Ethics

Capacity is an issue of importance in the area of healthcare law impacting the elderly (Facts about Law and the Elderly, 1998).  Defined as the ability to understand relevant information and make decisions to meet ones essential daily needs, the issue of capacity has interested me since one of mothers aunts drew up a living will to protect herself from poor healthcare service in case she loses her capacity in the near future (Facts about Law and the Elderly).  Given that an older person may easily lose his or her capacity through a debilitating disease such as Alzheimers, the states of America have developed various tests to determine whether an individual has the capacity for decision making.  Some of these tests are based on knowledge about a specific condition affecting a person.  Others are built on the question of whether an individual has the power to make decisions and communicate the same.  The abilities of a person to manage finances and make healthcare decisions are also taken into consideration when deciding whether a person has capacity by law (Facts about Law and the Elderly).
   
When state law determines that an older person does not have the capacity to manage his or her healthcare apart from other significant issues of life, it allows for the appointment of a guardian for the older person (Facts about Law and the Elderly).  Guardianship is defined as a legal relationship that has been established after a court hearing during which the judge appoints a legal guardian for the older individual who is incapacitated (Facts about Law and the Elderly).  The guardian of an older person often has the legal right to make medical decisions for him or her (Facts about Law and the Elderly).
   
The problem of incapacity may also be addressed by the elderly with the use of living wills and the Health Care Power of Attorney.  Both the living will and the Health Care Power of Attorney may be made by an older individual before he or she has been incapacitated because of a debilitating sickness (Facts about Law and the Elderly).  The main difference between legal guardianship and the Health Care Power of Attorney is that the latter is made by the elderly individual who trusts another person to look after his or her healthcare needs following incapacitation.  On the other hand, legal guardianship is determined solely by courts of law.  A living will is an entirely different legal document altogether.  This document is created to set out the wishes of an individual in the event that he or she becomes incapable of communicating the same wishes in the future regarding extended medical treatment.  The living will holds the elderly persons physician responsible for abiding by the law.  Once the physician has received a Directive, he or she is bound by law to honor the wishes of the older person who has created the living will (Estate Planning FAQs).
   
I believe that my mothers aunt made the right decision to draw up a living will in case she is incapacitated in the future.  Although I am not aware of her medical problems at present, I consider it wiser for older individuals to draw up living wills or the Health Care Power of Attorney than rely on courts of law to appoint legal guardians.  With this wise decision, my mothers aunt and countless other older persons may protect themselves from elder abuse to boot.