This article explores the ethical dilemmas surrounding the process of obtaining consent and assessing capacity for elderly individuals with cognitive impairments. As the aging population grows, so does the careful consideration of their autonomy and protection of their interests in legal decision making. To exercise caution, lawyers can employ strategies such as effective communication, encouraging advance directives and supported decision-making and adhering to ethical standards. Regular monitoring and review of the client’s capacity and preferences are also not to be forgotten.
The general presumption is that if you are eighteen years of age or older, you are considered “capable”. Having capacity means being able to understand the relevant information for decision-making and appreciate its consequences. Under the Rules of Professional Conduct, lawyers are required to thoroughly evaluate and consider whether, given the specific circumstances of the case, they can effectively provide such services with the requisite level of competence. A client's decision-making capacity can be influenced by various factors such as experience, age, intelligence, and mental and physical health. Furthermore, it is noted that capacity is not static and can fluctuate even over short periods of time.
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