. Kausler, emeritus professor of psychology at the University of Missouri-Columbia, is author of "The Graying of America: An Encyclopedia of Aging, Health, Mind, and Behavior." E-mail him at dkausler2(at)aol.com.)

Copyright 2004 Scripps Howard News Service

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Last updated: 12/16/2004 - 08:20 AM