| Description |
1 online resource |
| Contents |
Preface; Contents; List of Abbreviations; Chapter 1: The Challenges Presented by the Assessment of Legal Capacity; 1 Introduction; 2 Terminology; 3 Challenges to Assessing Capacity; 3.1 Mentally Disabling Conditions; 3.2 The Impact of Ageing; 3.3 Societal and Familial Perceptions; 3.4 The Legal and Medical Tension; 3.5 No Uniform Approach; 3.6 Education and Ongoing Training; 3.7 Cost; 4 Conclusion; References; Cases; Chapter 2: Therapeutic Jurisprudence; 1 Introduction; 2 Definitions; 3 The Utility of Therapeutic Jurisprudence; 3.1 Incompetency Labelling and Individual Autonomy |
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3.2 The Dualistic Nature of Autonomy and Protection3.3 The Neutral Fact Finder; 3.4 The Least Restrictive Alternative; 4 Limitations of Therapeutic Jurisprudence; 4.1 The Identity Dilemma; 4.2 The Definitional Dilemma; 4.3 The Dilemma of Empirical Indeterminism; 4.4 The Rule of Law Dilemma; 4.5 The Balancing Dilemma; 5 Application to the Capacity Context; 5.1 Testamentary Acts; 5.2 Supported and Substitute Decision-Making; 6 Conclusion; References; Chapter 3: Legal Capacity; 1 Introduction; 2 The Nature of Legal Capacity; 2.1 Financial and Testamentary Capacity |
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2.2 Capacity to Make Lifestyle/Health Decisions3 Assessing Capacity; 3.1 The Presumption of Capacity; 3.2 Cognitive and Functional Capacity; 3.3 Decisional and Executional Capacity; 3.4 The Functional, Status and Outcome Approaches; 3.5 A Fixed or Sliding Threshold; 3.6 The Legal and Medical Intersection; 4 Principles of Capacity Assessment; 4.1 Autonomy, Protection and Beneficence; 4.2 Rationality; 4.3 Ethical Considerations; 5 Select Models of Capacity Assessment; 5.1 The Capacity Assessment Toolkit; 5.2 The Six Step Capacity Assessment Process; 5.3 Standardised Tests |
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5.4 The Two Stage Capacity Assessment Model5.5 A Conceptual Model of Capacity Assessment; 5.6 The Financial Capacity Assessment Model; 5.7 The MacArthur Treatment Competence Study; 6 Conclusion; References; Cases and Legislation; Chapter 4: Testamentary Capacity; 1 Introduction; 2 Testamentary Capacity; 3 Insane Delusions and Lucid Intervals; 4 Statutory Wills; 5 The Golden Rule; 6 The Adequacy of the Existing Assessment Paradigm; 6.1 ̀Practical ́Concerns; 6.2 Mentally Disabling Conditions and Testamentary Capacity; 6.3 Evidence about Testamentary Capacity; 6.4 The Role of ̀Expert ́Evidence |
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6.5 Contemporaneous and Retrospective Assessment6.6 Cost; 7 What to Assess; 8 Conclusion; References; Cases and Legislation; Chapter 5: Substitute Decision-Making; 1 Introduction; 2 Enduring Documents; 3 Relevant Principles; 4 The United Nations Convention on the Rights of Persons with Disabilities; 5 Capacity to Make Enduring Documents at Law; 6 Witnessing Provisions and Capacity Assessment; 7 Evidencing the Loss of Legal Capacity; 8 Conclusion; References; Cases and Legislation; Chapter 6: Capacity Assessment: An International Problem; 1 Introduction |
| Summary |
This book discusses theoretical issues, standards, and professional considerations arising when legal and health practitioners undertake legal capacity assessments in the context of wills, enduring powers of attorney and advance health directives. The potential loss of cognition can erode autonomy as individuals lose the ability to make their own legally recognised decisions. This is an inescapable problem with significant legal, social, health and policy repercussions. This work synthesises and critically analyses the existing literature, including some of the best assessment models and guiding principles internationally, to generate a new methodology and understanding of what capacity assessment best practice means. This includes the impact of assessments on individual autonomy - the ideal method building upon respect for both autonomy as well as fundamental human rights. The triggers to assess capacity, who to involve in the assessment process, as well as how to conduct that assessment process are discussed. The crucial relationship between the legal and health professionals involved in assessments, including growing concerns around practitioner liability, is also explored. This analysis is undertaken through the innovative use of a therapeutic jurisprudence lens, the effect of which is to contribute new knowledge to this complex field |
| Bibliography |
Includes bibliographical references and index |
| Notes |
Online resource; title from PDF title page (EBSCO, viewed June 7, 2017) |
| Subject |
Capacity and disability -- Evaluation
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Cognition disorders in old age -- Testing
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Cognition -- Testing.
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Decision making -- Testing.
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LAW -- Administrative Law & Regulatory Practice.
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Cognition -- Testing
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Decision making -- Testing
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Ability.
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Mental illness.
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Assessment.
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Decision-making.
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Wills.
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| Form |
Electronic book
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| ISBN |
9783319543475 |
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3319543474 |
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3319543458 |
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9783319543451 |
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