Guardianship of Incapacitated Adults: A Summary of North Carolina ...

Fundamentals of Social Services Law
November, 2004
John L. Saxon
Institute of Government, UNC-CH
2. In assessing the respondent’s cognitive capacity, the issue is not whether the
respondent’s cognitive abilities are impaired, subaverage, or suboptimal, but
rather whether the respondent’s cognitive abilities are at least minimally
sufficient to make important decisions regarding his or her person, family, or
property.
3. Elements to consider in assessing cognitive capacity: awareness (extent of
respondent’s capacity to perceive, concentrate, remember information);
comprehension (ability to understand and assimilate information); reasoning
(ability to integrate and rationally evaluate information); deliberation (ability to
weigh facts and alternatives in light of personal values and potential
consequences); choice (ability to express in a sufficiently stable and
consistent manner one’s preference or decision).
4. Questions that might be asked in determining cognitive capacity: Can the
individual communicate a definite decision or choice that is stable enough to
be implemented? Can the person understand the facts that are relevant to the
decision at hand? Can the person weigh relevant information based on his or
her own values? Does the person appreciate the nature of the situation and
the possible consequences of his or her decision?
5. Cognitive capacity is rarely an all or nothing matter. It therefore should be
assessed on a “sliding scale” (see attachment). Less capacity is required with
respect to simple decisions and in situations involving low risk and high
benefit or minimal adverse consequences to the individual. More capacity is
required with respect to complex decisions and in situations involving high
risk and low benefit or significant adverse consequences to the individual.
6. A qualified professional may express his or her opinion with respect to the
extent of the respondent’s cognitive (and communicative) capacity. Lay
witnesses and the guardian ad litem may testify or present evidence that
relates to the respondent’s cognitive and communicative capacity.
7. MDE should address respondent’s capacity to make and communicate
important decisions regarding his or her person, family, and property.
Screening tests (such as the Folstein MMSE) may be helpful but are not
determinative, although a score of 18 or less strongly suggests diminished
cognitive capacity.
C. Functional Impairment
1. Functional and behavioral domains that should be considered: ability to
manage property (investment, spending, disposition, etc.); ability to transact
ordinary business; ability to make appropriate decisions with respect to
shelter, nutrition, health care, personal hygiene, safety, etc.
2. Professional assessments that address the respondent’s capacity with
respect to activities of daily living (ADLs include activities such as bathing,
feeding, toileting, mobility, etc.) or instrumental activities of daily living (IADLs
including activities such as managing medications, managing finances, meal
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